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COA Reason 1

Hi all,

I am back before the SSAT again his year for another hearing on a matter that has now been running for 18 months. Part of the matter relates to Reason 1 of the COA because I spend more than 5% of my adjusted taxable income travelling to see my children. My travel costs are about 35% of my taxable income and more than the child support amount which I pay.

If the tribunal allow my Reason 1 claim, then by what amount is my child support payment reduced? Is it reduced to zero because my costs exceed the child support amount? Or is it a percentage?

The acts and regulations appear to provide a lot of disterction to the tribunal. Which means that their justification and my defence will have to rely upon case law.

Does anyone know of any case law applicable in this area?

Thanks in advance,

PaulG

A person who can't pay gets another person who can't pay to guarantee that he can pay. Like a person with two wooden legs getting another person with two wooden legs to guarantee that he has got two natural legs. It don't make either of them able to do a walking-match. Charles Dickens
PaulG,
         I'm not sure of any case law that exists, however you may wish to check out the cases mentioned below. Below I have included what the CSA guide says (section 2.6.7) although I suspect that you may well have seen this.

The penultimate section mentions some of the ways that the cost can be incorporated and is basically due to what I personally consider a flaw in the legislation in that the legislation does not specify what specific departures (change of assessment) should be applied. The maximum possible percentage of the costs that you could have taken into consideration is 95% (i.e. according to the guide they discount the first 5% of the costs). Section 98SA of the Assessment Act also states that the registrar cannot make a determination that reduces the CS to $0, it can only be reduced to the minimum payment, an exception is if the paying parent has regular care or more.

Here's what the CSA guide says :-


CSA Guide - Section 2.6.7: Reason 1 high costs in enabling a parent to spend time with or communicate with, a child. said
2.6.7: Reason 1 - high costs in enabling a parent to spend time with, or communicate with, a child

Version 2.3, Last updated 3 August 2009 5:00pm
Information in this version of The Guide applies from 1 July 2008
Refer to the previous Scheme Guide for information until 30 June 2008

Context

A parent or non-parent carer can apply for a change of assessment in special circumstances if the costs of maintaining a child are significantly affected by the high costs of enabling a parent to spend time with, or communicate with, the child.

If the parents capacity to support the child is affected by their high costs in spending time with another child or person whom they have a legal duty to maintain, this can be addressed under Reason 9.

Legislative references

Sections 98C, 98S and 117 Child Support (Assessment) Act 1989

Explanation

There may be a reason for changing an assessment if in the special circumstances of the case the costs of maintaining the child are significantly affected because of high costs involved in enabling a parent to spend time with, or communicate with, the child (section117 (2)(b)(i)).

The phrase 'special circumstances of the case' is not defined in the Assessment Act. The Family Court has held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary' (Gyselman and Gyselman (1992) FLC 92-279).

CSA can decide to change the assessment if the reason is established and it would be just and equitable and otherwise proper to do so.

Who can apply under this reason?

Are the costs high?

High costs that significantly affect the ability to provide for a child

What costs can be included?

How are the costs measured?

Distinguishing the costs from necessary commitments for self-support

Do the high costs make it 'just and equitable' to change the assessment?

The kinds of decisions that reflect the high costs

Duration of a change of assessment for this reason

Who can apply under this reason?

The payer and the payee are both entitled to apply under this reason in relation to the costs incurred in enabling a parent to spend time with, or communicate with, the child.

From 1 July 2008, if a parent has at least regular care of a child, then the only costs in relation to that parent that can be taken into account under this reason are costs related to travel to enable the parent to spend time with, or communicate with the child (section 117(2C)).

Are the costs high?

A parent's costs are high if during a child support period they total more than 5% of the parent's adjusted taxable income for the period (section 117(2B)).

This 5% threshold amount is calculated by:

    * dividing the parent's adjusted taxable income* for the period (which is expressed as an annual figure) by 365; and
    * multiplying by the number of days in the period.

* In working out the 5% threshold amount, CSA will use the parents adjusted taxable income for the child support period in which the costs are, or will be incurred. This will be the income for the last financial year that ended before the start of the child support period, unless:

    * the parent has elected to have his or her child support based on an estimate of his or her current income (in which case, CSA will calculate the threshold using the parents estimated income); or
    * the parent has made an application under section 44 of the Assessment Act to have post-separation income disregarded (in which case CSA will calculate the threshold using the adjusted taxable income determined for that parent under section 44); or
    * the parents adjusted taxable income amount has been varied by

- a child support agreement;

- a court order; or

- a previous change of assessment decision

(in which case CSA will calculate the threshold using the parents adjusted taxable income as amended by that agreement, court order or prior change of assessment decision).

