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Change of Assessment - Reason 2 - Orthodontics

Don't want to share personal information with my ex, will this impact on the assessment?

By way of background:

My ex and I split 11 years ago. Our daughter is nearly 13. She lives with me, and spends time with her father every second weekend and for a portion of each holidays.

He has historically paid very low child support, generally between $500 and $1500 a year, since we split up.

I now earn more than he does, working full time. He works part time, however I am aware that he has two "cash" jobs on top of this part time job, which he does not declare to CSA or to the ATO. Unfortunately I haven't been able to get any action on those jobs from CSA or the ATO as I haven't got sufficient evidence for their purposes. The difference in our raw wages (declared through the ATO) would be around $25K, however with his additional "cash" income I believe the gap would be nominal. He has gone on to have two more children, while I have not had any further children. Those children further lower his liability through CSA.

He owns his own home, has several vehicles (low value), boats, motorbikes and takes regular holidays.

I rent and have one car for which I have a reasonable sized car loan, as well as a personal loan which I am servicing.

Current situation:

Our daughter has recently required surgery to remove several teeth and undertake some preparatory works for orthodontic treatment. Orthodontic treatment has now commenced and I am making regular payments to the Orthodontists practice, which are due to continue for another 18 months.

12 months before treatment, I contacted my ex and sought his support to pay half the costs. He said no (not that politely).

I asked again at the time of treatment commencing, and again he said no (even less politely). Both of these exchanges are in writing.



Given the costs of the orthodontic work ($8000) I would like to put in a claim for the orthodontic works for our daughter under Reason 2.

I have borne the costs of surgery, which were $1350 and I have considered including this costs in the COA claim, but am yet undecided.

I would like to seek that my ex pays half of the costs of the orthodontic work, less what I will or have been rebated from my private health insurance. I am heartened to see that orthodontics have been added to the paperwork as an example of an expense which fits the criteria for a COA under Reason 2.

HOWEVER, part of the COA application form asks that you supply copies of payslips, bank statements, and a budget of your fortnightly expenses including rent, loan payments, utilities, transport costs (rego, insurance, petrol, running costs), groceries, clothing, medical expenses and so on. This information would then be shared with my ex as the other party.

I am happy to share my payslip, as he is already aware of my income, however I do NOT wish to supply any of the other information. I WOULD share it, if it was only going to the CSA agent, but I do not wish for my ex to have any additional information about my personal finances. He has a history of using any personal information provided to him against me, and I do not wish for him to have any ammunition for further attacks on me.

I will of course provide information on the expenditure - I have the treatment plans, payment details and evidence of my costs to date as well as from my health cover provider as to their limits for rebates for my level of cover.

I am aware that I can submit the forms and NOT fill in the budget sections and choose NOT to provide the bank statements etc, however I have been told that the CSA can then require my bank to provide those details and they will share them with my ex. I'm not sure if this is accurate?


Could anyone provide any insight into whether I should submit the COA with an explanatory note stating why I am not providing the other information, my payslip and the evidence of costs for braces and surgery? Is it possible, if the CSA officer does demand to see those details of my personal finances, that I can withdraw the COA?

Under those circumstances (the information being gathered for sharing with my ex) I would rather withdraw the claim and struggle through than share my information with my ex. It would be a struggle though, so I'm feeling very torn. My feeling is that having a COA approved with a value of <$4000 is not worth losing my privacy over, but it is worth pursuing if my privacy can be maintained.

I would be grateful for any advice.
Hi Malady. I understand completely how you are feeling. My partner and I have had to fill in those sort of forms and disclose our most personal financial information in the past, which of course has been passed on to my partners ex.  In more recent years though, it has become obvious that CSA just accept what they are given and run with that. In our latest battle with the ex, she just put down minimal info and supplied no bank statements etc. CSA were happy to accept her limited info and ran with that. It wasn't until we provided a very reasonable and common sense argument that the information was in fact incorrect and deceiving that they even bothered to ask her for clarification. If I were you I would write down what you are comfortable with and leave it wit that. Do not provide your bank statements unless you first block out any transactions that are not relevant etc.   if your ex or CSA challenge this then deal with that as it happens.
Good Luck xx
With regard to the other parent being provided all that is provided by the other parent, that is a requirement to ensure that procedural fairness exists.

