Disaster Legal Help Victoria

Managing debt

Information for people who have a debt or who are having trouble with money because they have been affected by a disaster.

I am having trouble paying my debts because I am experiencing financial difficulty. What should I do?

What to do first

Tell your creditor about your situation as soon as possible. A creditor is the person or organisation you owe money to. Ask the creditor to put a hold on your debts while you see a financial counsellor or get legal advice. You can try to change your repayment plans with the creditor by asking for more time to make payments or to pay back what you owe in instalments. Tell the creditor what you can afford to pay and how much time you think you need. A financial counsellor can help you with this. Financial counsellors provide free help for people with debt problems.

Hardship variations

If your debt is a credit card, personal loan or home loan (not a business loan) debt, you may also apply for a 'hardship variation' to change your contract with the creditor. A hardship variation can give you more time to pay (called 'extending the length of a loan'), reduce the amount you are paying with each payment or give you a break from paying anything for a period of time.

You might be asked to provide information about your income and expenses when you apply for financial hardship assistance. Be prepared to show:

  • the reason you are experiencing hardship;
  • your current income and other major financial expenses, for example, other loans; and
  • what repayments you can afford.

If your creditor does not agree to the variation, you may complain to an external dispute resolution scheme, the Australian Financial Complaints Authority (AFCA)External Link . They will look into the details of your situation, talk with your creditor and try to work out an agreement between you and the creditor. In some situations, AFCA may require your creditor to vary your contract. However, they will only require your creditor to vary your contract if you can prove that you will be able to repay your debt in full. You may also be asked to provide evidence that AFCA’s assistance will help you.

You can read more about hardship variations at the ASIC Money SmartExternal Link website.

If you have a business debt, you can still try to change your repayment plan with your creditor. A financial counsellor or legal service can help you do this. AFCA is also able to receive complaints from small businesses. AFCA defines a small business as an organisation with less than 100 employees. This can be a partnership, incorporated trustee, a company and a non-for-profit organisation, as well as some clubs and some charities.

Financial counsellors

A financial counsellor can help you work out how to pay back your debt, write up your budget and communicate with creditors. They can also give you names and numbers of other services that may be helpful, such as for family support or for support with gambling or personal problems. Contact the National Debt HelplineExternal Link .

What can the creditor do if I don’t pay the debt?

Usually a creditor can charge you a higher rate of interest once you are behind in your repayments, as well as seek to recover its legal and enforcement costs in pursuing that debt. There are a number of options available to creditors, depending on the size of the debt, and these include appointing a third party debt collector, or taking you to court to sue you for the money you owe them and/or for possession of any secured property (e.g your home if your have given your creditor a mortgage over your home).

Debt collectors

A creditor may appoint a third party debt collection agency to pursue you for debts. These debt collection agencies either purchase the debt (including the rights to enforce the debt) from the creditor, or act on the creditor's behalf in pursuing the debt, and will attempt to contact you in a number of different ways to discuss its repayment.

In some cases, where a creditor is unable to reach you they may hire the services of a skip-tracing agency which may use a variety of unconventional means to attempt to contact you (i.e. house visits or contacting your relatives or associates) in order to speak to you.

Whilst a creditor is entitled to appoint a third party debt collection agency to pursue you for debts you owe, it is worth keeping a log of how often they contact you, the date and time of contact, the name of the debt collector, how they contacted you and who said what. Although debt collectors are allowed to contact you, they must ensure their actions do not constitute harassment (i.e. any contact must be for a legitimate purpose, be made within reasonable hours and not be excessive etc.). More importantly, debt collectors are not allowed to threaten you with any legal action that they are not legally permitted to take, nor threaten to seize goods they have no entitlement to. Lastly, debt collectors are also under an obligation not to breach your privacy, by revealing certain information (i.e. the fact that you have outstanding debts) to any third parties without your permission.

Further information on when debt collectors can contact you and what they can do is available on the Australian Competition and Consumer Commission (ACCC) websiteExternal Link .

The ACCC and ASIC have jointly produced a guideline for debt collectors and creditors that can be accessed at https://www.accc.gov.au/publications/debt-collection-guideline-for-collectors-creditorsExternal Link .

If you feel like you are being harassed or threatened by a debt collector, call the National Debt Helpline on 1800 007 007 for advice and make a consumer complaint with the ACCC or AFCA.

Going to court

Should a creditor decide to pursue legal action to enforce the debt, they will inform you by sending you a letter of demand or serve you with court documents (for example a 'Complaint' or 'Writ'). The court documents will state how much money the creditor believes you owe them. When this occurs, it is important that you get legal help immediately to understand your rights and obligations, because responding quickly is essential. Should you not understand the contents of a creditor's demand, you should contact Consumer Action Law CentreExternal Link , which specialises in debt and credit matters, or the Federation of Community Legal CentresExternal Link who can assist you with what to do next.

