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International Child Support - Australia to UK?

CSA Australia policy and Procedures we should anticipate

I am seeking anyone with case or personal experience of child support matters between Australia and the United Kingdom for children living in the UK,



1. What are the responsibilities and requirements of both the payer and the payee.

2.  Specifically if the CSA is complicit in obstructing the FCoA orders and ordered contact what can be done?



3. What processes are recommended and have been successful for both the CSA reviews (COA and complaints, Ombudsman etc) and the FCoA?

4. In layman and legal terms can anyone explain the disconnect between the CSA and FCoA?

In appreciation of your help.
One of the main factors in regards to the Child Support for cases that involve international issues, such as a parent living overseas or the children and the parent are living overseas, this in relation to Australia, is whether or not the overseas location is a reciprocating jurisdiction. The UK is a reciprocating jurisdiction. As it is then if the liable parent (payer) only is overseas then the assessment will be undertaken by the CSA. If the payee is, or more correctly the CS children are, residing overseas then the CSA/Australia would collect from the payer residing in Australia according to the assessment of the  overseas country. The legislation that covers this distinction in Australia is primarily section 24(1)(b)(ii) of the Child Support Assessment Act (note there are 4 components to CS legislation in Australia the Assessment Act, the Registration and Collections act, the Assessment Regulations and the Registration and Collection Regulations). Also note that subsection 2 of section 24 and then sections 25, 25A and 29A add complications (in fact it's pretty hard to fully understand the legislation as section 24(2) says "if all the following apply", which includes an application under section 25 and 25A which if so read requires that the exception to 24(1)(B) only applies for a parent who is also a non-parent.


Child Support Assessment Act 1989 - Part 4Applications to Registrar for administrative assessment of child support Division 1Application requirements - Section 24 said
24  Children in relation to whom applications may be made
   (1)   Application may be made to the Registrar for administrative assessment of child support for a child only if:
   (a)   the child is:
   (i)   an eligible child; and
   (ii)   under 18 years of age; and
   (iii)   not a member of a couple; and
   (b)   except in a circumstance referred to in subsection (2), either or both of the following subparagraphs applies or apply in relation to the child:
   (i)   the child is present in Australia on the day on which the application is made;
   (ii)   the child is an Australian citizen, or ordinarily resident in Australia, on that day.
   (2)   Paragraph (1)(b) does not apply to an application for administrative assessment of child support if:
   (a)   all of the following apply:
   (i)   the application is made under section 25 for a parent to be assessed in respect of the costs of the child;
   (ii)   the parent of the child is a resident of a reciprocating jurisdiction;
   (iii)   the Registrar has not determined under section 29A that child support is reasonably likely to be payable by the parent; or
   (b)   both of the following apply:
   (i)   the application is made under section 25A by a non parent carer;
   (ii)   the non parent carer is a resident of a reciprocating jurisdiction.

Section 12 of the Assessment Act is also relevant as this defines CS terminating events. More specifically 12(1)(f) deals with the international location of the the children. SO a terminating event occurs if:

Child Suport Assessment Act 1989 - Part 1Preliminary - Section 12 Interpretationhappening of child support terminating events (1)(f) said
(f)   none of the following subparagraphs applies any longer in relation to the child:
   (i)   the child is present in Australia;
   (ii)   the child is an Australian citizen;
   (iii)   the child is ordinarily resident in Australia; or

A grey area is with a departure from formula based assessment (normally termed "change of assessment" or COA).

GIMH544 said
1. What are the responsibilities and requirements of both the payer and the payee.
In regard to CS the legislated responsibilities/requirements are, if the legislation applies, which it would ONLY if the person is resident in Australia, is to provide information as required and for a liable parent to pay the liability. There is nothing, other than the very object of the act, that goes anywhere towards placing responsibilities upon the recipient to responsibly spend that which is received. A major flaw of the legislation.