The Child Support Guide - 2.6.5 Change of assessment process - application from payer or payee said
Procedural fairness

The Registrar must manage the change of assessment process in a way that is procedurally fair. The Registrar must ensure that a person is aware of any adverse information and that they have an opportunity to be heard and make submissions in support of their case. In addition to providing each party with a copy of the other party's response or application and supporting documents, the Registrar will also advise each party of any additional information that is intended to be taken into account in a way that is adverse to them, and invite them to comment upon that information. This would include information provided by the other party during conversations with the Senior Case Officer, or by a third party.

As malady says blank out any details which infringe upon your privacy or not supply but at the risk on non supply allowing far more scope for the decision maker too decide upon the omitted factors. Perhaps, perhaps not jeopardising the outcome.


Malady said
Could anyone provide any insight into whether I should submit the COA with an explanatory note stating why I am not providing the other information, my payslip and the evidence of costs for braces and surgery?
In reality not without knowing the "Officer", basically they will make a decision and have the power of a judge/magistrate invested upon them (just a gross mistake that they are not required to have anything like the expertise of anything other than pushing pens). Saying that, on your side, is that fact they work in an environment that surrounds with one basic driver, that is to grab as much as they can from one parent and give to the other. As the recipient you stand to win.

An example. I think, that is quite relevant to this topic. I am pretty sure that the CSA guide, for many years has said:

The CSA Guide - 2.6.8 Reason 2 - the special needs of the child said
The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child. They may result in costs that are essential for the childs welfare that are outside the ordinary costs of a child that can be met from an administrative assessment ('Lightfoot v Hampson (1996) FLC 92-663').

…..

The costs of orthodontic treatment that is considered to be essential for a childs welfare may be significant enough to affect the costs of maintaining the child.


Now it says:

The CSA Guide - 2.6.8 Reason 2 - the special needs of the child said
The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child. They may result in costs that are essential or desirable for the childs welfare that are outside the ordinary costs of a child that can be met from an administrative assessment ('Lightfoot v Hampson (1996) FLC 92-663').

…..

The costs of orthodontic treatment that is considered to be essential or desirable for a childs welfare may be significant enough to affect the costs of maintaining the child.

Now, the legislation hasn't changed it stills says at Section(117(2)(ia))  "because of special needs of the child; or" and I'm pretty sure that decision in Lightfoot v Hampson hasn't magically changed over time.

Nope the CSA have, I believe, changed this so they can say a desire is a special need. However, they have also tried to say later when it suits that a desire isn't a special need as in:

The CSA Guide - said
The desire for expenditure on hobbies, entertainment, and holidays does not amount to a special circumstance.
(OH and of course no reference to any ruling saying that it doesn't).


Malady said
Is it possible, if the CSA officer does demand to see those details of my personal finances, that I can withdraw the COA?
Procedurally I can't see that it says you can't but also it doesn't say that you can. However, there are ways out that could perhaps persuade the officer that it would be futile to not remove the application. Once such method would be to try to make the application "too complex" and thus have it refused (sorry I think it's too complex to explain what would constitute too complex). The other way would be to get via an agreement:


The CSA guide - 2.6.5 Change of assessment process - application from payer or payee said
Agreements and change of assessment

Parties can make an agreement while the Registrar is considering a change of assessment application (section 98T). An agreement must be accepted if the Registrar is satisfied that it is a child support agreement (section 98U(1)). However, if the agreement is not a binding agreement, the Registrar can only accept the child support agreement if it is just and equitable to do so (section 98U(2)).

If an agreement is accepted while the Registrar is considering a change of assessment application, the assessment will be based on the agreement rather than on a change of assessment decision, although the change of assessment process may continue for the purpose of varying a provisional notional assessment and therefore the notional assessment amount. The notional assessment is used to determine the receiving parent's entitlement to Family Tax Benefit (section 146D(3)).

Where parents already have an agreement in place, and a new provisional notional assessment has been issued, a parent may request a change of assessment to vary this provisional notional assessment (section 146C). A change of assessment decision will relate only to that provisional notional assessment.

If the agreement ends and the assessment reverts to the administrative formula or is based on a new agreement, any change of assessment decision affecting the previous notional assessment will not affect the assessment. Parents can apply to change their assessment or to vary the provisional notional assessment that is issued under the new agreement by applying for a new change of assessment decision if they still require a change due to the special circumstances in the case.

Here's a link to the CSA Guide - 2.6.5 Change of assessment process - application from payer or payee. That should allow you to easily get you to all the sections as well.
You have a few options
  • Pay for it all yourself and save on the stress.
  • Proceed with a COA & provide whatever information you are comfortable providing, even if you redact some details (black out). The alternative is to provide "nothing" & then have the Bank provide "everything" on your behalf - not a good situation. In any case your ex will also be asked to provide additional data & when it is provided to you, you can always query the accuracy of the amounts amounts again citing the missing jobs and the other evidence.
Why did you proceed with the ortho work prior to getting agreement to pay from your ex? Blindsiding him with a $4000 bill is not the best move.