You will only have a short time to act, and a deadline to respond will be specified in the demand you receive. If you do not put in a defence quickly a court order will likely be made against you requiring you to pay all the money you owe (not just the arrears), plus interest and court costs. In the context of a loan, once a court order has been made, creditors are entitled to seek payment of the full outstanding balance and not just the arrears (which can be significant if the outstanding loan is a home loan). If the debt is secured by your home, car or business, it is likely a court will also order the repossession of your home, car or business.

Once a creditor has obtained a court order, it will have a number of enforcement powers, including the ability to repossess certain possessions you own or direct your employer to pay part of your wages directly to the creditor. Please see our Judgement Debt Options page for further information.

It can be very difficult to negotiate or seek a hardship variation from a creditor after the creditor has taken court action against you. For this reason, you should always apply for a hardship variation before a creditor takes court action against you (you may still apply even if you have been served with court documents). Contact theConsumer Action Law CentreExternal Link for advice and help with this. Once a court has made an order against you, creditors are often very unwilling to consider any further requests for hardship.

Credit listing and credit reports

Your credit file is maintained by a number of different independent credit reporting organisations, such as Equifax Australia, Experian and illion. Having an outstanding debt (where repayments are late or in arrears) with a creditor will entitle the creditor to register this on your credit file. Depending on the length of time the debt has been outstanding and the amount overdue, the creditor may list the details of the outstanding debt on your credit file, which is publically available to all credit providers in Australia. If you have made a hardship request, there are restrictions about whether a creditor may disclose your overdue payments to credit reporting organisations. Your credit score will decrease each month your debt remains outstanding, as creditors report on it on a monthly basis.

A poor credit rating will have an impact on your future ability to gain credit, including higher pricing or outright rejection as creditors may consider you as high-risk.

To find out if a court order has been made against you in the past, you can order a copy of your credit report, which will have this information. Your credit report also has information about your credit history, including requests for loans (as well as applications for mobile phones and utilities), late payments and unpaid debts. You can obtain a free copy of your credit report once every 3 months. Otherwise, it is available from Equifax Australia for a small fee.

To learn more about credit ratings, including how COVID-19 may have impacted the reporting of credit ratings, the Australian Retail Credit Association has published a guide on its websiteExternal Link which gives an overview on how credit ratings work.

Note: if you request your credit report, your contact details will then become available to any creditors who check your report. To order your credit report visit the Equifax (formerly My Credit File) websiteExternal Link .

What financial assistance may be available to me if I am affected by a disaster?

Emergency relief

If you are affected by a disaster, emergency assistance is available. Your local fire station, police station and evacuation centre will be able to provide or tell you where you can go to access to food, shelter and other essential services.

Insurance

You should contact your insurer as soon as practicable if you are affected by a disaster. Your insurer will advise you on the appropriate way forward.

If you are in urgent financial need, you may be able to ask your insurer to make an advance payment. This will be deducted from the total value of your claim.

For more information, contact your insurer and check the Insurance Council of Australia’s websiteExternal Link .

Government support

If you are directly affected by a disaster in a disaster declared area and meet the eligibility criteria, you may be entitled to financial assistance from the government. For example, you may be able to access Centrelink’s:

  • disaster recovery allowance, which is a short term income support payment that you may be entitled to if you meet the eligibility criteria and can show that your income has been affected as a direct result of a disaster. The payments continue for 13 weeks; or
  • disaster recovery payment, which is a one off payment that you may be eligible for if you meet the means tested criteria and are adversely affected by a major disaster.

If you are eligible, you will need to apply for the disaster recovery allowance or the disaster recovery payment through Services Australia. For information on how to apply, visit Services Australia’s websiteExternal Link . A financial counsellor may be able to help you with this.

Do I have to make mortgage payments if my house was damaged or destroyed, or if my situation has changed because of a disaster?

The first step is to contact your creditor/lender and request to speak with their hardship/financial assistance team.

When contacting your creditor/lender try to arrange a change to, or the stopping of, your repayments for a period up to 12 months. A financial counsellor can help you with this. Ahead of making your request, it is advisable to have copies available of all relevant documents or other evidence that you intend to rely on to support your request. This could be evidence of the damage or situation, or evidence that you are expecting future funds, which are delayed (i.e. an insurance payout).