GIMH544 said
Specifically is(sic) the CSA is complicit in obstructing the FCoA orders and ordered contact what can be done?
I can't actually say specifically. However, I strongly suggest that yes. Basically the new legislation introduced from 2006-2008 introduced what was roughly a court orders apply with regard to the level of care (level of care if over 14% results in a reduction in the portion of the cost of the child and thus the CS paid). However, I am aware from numerous sources that; a) the CS's "income" was lower as a result (i.e. the amount collected or transferred, which equates to the amount of taxation by the way of claw-back of FTB (Family Tax Benefits) i.e. for $1 transferred or collected FTB is reduced by 50c) and b) that administratively this area (specialised care) was a nightmare. Anyway in the spring 2010 changes the legislation (note not any of the explanatory gumpf) introduced legislation that ignores court orders and basically allows an abusive parent to deny access to exploit the child for monetary gain by the way of increased CS. Thus court orders mean very little in regard to CS, even though it is clear in the legislation that that the Family Law Courts are higher in the hierarchy (i.e. they can basically overrule/exclude the CSA aspect in orders). I have little doubt that this legislation was surreptitiously introduced and that it was done by/through the CSA abusing the powers and position that they have and also acting not in the interest of those they serve but in their own interest. Furthermore, the net result is that the very children that they are meant to be assisting to support are, due to this legislation change, being systematically destroyed through the abuse of the denial of the humane right for a child to know and be cared for by their parents.

GIMH544 said
3. What processes are recommended and have been successful for both the CSA reviews (COA and complaints, Ombudsman etc) and the FCoA?
I believe that complaints about the CSA are extraordinarily high in comparison to other agencies. Certainly the Ombudsman has ion recent years produced some reports that show that the CSA is extremely lacking in many areas. However, I believe that very little changes as a result and if anything the CSA embark on changes that do the exact opposite.

You may wish to visit the Ombudsman's website where you can view reports. For example in 2010 there was "Department of Human Services, Child Support Agency: Unreasonable Customer Conduct and Write Only policy, November 201014|2010". Basically the CSA abusing customers through the "Write-Only" policy (i.e. where the CSA only communicate through written letters). Sometimes customers initiate write-only (something that is advisable, I am myself a "write-only" customer(sic) and have myself had this abused when the CSA contacted me by phone). Another reports that lambastes the CSA and in the same year is "Report 10|2010  Department of Families, Housing, Community Services and Indigenous Affairs and Centrelink: Review rights for Income managed people in the Northern Territory, August 2010".

It is quite clear that the CSA have changed very little in the bias they apply against the liable through the COA process. In fact I believe that they are complicit in actually increasing this as SSAT (Social Security Appeals Tribunal) very much appear to me making decisions that are clearly very muc in line with the CSA's decisions that are very much out of line of the legislation (e.g. doings things such as deeming credit expenditure as income due to such accounts receiving money to pay them of). I believe that some CSA staff have been moved to SSAT.

The process is to first object to the decision that has been made. If upon receipt of the objection decision and if the decision is still appears to be incorrect then the matter (not all) can be taken to SSAT and they will reach a decision. If this decision is till incorrect then the matter can be taken before a court (Federal Magistrates court) BUT this has to be on a matter of law. I used to advise that as you progressed through the hierarchy of processes that you had a better chance of a just an equitable decision being made. However with what I have seen from more recent SSAT decisions is that you stand no better or worse chance between the CSA and SSAT and that SSAT are very likely now being used to reduce the likelihood that CS payments and thus the tax on children of separation, remains artificially high.


Basically my understanding is that the Family Courts used to determine maintenance which included CS. As other countries were introducing their own systems Australia followed suit.  Freeing the Family Law decision makers from such complex decisions, reducing the cost of making such decisions to the parents but most importantly letting the system tie it in with other Government systems such as Centrelink and the ATO (in fact the CSA still use the ATO's mainframes) and thus to introduce the taxation aspect by the claw-back of FTB. The legislation, as previously stated, can be overridden by the hierarchically superior Family Law Courts (note that Family Courts are themselves a two tier system, the Federal Magistrates Court deals with the lower level less complex cases, while the Family Court of Australia deals with the more complex cases and rarely if ever child support appeals).

I believe that the prime disconnect between the CSA and the Family Law Courts is that the CSA operates not according to the CS legislation but according to policies (PI's or Procedural Instructions) which are basically written with collection/transfer of as much as possible. (note the policies/PI's are not made available to the public).

e.g. If an overpayment of CS is made the policy is that the CSA representative should try to encourage the payer to gift the overpayment to the other parent. This very much in contradiction of the very object of the legislation that children receive the PROPER level of financial support from their parents (section 5 of the Assessment Act, section 4 of the Registration and Collection Act).

The courts (i.e the Federal Magistrates Courts) appear from some of the things they say to be quite disgusted with the decisions they see. However they will rarely do anything other than confirm that the legislation hasn't been interpreted correctly and to then make a ruling that the decision maker redoes the decision making. Which has resulted in the same matter then going to court again (which I believe annoys the hell out of the magistrates).