"I know that you believe you understand what you think I said, but I'm not sure you realise that what you heard is not what I meant."

 
I agree with Willfred that commencing Orthodontal treatment without the other parents consent or at least including the other parent in the decision is not conducive to collaborative parenting. I can see why you are getting a lot of resistance with this. You may find that if the other parent dropped a $4K bomb on you, you would react in the same fashion.
I understand that the child's needs are paramount, but if you throw a COA at someone, they are going to fight back. You should make sure you have no skeletons in your closet if you decide to proceed with this, as I agree you need to protect your privacy.
I actually didn't just drop this on him - I warned him a full 12 months ahead of seeking orthodontic advice that the dentist had advised that our daughter required braces.

I estimated the costs, and emailed him with the details of her needs, the dentists recommendation and the estimated costs, and requested that he consider paying half of those costs, with me bearing all costs and responsibilities for taking her to and from appointments (we both live at least 30 minutes from the orthodontists).

He told me to go engage in intercourse with myself and that his Child Support is to cover those costs.

I replied, copying the section of the child support information available online and stating that the costs were NOT included in his $500 a year child support but were ADDITIONAL costs which I could seek to recover via a COA if he didn't agree to some arrangement.

No reply.

12 months later, I informed him that we were headed to the orthodontist for his opinion on treatment needs, and that I expected the cost to be approximately $8,000 and again explained that this was not covered by child support, should in fairness be borne by both of us as it was needed, and again requested that he consider paying half as the treatment was going to be necessary.

Again, I got an email back telling me to go engage in intercourse with myself and that this was covered by his Child Support.

Again I responded by providing the Child Support documentation from the website, providing the link to the website, highlighting the appropriate sections, explaining that I'd spoken to CSA and suggesting he do the same, and AGAIN inviting him to come to an arrangement with me. At this point I confirmed that the total cost per the orthodontists estimates was X, that the surgery costs would be Y and that his half would amount to Z.

This time, I got a second reply telling me to go engage in intercourse with myself.

I really feel like I DID include him all the way along and gave him ample warning that the costs were coming. In the meantime, he's purchased two new cars, a new motorbike and taken a three week holiday to the coast.

As to why I am only lodging the COA now, my understanding is that you actually can't lodge a COA until treatment has commenced - happy to be corrected, but that was the advice I received from CSA so its what I went with. (I know it came from CSA though, so it could just as easily be rubbish)

As I said earlier - If I HAVE to bear the costs alone then I can do that, but I really don't feel that I SHOULD have to bear the costs alone when he pays a pittance in Child Support and benefits from not declaring over a third of his income.


I appreciate all the advice, and I think I will share what I am prepared to share and redact all non-necessary details, and should the claim be unsuccessful then thats fine.


MikeT, you might be interested to know that on the actual COA forms themselves now as well as on the CSA website they list orthodontics as an example of a "special need" where the benefit is "essential or desirable" for the child's welfare. Thats new - orthodontics wasn't listed a couple of years ago when my partner had a COA against him for his son's braces - which were NOT medically required (unlike my daughters). We put in a response including medical reports and a second opinion stating that the braces were not needed and lost. They must have got tired of people fighting the claims is my reading of it :/
Malady, your reply reiterates my point;  that there was no collaboration on this matter between the parents. You have clearly stated that you advised the other parent of the child's impending dentist work and requested he pay half. You have solely made the decision that the work will go ahead, without any input at all from the other parent and I think this may be the reason why you are getting so much resistance. Do you have 100% care & therefore 100% of the decision-making? If so, then your request is reasonable.

Am I correct in assuming that the relationship between both parents is quite hostile? Do you get resistance on all matters regarding the child?
If this is the case, you likely expected his refusal to contribute, and a COA is may be your only option to get financial assistance.
I believe a COA may also address if he has the "capacity" to pay. This could be problematic if he is hiding wealth or has a wealthy partner that supports him, as his partner is not required to support your child.

I can see this is a very stressful issue for you and wish you peace of mind.
Thankyou BDouble.

I apologise for being defensive. You are right. I made the decision without asking his opinion. Instead I informed him that the visits were happening and the outcome of the appointments so it wasn't a surprise to him - that's what I was attempting to correct, the statement that it was a surprise to him - but you are right, I didn't ask for his opinion as to whether the treatments should proceed.