If your creditor/lender does not agree to a pause or deferral of repayments, you could also apply for a hardship variation, which is a variation to the terms of your credit/loan agreement and takes into account your current hardship. Such a variation could involve extending the loan term to reduce monthly repayments or increasing your repayments after a certain date. Hardship variations may not be available for all products (i.e loans for investment properties), however it is worth discussing this with your credit provider to see if you are eligible. You can also contact the Consumer Action Law CentreExternal Link or Victoria Legal AidExternal Link for legal advice.

Can I access my superannuation to help pay my debts?

Checking to see if you are eligible

You may be entitled to access a portion of your superannuation early in certain circumstances as determined by the government. Superannuation funds only permit such an 'early release' if the funds are being used to stop your creditor/lender from repossessing your family home (as opposed to an investment property), for medical reasons (or paying expenses to do with the medical needs) or due to the death of someone dependent on you. There are other limited special circumstances, which entitle people to obtain an early release of super; however, these will need to be discussed on a case-by-case basis with your superannuation trustee.

Some people on certain Centrelink payments can access a portion of their superannuation early if they are facing severe financial hardship. You need to contact your superannuation provider to see if you can do this.

Consideration of future impacts

While an early release of your superannuation may seem like an attractive option, it can have serious short and long term consequences and before exploring this option, you should seek professional advice from a financial advisor. The National Debt HelplineExternal Link can help you find a free financial counselling service in your area who can assist you with this.

Making the application

How to apply depends on why you need the money. Apply to the Australian Taxation OfficeExternal Link if you have compassionate grounds. Apply straight to your superannuation fund for any other reason. In this case, ask your superannuation fund how to apply.

There are different forms depending on your reason for wanting to release your superannuation early – make sure you use the right form. If your application is refused, contact a financial counsellor or get legal advice. They can also help you apply.

In certain circumstances, such as seeking an early release of superannuation to prevent the repossession of your home, the Australian Taxation Office will require certain items from your creditor (i.e. your lender/mortgagee) supporting your request for an early release of superannuation. In these circumstances, it is important to check if your lender/mortgagee has any requirements for its cooperation in relation to your request. A lender/mortgagee may not be willing to cooperate if they consider this to not be a viable solution. If this occurs, you should speak to a financial counsellor immediately.

The amount of tax you pay on early releases of superannuation depend on the type of withdrawal. Contact the Australian Taxation OfficeExternal Link on 13 28 61 to find out how much tax you will have to pay.

What if I disagree with the amount I owe?

If you disagree with the amount of a debt owing under a loan you should contact your creditor immediately and raise this issue. You may be entitled to request a copy of your statements for any credit products you have used, which you can review to see exactly what repayments or charges have been applied to your account. If the debt is a credit card, personal or home loan debt, creditors have a legal requirement to hold and provide you with statements of account showing the amount owing. Other creditors such as utility companies or phone companies will also be required to show you a full breakdown of the relevant charges you have incurred.

If you disagree with the amount owing or believe you have been incorrectly charged, you should first lodge a complaint with your creditor and clearly outline in writing the reasons for your disagreement or dispute. Most creditors will have a specialist team to deal with such complaints. However, if your creditor is unable (or unwilling) to resolve this dispute, you can then use a third party dispute resolution scheme.

Depending on the nature of the dispute, you should contact:

Lastly, if you owe a debt to a small business, which you wish to dispute (i.e. a gym) you may file your complaint with the ACCC by making 'A consumer complaint'. More information can be found on the ACCC websiteExternal Link .

Where to get help

National Debt Helpline

Tel: 1800 007 007, Monday to Friday, 9.30 am to 4.30 pm
www.ndh.org.auExternal Link

Consumer Action Law Centre

Tel: 1800 466 477 or (03) 9629 6300 (legal advice line), Monday to Friday, 10 am to 1 pm
www.consumeraction.org.auExternal Link

Consumer Affairs Victoria

Tel: 1300 558 181, Monday to Friday, 9 am to 5 pm
www.consumer.vic.gov.auExternal Link

Financial Counselling Victoria

Tel: (03) 9663 2000, Monday to Friday, 9 am to 5 pm
www.fcvic.org.auExternal Link

Australian Competition and Consumer Commission (ACCC)

Tel: 1300 302 502, Monday to Friday, 8.30 am to 5.30 pm
www.accc.gov.auExternal Link

Australian Taxation Office (ATO)

Tel: 13 28 65 (personal), 13 72 26 (business), 13 10 20 (superannuation), Monday to Friday, 8 am to 6 pm
www.ato.gov.auExternal Link

Tel: 1300 131 060 (early release of superannuation), Monday to Friday, 9 am to 5 pm
www.centrelink.gov.auExternal Link

Reviewed 03 May 2022