It is quite clear that the CSA take little heed of court rulings/precedents unless they suite the collect/transfer as much as you can mentality that reigns throughout the CSA and very likely through the hierarchy to the legislators. It is very clear that the CSA try it on very frequently and also as few know how to correctly go about the correction process or do not fear the correction process to take matters to where they should be taken, the CSA very frequently get away with their abuse of their power and thus very much systemic abuse of children of separation.
Thank you Mike T

This is such a complex subject and we are right in the middle of trying to work out the way forward. I am so grateful for your considered response, it is more than we expected. We have made so much progress over the past weeks, asking questions, seeking answers that we are starting to build a picture. Your post provided information that was both disheartening and valuable, thank you again. If you can see fit to help us with the following question and perhaps your insights through the historical background to this crippling problem.



Questions  FLWG


Q1.


The mother earns an income in the UK and has not provided tax returns to the CSA, or competed tax returns for property rental in Australia since 2005. Rental income has been under reported by 75%. This affects the amount of child support I pay. I have requested the CSA direct the mother through the Reciprocal Enforcement of Maintenance Orders Unit (REMO) in the UK to have her income etc qualified. The CSA states they cannot do this because she is an existing client of the CSA (First assessment commenced in Australia 1998). If I can determine a terminating event has occurred the mother must then apply through REMO for child support where income will be qualified.


With regards to section 24 (1)(b)(i), if the child is present in Australia on the day on which the application is made, and then the child is taken from Australia to the UK, where does Section 12(2A) A child support terminating event happens in relation to a person who is a carer entitled to child support in relation to a child come into play?


Does the taking of the child to another country constitute a terminating event even though the application was made when the child was present in Australia? Does a terminating event have any impact on a pre-existing application and the person is, (b) the person is a resident of a reciprocating jurisdiction?


Brief History





Mother and child (both Australian Citizens) departed for  the UK for period of 3 years through FCoA orders. The Orders set out contact arrangements and CS assessed as NIL for the period. Orders were very clear about the mothers responsibility to support fathers access to the child through frequent contact in Australia and the UK


Limited relocation was to take advantage of new husbands (Australian Citizen) career opportunities and high income via UK employment.


Mother opposed return to Australia after 3 year period, refused negotiations on anything but "indefinite relocation"


Mother applied to FCoA  for indefinite relocation to UK


Father self represented at hastily set trial and was unprepared


Consent orders were struck, reducing contact days and reinstating CS as I was unguided in court. Judge would not consider CS because I did not apply to the court


Child support reactivated (?) in early 2010


I became aware (2010) that CSA did not know mother had relocated to UK nor did they read the orders beyond using contact days for calculation. Mother had not advised CSA she had relocated.


CSA have now claimed that since assessment first started in 1998 when the child was born here there is no need for new assessment once child departs Australia


CSA have stated mother is being assessed as international client, father is domestic client but there is no evidence that CSA knew of the relocation at any stage. CSA preventing consideration of relevant concessions to fathers great disadvantage.


Mother has refused CS and contact negotiations initiated by Father and the CSA on fathers behalf. All future ordered contact is at risk.


Mother has demanded and asked CSA to collect full child support amount at every opportunity.


End
Ok I think I understand. Basically there are two issues. Should you be paying the CSA(Aus) and should you be paying what you are paying and if not how can I go about getting it changed.

The answer is Yes to the first. Section 12(2A) is basically saying that if the payee moves to a non-reciprocal jurisdiction then there is a terminating event . As I said 12(1)(f) is the pertinent section and as the child is an Australian citizen the CSA can grasp the greater amount collected or transferred, rather than the have the UK CSA intervene. It would surprise me little if the CSA actually advised as such and also advised that they would accept whatever income the parent said.

The answer to the second is very likely not. However, it can virtually be guaranteed that the CSA will not lift a finger to assist in the very object of the act to be enacted as yet again to ignore section 5 is to their benefit. The correct way to go about this is to apply for a change of assessment under reason 8. However, as per the Ombudsman's report previously mentioned, the CSA are particularly biased in this area and have basically ignored the report etc. There is very little doubt that the CSA would simply take this as a chance to further increase what you pay (it's not been termed by some as "Deem and Destroy" for no reason). If your taxable income is 100% then the next hurdle would be that the CSA have no jurisdiction overseas. They can either hope the overseas authority do what they ask, which would likely be absolutely nothing (as you have experienced) if it meant potentially reducing what they can collect or transfer, or they could take the matter to the court in the overseas jurisdiction, and of course you're far more likely to get blood out of a stone than the CSA properly enact the legislation according to the very object of the legislation.

