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Child Support (Assessment) Act : Departures : Section 117 (2) (c) (ia)

Change of Assessment Reason 8A justification

Hi,

I will be representing myself at an AAT hearing into a Change of Assessment : Special Circumstances regarding the CSA's determination of my Taxable Income. I am attempting to understand the Act, which allows a CSA decision maker to depart from the standard formula used to determine a payee's taxable income, and substitute their own figure. Specifically, under what conditions they are allowed to depart.

In the Objection Decision, the CSA officer states that the departure is permitted under : Section 98C (1)(b) of the Child Support (Assessment) Act 1989. :

"(1)(b) the Registrar is satisfied : (I) that one, or more than one, of the grounds for departure referred to in subsection (2) exists, and …"

subsection (2) states that the grounds for departure are the same as those specified in subsections 117(2) and subsections 117(3A) to (3C).

Most of the clauses in subsection 117(2) and 117(3A) to (3C) are very specific about conditions that need to exist before a departure can be made. None of these apply to my specific case.

However, subsection 117(2)©(ia) states the following :

"(2) For the purposes of subparagraph (1)(b)(I), the grounds for departure are as follows :

[…]

© that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child :

[…]

(ia) because of the income, property and financial resources of either parent; or

[…]

"

This subsection (ia) appears to me to be incredibly vague, and would allow the decision maker to depart from the administrative assessment almost at will !?

If the CSA does not use the ATO's assessed Taxable Income figure, how do they determine, or even 'define' Income ?

To date, in my specific case, using the exact same set of financials, the CSA have determined 3 different 'Income' amounts.

Any thoughts on this would be appreciated.

Kind Regards

Ian
In short you have described what is commonly known as a reason 8 change of assessment (a departure from administrative assessment, is the correct legal term). Another term that has been used is "Deem and destroy".

The fact is, is that the legislation is awful in it's vagueness, as you have yourself found.This is further compounded as the person determining this is basically a pen-pusher who is very unlikely to have the skills that one would or should expect dealing with such a complex area. Furthermore the avenue for redress/correction, via AAT, as that will very likely itself basically have ex-CSP and thus seriously under-qualified persons making determinations. The next level is to appeal that decision in court BUT only on a matter of law, something that even judges aren't really sure about and I firmly believe that many judges are not inclined to look at CS matters and thus find reason to dismiss them.

However, before you can take the matter to AAT you will have to object to the decision and that must be done within 28 days of the decision. An objection will simply be another CSP pen-pusher and is not that likely to do anything but delay matters.


I'd suggest having a search on here (use the search on the blue bar and right click advanced and ensure that you tick forums, change the period to N/A). eg a search argument of +reason +8 +financial + resources gave 237 results. Hopefully you will get some useful information. A search for Ladd and perhaps for Ryan may also come up with some useful information. NOTE! the legislation changed in 2008 so you can ignore posts before July 2008.

Another potentially useful source of information is the CS Guide. Here's a link to the relevant section - CS Guide - 2.6.14 - Reason 8 - a Parent's Income, Property, Financial Resources, or Earning Capacity

You'd also likely want to backtrack and read much of 2.6.



 

Last edit: by Dev_MikeT

Thanks for that very useful reply Mike

Executive Secretary - Shared Parenting Council of Australia
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