CSA will use the following method to calculate whether the parents costs are high in a case where his or her adjusted taxable income changes within the child support period (for example, because the parent lodged an estimate of his or her income within the child support period):

1. Work out the parents costs for the whole child support period.

2. Divide the child support period up into separate sub-periods according to the dates to which the different adjusted taxable incomes apply.

3. Calculate the number of days in each sub-period.

4. For each sub-period, divide the adjusted taxable income by 365 then multiply the result by the number of days in the sub-period to calculate the sub-period adjusted taxable income figure.

5. Work out the sum of all the sub-period adjusted taxable income figures.

6. Are the costs at step 1 more than 5% of the total amount at step 5?

7. If yes, the parents costs are high.

Other relevant matters

The following factors can also be relevant:

    * whether the arrangements for spending time with, or communicating with, the child are as ordered by a court or agreed between the parents e.g. in a parenting plan
    * whether the application is made prior to the costs being expended. A prior pattern for spending time with, or communicating with, the child can be considered. Anticipated costs can be taken into account but there must be a reasonable expectation that the costs will be incurred; and
    * whether the parent can substantiate the costs.

High costs that significantly affect the costs of maintaining the child

If satisfied that the costs are high CSA must decide whether the costs of maintaining the child are significantly affected by those high costs. The extent to which the costs exceed the 5% threshold is relevant. If the costs are only slightly higher than the threshold they might not significantly affect the costs of maintaining the child.

A parent's actual income in the relevant period as well as their adjusted taxable income will be considered. If the parent's income is high and all of their necessary costs are met (including the costs to enable them to spend time with, or communicate with, the child) then the costs, however high, might not significantly affect the costs of the child.

What costs can be included?

The costs included in the change of assessment application must relate to enabling the parent to spend time with, or communicate with, the child rather than to enjoying that time or communication (Hall and Rushton (1991) FLC 92-252). Telephone and internet costs can be considered as well as accommodation and transport (Gyselman and Gyselman (1992) FLC 92-279). Transport costs include parking costs; road tolls; train, ferry, taxi or bus fares; airfares; the cost of car hire and motor vehicle expenses. However, the cost of entertainment cannot be included, as this is a cost of enjoying, rather than enabling, the time spent or communication with the child.

From 1 July 2008, where a parent has at least regular care of a child, the only costs that can be taken into account under this reason for that parent are costs related to travel to enable the parent to spend time with or communicate with the child (section 117(2C)).

Legal costs

Legal costs incurred by either parent to establish, modify, or enforce arrangements can be significant. However, the courts have held that these expenses cannot appropriately be included as a cost of enabling them to spend time with, or communicate with, the child for the purposes of departing from an assessment of child support for a child (MAV & NTV [2005] FMCAfam 261 (31 May 2005). Senior case officers must consider each case on its merits but will take into account relevant decisions of Courts and Tribunals. Consequently, a change of assessment application based on legal costs incurred by a parent in establishing contact with a child is unlikely to succeed.

Costs of travel

If a parent has at least regular care of a child, the only costs in relation to that parent that can be taken into account are costs related to travel to enable the parent to spend time with, or communicate with the child (section 117(2C)).

The costs of travel can include all costs associated with travel including actual transport costs (airfares, petrol etc) as well as the cost of any accommodation that is incidental to the travel � but not the costs of accommodation that is for the purpose of having contact with the children.

Example

The paying parent lives in Sydney and the children live in Brisbane. The parent drives to see the children and spends the night in Port Macquarie on the way. After he collects the children he pays for accommodation at a caravan park in Brisbane. If the paying parent has regular care of the children he can claim the cost of staying at Port Macquarie and the cost of fuel in driving to Brisbane, but NOT the cost of staying with the children in the caravan park.

How are the costs measured?


Some factors that affect the way costs are identified and measured are:

    * Motor vehicle costs - When calculating motor vehicle expenses CSA will generally accept that the actual cost (rather than the tax rate, AAA, NRMA, RACQ or other motor association rate) is allowable (Houlihan and Houlihan (1991) FLC 92-248). The tax rate is designed for car travel up to 5000 km to take account of the additional costs of acquiring and maintaining a commercial vehicle and is not an appropriate measure for the costs. In considering a parent's actual costs the proportion of use of the vehicle for the purposes of spending time with, or communicating with, the child should be considered.
    * Discounted fares and frequent flyer points - a parent is expected to arrange cost effective travel for themselves or the children wherever possible, and this will be taken into account when calculating the costs.
    * A parent or childs travel costs that are met via an allowance from an employer or salary sacrifice arrangement (rather than the parent paying for those costs directly), are considered to be the parents costs if the allowance/fringe benefit is included in the parents adjusted taxable income.
    * Dual purpose costs - if the costs are incurred for dual purposes or mixed-occasion visits such as a wedding, funeral or business trip only a portion of the costs can be considered.
    * Costs of food - the cost of food for children is not included (Gyselman and Gyselman (1992) FLC 92-279) although the cost of food for the parent on a trip to spend time with the child may be included in extraordinary circumstances.
    * Telephone and internet costs - the relevant portion of these costs can form part of the high costs to communicate with the child.
    * Accommodation costs - accommodation costs must be reasonable and necessary to enable the parent to spend time with the child without being demeaning. Family-type accommodation is regarded as appropriate rather than a luxury hotel.
    * Documentary confirmation of costs - The costs should be verified by appropriate documentary evidence such as hotel/motel receipts, credit card statements, petrol receipts and itemised telephone bills. Costs must be reasonable and in proportion to the income of the parent.

Distinguishing the costs from necessary commitments for self-support

In some applications for a change to an assessment the costs claimed relate to accommodating the children at the payer's home. However, the costs must relate to the child rather than to the parent.

Example

The difference between renting a one-bedroom unit and a 3-bedroom unit to provide accommodation during substantial periods spent with the child.

Any costs relating to a parent's self-support must be separated from their overall costs. CSA will consider the proportion of the accommodation that relates to the children and the frequency of the time spent together.

Do the high costs make it 'just and equitable' to change the assessment?


Once the high costs are established, and the fact that the costs significantly affect the cost of maintaining the child(ren) is accepted, CSA must consider whether it would be just and equitable to change the assessment. The decision must also be otherwise proper.

In considering if it would be just and equitable to change the assessment CSA will consider any court orders made regarding the management of spending time with, or communicating with, the child, especially where the court order directs that costs be shared. CSA will also take into account any relevant parenting plan. CSA will also consider other elements including:

    * the childs need to be supported by, and spend time with, or communicate with, both parents;
    * the contribution each parent makes to the costs;
    * the necessary commitments of each parent relative to their respective capacity to contribute;
    * any hardship which would be caused to either parent; and
    * any other relevant factor.

If the parents current income is different from his or her adjusted taxable income, this will also be a factor for CSA to weigh up in considering whether it would be just and equitable to change the assessment.

The kinds of decisions that reflect the high costs

It may not be appropriate to deduct all of the costs over the 5% threshold from the child support payable because this would shift the whole of the obligation to pay the costs of enabling a parent to spend time with, or communicate with, the child, from one parent to the other.

CSA may make a decision to increase the overall costs of the child by the amount of the costs over the 5% threshold, for allocation between the parents according to their share of the combined child support income, and adjust the amount of child support payable to take into account that one parent is meeting these additional costs directly.

CSA may also increase a parent's self-support amount (referred to as the �exempted income amount� in the child support formula pre July 2008) to reflect the amount that that person would have to earn to meet the costs that exceed the 5% threshold (Houlihan and Houlihan (1991) FLC 92-248). Because costs in excess of the threshold are measured over the child support period, these costs must be adjusted to an annual figure before being grossed up to obtain a pre-tax figure. This is done by dividing the costs in excess of the threshold by the number of days in the child support period and multiplying that amount by 365. CSA will then gross up the parents annualised costs in excess of the 5% threshold, using the appropriate marginal tax rate based on the parents taxable income.

The above approaches allow the parent to use other administrative options such as an estimate of current income and to have changes in care taken into account if necessary. In other cases, the circumstances of the case may indicate an alternative type of decision is appropriate, especially if there are a number of reasons included in the application for a change to the assessment.

Duration of a change of assessment for this reason

Where there is a decision to change an assessment because of the high costs of enabling a parent to spend time with, or communicate with, the child, the length of time of the decision will apply depends on the circumstances of the case. If there is a regular pattern with consistent expenditure, the decision may be of a longer duration than a case where it is irregular and expenditure varies greatly from period to period. Where a pattern is not established but there has been an order of a court in relation to the issue of time spent with, or communication with, the child, a decision for a shorter duration might be made.

I would advise that you also refer to the legislation, basically section 98 (part 6A) of the Child Support Assessment Act.

Sorry that I haven't been much help, however I'd certainly be interested in how things go and also how things have gone to-date as I'm quite interested in COA decisions.

High costs

Thanks Mike,

This is a great help. When the SSAT makes it's decision, I would assume that the order of precedence of referring documents are: 1) legislation; 2) case law; and 3) regulations and guides like the CSA guide. Is that correct?