You could perhaps do the above in the hope that SSAT would correct matters. However, I very much suspect that SSAT is basically now an extension of the CSA.

Therefore the only realistic hope is to take the matter to the CSA, object and then take it to SSAT and then on to court, hoping that the SSAT decision is open to an appeal on a matter of law.

Saying that perhaps have a read through section 4.3.2 (Applications and orders about decisions under the Assessment Act) of the CSA guide 4.3.2: Applications and orders about decisions under the Assessment Act. I'm toying with the idea that perhaps you could get a stay order, based upon any decision that does not include a realistic amount for the rental income (you might be able to get a ball park figure, or perhaps even the actual amount, by going online), is not a just an equitable decision. The problem is that a Judge/Magistrate will likely be viewing any such application as "is this person trying to avoid paying CS", rather than is this person being screwed by the CSA and a deceitful other parent.

GIMH544 said
CSA have now claimed that since assessment first started in 1998 when the child was born here there is no need for new assessment once child departs Australia
That is wrong, the maximum period for which an assessment can apply is 18 months. I think perhaps they meant that there would be no need to re-apply, which is correct. However, that's a moot point as a new assessment will be done whenever you submit a tax return and also if the other parent submits one.

You might want to have a look at section 2.6 and particularly 2.6.14 (easily reachable from the above link), this in regards to COA. However, you would likely also want to have a look at what judgements that you can. Here's a link to the Federal Magistrates Court - Family Law on Austlii (look for those that mention SSAT or CSA (probably only the former exist)) AustLII >> Databases >> Federal Magistrates Court of Australia - Family Law.
Thank you Mike T,

The advice we received from the CSA was a bit unusual, maybe a little clutching at straws. There is enormous confusion about this case on the part of the CSA because there has been no input by the other party, relocation advice, income etc. Your advice about re assessment is valued however the other party has not submitted tax return for 5+ years, actually some to prior to relocation out of the country with the child.

What are your thoughts on this and the CSA acceptance of voluntarily provided income? Income that is neither qualified via UK or ATO tax return has been accepted by the CSA. Your thoughts on this, how it might be approached in an objection process?

GIMH
GIMH544,
              first I have to apologise. Originally I was going to explain about this and how you'd get nothing. However I got a little mixed up with the fixed rate (for those on a low income, i.e. below the maximum standard Parenting Payment Single ($15,909)) and that a level of care of more than 35%, negates this). Instead, I should have said that the income, with insufficient information, should be a "provisional income" of 2/3rd's of AMTAWE (Annualised Male Total Average Weekly Earnings) as per section 58D (or 2.4.4 of the CSA Guide - in the paragraph entitled "Determination of overseas income where parent is a resident of a reciprocating jurisdiction"). 2/3rd's AMTAWE is, for 2011, $41188. Section 58D has been around since the introduction of the new legislation (July 1st 2008). I'm not at all conversant with the previous legislation.

Here's the two:

The CSA Guide - Section 2.4.4: Child support income said
Determination of overseas income where parent is a resident of a reciprocating jurisdiction

If CSA has sufficient information and documents, CSA may use that information to determine an amount of overseas income for the purpose of working out the parent's adjusted taxable income (section 58C). When determining the income of a resident of a reciprocating jurisdiction CSA will look at the parent's income in the last relevant year of income in the country in which the parent lives.

If CSA does not have sufficient information despite requesting income information from the parent or an overseas authority under section 162A, CSA may determine an appropriate adjusted taxable income, which must be at least 2/3 of the annualised MTAWE figure for the relevant September quarter (section 58D). If CSA does not have sufficient information to determine an overseas income and is unable to serve a notice under section 162A on the parent or the relevant central authority then CSA is unable to determine an overseas income for that parent.

Child Support (Assessment) Act 1989 Act No. 124 of 1989 as amended - Part 5 - Divison 7 - Section 58D said
58D  Determination of overseas income if information and documents in Registrars possession are insufficient
   (1)   This section applies if:
   (a)   the Registrar does not possess sufficient information and documents to determine a parents overseas income; and
   (b)   despite requesting, under section 162A, information or documents from the parent or from an overseas authority that are necessary to determine the parents overseas income, the information or documents requested have not been supplied.
   (2)   In making an administrative assessment of the child support in relation to the parent and a child support period, the Registrar may determine that the parents overseas income for the year of income, for the purpose of working out the parents adjusted taxable income, is an amount that the Registrar considers appropriate of at least two thirds of the annualised MTAWE figure for the relevant September quarter.