You are also right in thinking that there is a very long history here. Not consulting him is something I've been doing for probably two years now, since she started high school. He broke my resolve to consult with him four years ago. Prior to that I'd always attempted to consult with him. Always. And always with the same result.

Four years ago when our daughter was starting year five, I asked her father where he thought she should go to high school.

I provided details of open days of the three high schools nearest us, I sent him information packs. I sent nearly a dozen emails over the 18 months between year five and the middle of her year six year.

He responded to each one telling me where to go. In one, he said she should go live with him full time and go to the high school near his house. He lives an hour and a half from us, and our Court Orders say that our daughter lives with me. I asked her what she wanted and she said she didn't want to move, so I said that moving to his house wasn't an option but I'd be open to any opinion he had on schools within a reasonable distance from our home. He told me to f*** off.

I continued to seek his input and when it got to the end of term two and the school was starting transition programs I then sent an email that let him know that I had to make a decision and asked him again for his input. I got another email back telling me to f*** off.

So then I made the decision, enrolled her at the school that I felt was best and informed him of the decision and my reasoning.

Do you know what I got back?

An email complaining that I'd made the decision without consulting him and abusing me for doing so.

After nearly nine years of him doing that pattern of response when I attempted to consult I gave up. I inform but I no longer consult. There are no surprises for him but I won't continue to engage with his games and provide him with opportunities to abuse me when it only postpones the decisions that our daughter needs to have made. I did that for nine years and she deserves better.

My ex and myself had 7 COA cases between  2002 and 2008. 6 initiated by the ex and one by me which I later withdrew. On one of the ex's COA application's she did not provide any expenditure information. I contacted the COA team about this and was told there was no legal requirement for the ex to provide this information and the decision will be based on information provided by each of the parties.

On the last COA application made by the ex I did not provide any information except for my written response to Reason 8. When I got to the interview with the CSA appointed contract lawyer she already had sourced my last tax return from the ATO and the ATO form that you fill in when you start a new job. I had financial information with me at the interview however the lawyer said if I presented that information to her she would need to send it to the other party. The lawyer accepted the information that I verbally told her at the interview and the outcome was quite reasonable. I was quite taken back by the fairness of the lawyer, most unusual for COA cases when compared to some of the terrible decisions I have had previously. For the average person information provided on your tax return is generally a good indication of what your financial resources are. Your tax return shows bank interest and other income from resources you may have. If the SCO thinks that you are hiding financial resources in your application by what is revealed on your tax return they will delve further. If you haven't any skeletons in your closet you don't need to worry about not revealing everything.

A lot depends on the SCO that is appointed to handle your application. When I had my cases heard back in the 2000's you could actually attend a face to face interview with the SCO or contract lawyer. I actually provided information at some of these interviews that was not on my Response such as Centrelink and medical information. All the case officers accepted this information over the table. As I found out recently in my State they don't conduct face to face interviews anymore and all cases are conducted over the telephone. This makes it impossible to provide information that you don't want the other party to see.

As far as withdrawing a COA application I was told by a COA team member that you can withdraw a case anytime right up to the interview and even during the interview. The case that I withdraw was about a week before the interview.

Have you got proof that your ex is undertaking some of his work cash in hand ? This is hard to prove. Unless you can prove that is lifestyle is far in excess of his stated income it is probably not worth pursuing this avenue. He can state that it is his partners financial resources that allow him to live his lifestyle.
Thanks for your input macerg. That is really, really helpful. 7 COAs is a shocking figure… how did you cope?

Unfortunately I can't prove my ex's cash in hand work. I've tried to gather proof in a couple of different ways (contacting disgruntled former business partners, seeking out advertising etc) but I've come up with nothing concrete enough to give to CSA.
His partner works part time and always has. She's in a low income industry so she's definitely not paying their way.

I'm not so worried about changing his income as in getting some input to the costs of the braces.
As well as the 7 COA's you can add 5 Applications for Children's Order's in the FMC with associated court appearances and Family Reports etc; 2 Applications for Intervention Orders and associated court appearances; 2 cases in the Family Relationship Centre's that did not reach court and finally one Parenting Plan. All this happened from 2001 up until recent times.

How did I cope and continue to cope? There were periods of extreme stress, however I always thought to my maintain my presence in our child's life, for his benefit and mine, was worth fighting for. In most of the children's matters I was self represented and in a lot of the cases it was a matter of who would crack first, me mentally or the ex financially! 
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