The CSA Guide proposes various ways of addressing the additional high cost of spending time with the children, however Houlihan and Houlihan (1991) FLC 92-248 is the only technique with heritage in case law. If this is indeed the situation, then this case law is likley to be the only technique which the Tribunal can apply. I need to study H&H in depth!!!

I will join the SRL forum and provide you with some more information on my experiences to date and how this proceeds with the Tribunal. I am quite glad that my CS matter is with the Tribunal but would be really pleased if it was with the FMC. The FMC makes it's decision on the evidence it is presented and possibly adverse inference if evidence exists to a wrongdoing. So it's quite simple, gather the evidence, present it, and make strong submissions based on the evidence. However, the CSA and SSAT use an Inquisitional Model, which means it can make it's own inquires and gather it's own evidence. Also, and in my experience, the tribunal, like the CSA relies heavily on it's own opinion. If no evidence exists, then they seem happy making opinions and then basing their decisions on those opinions.

Is the excessive use of opinion over evidence a good case for 'aggraivated bias'?

The major issue with the Inquisitional Model used by the CSA and SSAT, whereby they can gather their own evidence, is the possibility of a perpetual revolving door of decisions, appeals, more decisions, and more appeals.

In my case, which first started with a Case Officer's decision on a Change of Assessment, I objected on the grounds that the CO had inappropiately applied some case law. When the Senior Case Officer of the CSA reviewed the decision she presented an alternative view and affirmed the original decision. Then I appealled to the SSAT who proposed some other case law and affirmed the original decision. Then I went to the FMC who allowed my appeal based on the fact that the final arbitor, the SSAT, erred in law. Everytime, I managed to defeat a decision maker's case, the next decision maker just went out and found new case law to affirm the decision.

And this is the fundamental problem with the process, when an arbitor is allowed to gather evidence and effectively make a submission favouring either party to the decision process. And so all that I have done to date, is to exhaust the possible pool of contarian case law until hopefully the tribunal and I finally agree on some law that do apply.

If you know of a way to stop this ride because I want to get off, then please let me know? How can I get this matter into the FMC? This is obviously too complex for the CSA or Tribunal and all parties have expended a lot of time and resources on this matter.

Thanks for your learned advice,

Paul

A person who can't pay gets another person who can't pay to guarantee that he can pay. Like a person with two wooden legs getting another person with two wooden legs to guarantee that he has got two natural legs. It don't make either of them able to do a walking-match. Charles Dickens
PaulG,
        the problem I have in replying to most of the questions you ask, is that I actually lack experience of being party to the processes. However I would suggest that SSAT cannot rely upon the same reasoning where they "erred at law". That is to your advantage and they should take into consideration the findings of the magistrate. I'd disagree that the Tribunal is is limited to case law, the legislation allows (wrongly in my belief) multiple methods of adjusting the CS (the guide only suggest a few), the legislation fails to specify (I believe purposefully to allow red tape to win) what determinations should be made under the many different circumstances. Section 98S is the relevant section it's here :-
The Child Support Assessment Act 1989 said
98S  Determinations that may be made under Part
   (1)   The determinations the Registrar may make under this Part are as follows:
   (a)   a determination varying the annual rate of child support payable by a parent;
   (b)   a determination varying a parents or non parent carers cost percentage for a child;
   ©   a determination varying a parents child support income;
   (d)   a determination varying the parents combined child support income;
   (e)   a determination that:
   (i)   the column in the Costs of the Children Table that covers a parents child support income or combined child support income that is, or is determined to be, greater than 2.5 times the annualised MTAWE figure for the relevant September quarter, is the column headed 2 to 2.5; and
   (ii)   the column is to apply as if the second dollar amount in the heading to that column did not apply;
   (f)   a determination varying a parents child support percentage;
   (g)   a determination varying a parents adjusted taxable income;
   (h)   a determination varying a parents relevant dependent child amount or multi case allowance;
   (i)   a determination varying a parents self support amount;
   (j)   a determination varying the costs of the children.
Note:   There are limitations on the Registrar making a determination that varies an annual rate of child support payable in respect of a child support case below the minimum annual rate (see section 98SA).
   (2)   In proceedings under Division 2, the determinations under subsection (1) that the Registrar may make are not limited by the terms of the application.
   (3)   A determination under this Division may make different provision in relation to different child support periods and in relation to different parts of a child support period.
   (3B)   The Registrar may only make a determination under this Part in respect of a day in a child support period, being a day that is more than 18 months earlier than:
   (a)   the day on which the application for the determination is made under section 98B; or
   (b)   the day on which the Registrar notifies the relevant parties under subsection 98M(1);
if a court has granted leave under section 112 for the determination to be made.
   (3C)   If a court has granted leave under section 112, the Registrar may only make a determination under this Part in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
   (4)   The Registrar must give, in writing, the reasons for making the determination (including the reasons for which the Registrar is satisfied as required by paragraph 117(1)(b)).
   (5)   A contravention of subsection (4) in relation to a determination does not affect the validity of the determination.