I'd suggest using the advanced calculator available from the home page to determine what the CS should have been over the last 5 years (the 2/3rds of AMTAWE can be worked for each year out by running any scenario for that year, with the "Show Calculations" check box checked and by then looking for the Self Support Amount (SSA) (it's the second value in the Adults section) and then multiplying the value by 2 (SSA is 1/3rd of AMTAWE).

I'd suggest informing  them, your local Federal MP, the MP with the DHS portfolio, Tanya Pliberesk (or something like that) and so on that they haven't complied with section58D/Section 2.4.4 of the guide, etc. I'd also suggest, again if they haven't applied 2/3rd's of AMTAWE (note the CSA use Annualised MTAWE), seeking compensation for all losses including interest and I'd suggest any overpayments, as per ATO, via CDDA (Compensation for Detriment caused by Defective Administration), as per section 6.11.1 of the Guide. If they have used this then I'd still complain that they couldn't give you a reasonable answer.

Alternately, they may have done something under section 58C (note that this requires sufficient information AND documents to determine such an income).


Here's what section 162A says, in regards to what the CSA should have undertaken in order to meet the object of the legislation:


Child Support Assessment Act 1989 - Section 162A said
162A  Obtaining information in relation to residents of reciprocating jurisdictions
   (1)   If the Registrar does not possess sufficient information and documents to determine the overseas income of a person who is or was a resident of a reciprocating jurisdiction, the Registrar may, by written notice, request the person or an overseas authority of the reciprocating jurisdiction to give to the Registrar such information, or to produce to the Registrar such documents, as are necessary to enable the Registrar to determine the persons overseas income.
   (2)   The Registrar may, by written notice given:
   (a)   to a person:
   (i)   to or by whom child support is payable; and
   (ii)   who is or was a resident of a reciprocating jurisdiction; or
   (b)   to an overseas authority of the reciprocating jurisdiction;
request the person or authority to notify the Registrar, within 60 days and in the manner specified in the notice, if:
   ©   an event or change of circumstances specified in the notice happens; or
   (d)   the person or authority becomes aware that an event or change of circumstances specified in the notice is likely to happen.
   (3)   An event or change of circumstances must not be specified in a notice under subsection (2) unless the happening of the event or change of circumstances might affect the payment of child support or the rate at which it is payable.
   (4)   The Registrar may, where it is reasonably necessary for the purposes of this Act, by written notice, request a person who is or was a resident of a reciprocating jurisdiction, or an overseas authority of the reciprocating jurisdiction:
   (a)   to give to the Registrar, within a reasonable period, and in a reasonable manner, specified in the notice, such information as the Registrar requests; and
   (b)   to attend before the Registrar, or before an officer authorised by the Registrar for the purpose, at a reasonable time and place specified in the notice, and then and there to answer questions; and
   ©   to produce to the Registrar, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.
   (5)   For the purposes of paragraph (4)(a), the reasonable period that is specified in the notice cannot be less than 28 days.
Thank you again Mike T,

We would have eventually arrived at your great advice, but time is always against a person in these situations. We are absorbing your response as quickly as we can in case we need to ask more.

But I have one important question eating at my risk manager hat today; should we complain through the  COA objection or via a separate official written complaint? Or both?
GIMH544 said
should we complain through the  COA objection or via a separate official written complaint? Or both?

I believe both, but it depends upon the following two paragraphs.

If you believe that the decision that the CSA have made is wrong you should object to that decision (it's not a COA objection as you haven't, from what I understand of you situation, undergone COA (Change of assessment). Change of Assessment is a decision made that departs from the standard formula based assessment process and is a rigorous and intrusive process with a massive amount of paperwork to be completed. If you have undergone COA and no details have been sought from the other party then you have most definitely been given a just and equitable decision; a requirement of the COA process.

I you believe that you have not been given the service that the CSA should have given then complain.

Unfortunately the CSA have a track record of perhaps being one of the worst Federal Government bodies in both the way they abuse customers and enactment of the underlying legislation. If nobody says anything then it is highly likely that anything will change to correct this. As such I advocate that any other influences that can be brought to bring about the public being given the service that they deserve from the CSA should be utilised and thus to inform Federal MP's, and relevant ministers.
Posts from this topic have been moved by Secretary SPCA. 1 post have been transferred to Posts split from "International Child Support - Australia to UK?".

Executive Secretary - Shared Parenting Council of Australia
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