5.4.3 Enforcement by civil action
If the Registrar has been unsuccessful in recovering a child support debt by administrative means, there are other enforcement methods available. The Registrar may apply to enforce the debt under the FL Act (5.4.4) or may take civil action to recover the debt. Civil action involves obtaining judgment, and then enforcing the judgment through the court. The Registrar can also recover carer debts and amounts owed by employers by taking civil action.
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Civil recovery action is taken by lodging a statement of claim at the court and serving the debtor with a summons. If the matter is not settled or the debtor fails to respond, the Registrar may apply for judgment to be automatically entered against the debtor.
- Preparation of a summons & statement of claim
- Obtaining judgment
- Garnishee orders
- Warrant of execution
- Summons for oral examination
Preparation of a summons & statement of claim
A summons for recovery of a debt, where the amount of the debt is not in dispute, is known as a liquidated claim (also known as a special claim). The statement of claim must set out the basis for the claim so that the debtor can easily lodge a defence with the court disputing the claim. The summons served must state a time limit from the date of service during which the debtor may dispute the claim. The debtor is advised that a default judgment may be obtained against them after that time.
The summons and statement of claim must be filed with the court, and stamped with the court seal. A sealed copy must be personally served on the debtor. An affidavit of service must be available to prove service and receipt before any further step in the action may be taken. The Rules of Court in the jurisdiction in which the action is being taken will set out the form of summons and requirements for service and affidavits.
A summons will allow a certain time after service, during which a debtor can dispute the claim by filing a defence, called a response, with the court. The response must set out the basis for the dispute and the aspects of the claim the debtor disagrees with. The response must be filed with the court, and a sealed copy served on the Registrar. The application filed by the Registrar will provide the relevant address for service (generally the solicitor on the record or the Services Australia postal address).
If no response is filed, the Registrar can apply for a default judgment. The judgment will be for the amount of the debt claimed, plus costs and interest. Costs are prescribed in the court rules, and generally relate to the amount of the debt. Interest is also calculated at a rate prescribed in the court rules. Judgment will be based on proof of service on the debtor on a particular day, and the lack of a response from the debtor. The court may reverse judgment at any time upon proof by the debtor that they did not receive personal notice of the claim.
If a response is filed, the matter will proceed through any prelisting steps required by the court rules, and ultimately to a hearing. If an amount of money is found owing, judgment will be entered.
Garnishee orders are available under court rules. These orders can attach an ongoing source of earnings paid to the debtor, or appropriate a single payment due to the debtor. However, these orders have much the same effect as administrative powers already possessed by the Registrar (see collection from salary or wages (5.2.3) and collection from third parties (5.2.9)).
Warrant of execution
A warrant of execution is a request addressed to the bailiff or sheriff of the court, asking them to visit the debtor's residence, or other place at which they may have assets. The bailiff or sheriff will seize any goods or possessions which they believe may be saleable in an attempt to satisfy the judgment debt. Often items such as cars, electrical equipment, whitegoods, or furniture will be seized. Generally, clothes and equipment necessary to enable the debtor to pursue their employment are not able to be sold. Bailiffs hold auctions to sell the goods seized from debtors.
In more senior courts, where the debt is large, the sheriff may also have power to sell real estate, or land and fixtures.
Summons for oral examination
An application can also be made for a debtor to be summonsed to appear before a magistrate or a judge and to provide information about their assets and liabilities on oath. This can be useful where a debtor has complex business or overseas financial arrangements. Information obtained from an examination may be followed with other enforcement proceedings.