I'm making an assumption that SSAT only have the powers to make a determination according to and as if they are the registrar (I think they basically tell the CSA how to act). In addition to the above they could, and this is what you appear to want, is that they can consider the decision too complex (personally I'd disagree, you obviously have the right for the reason 1 to be considered and it most certainly warrants acceptance of the special circumstances in that the costs are above the 5% tax threshold.

Take note of 98S(4), as above. I'd suggest that you go to SSAT (I'm assuming that it will be another tribunal rather than them simply correcting the error at law) armed with scenarios and outcomes of how they can apply the costs (unfortunately none of the calculators allow manipulation of the intermediate values, although I could assist with doing the calculations).

I can immediately suggest that the following methods would not reflect a just or proper determination :-

98S(b)   a determination varying a parents or non parent carers cost percentage for a child; (cost % is the level of care converted to a % to reflect the costs for that level of care e.g. 14-34% care = 24% Cost%)

I believe that adjusting this would not reflect the reason for the departure and if applied would therefore not be just and proper.

98S(d)   a determination varying the parents combined child support income; (Combined CS income is the addition of the  adjusted taxable income of each parent, less any relevant dependant child amount and less any multi-case allowance)
I believe that adjusting this amount would likely not take into consideration the costs appropriately (in fact I don't think it's appropriate in any situation (although if any of the income amounts are adjusted then by applying the formula it would automatically be adjusted)).

98S(e)   a determination that: (changes the threshold at which income is not taken into consideration)
   (i)   the column in the Costs of the Children Table that covers a parents child support income or combined child support income that is, or is determined to be, greater than 2.5 times the annualised MTAWE figure for the relevant September quarter, is the column headed 2 to 2.5; and
        (ii)   the column is to apply as if the second dollar amount in the heading to that column did not apply;

Again I cannot see how this method could be applied in regard to contact costs (or even if ever as it basically raises the maximum threshold).

98S(f)   a determination varying a parents child support percentage; (Child support Percentage is the parent's income support percentage (i.e. the percentage of the combined child support income of that parent's contribution toward the combined child support income))
I believe that adjusting this would not reflect the reason for the departure and if applied would therefore not be just and proper.

98S(h)   a determination varying a parents relevant dependent child amount or multi case allowance; (self explanatory I hope)
Again not at all relevant, approproate, just or proper.

Therefore I'd suggest that only 98S(a), 98S©, 98S(g) or 98S(j) could be considered appropriate in relation to reason 1.

Using 98S(a) would from what you say reduce the CS to a negative amount, however then in pops 98SA and it would be upped to the minimum rate of CS unless you have 14% or more care. I doubt that SSAT would use that option, whetehr a magistrate or judge would I'm not sure but I guess it would very much depend upon the finances of the parents.

Using 98S© would likely result in a portion and could I think be worked out via the calculators

e.g. say your adjusted taxable income were $100,000 then the contact costs would be $35,000 less the 5% threshold makes an amount of $30,000.  So (assuming there are no relevant dependant or multi-case children) you could input $70,000 as the ATI. The effect this has is dependant upon both incomes, here's an example for a single child under 13 where the other parent is on income support.  Before consideration of the costs the CS would be $12,000 pa, but with the reduction this would drop to $8243 pa. So that's not that much over 10% of the contact costs considered in this case (it would vary according to the incomes though). At $50,000, thus $15,000 applied as a reduction, then without costs the annual CS would be $5243, and $2753 with the costs considered.

Using 98S(g) would be similar but would likely result in a lower reductions if there were relevant dependant or multi-case children. This type can be calculated using the available calculators without a problem.

Using 98S(j) could not be done using the calculators as the costs of children is an intermediate value, so the calculations would have to be done manually. Also, I believe that the results would not fairly or properly reflect contact costs as the costs is one-sided and would result in an increased amount of CS, unless the amount were deducted from the cost of the child/children which in your case would likely result in a low or even negative cost. The costs are worked out by adding the child support incomes of both parents (the combined CS income) and then applying this to the cost of children tables (this is similar to how income tax is calculated, however as you go through the bands, the percentage drops, also it's more complicated as there are separate paths for the various child combinations (i.e.  8 paths; 1,2 & 3 minors, 1,2 & 3 Teens and 2 & 3 mixed).

What you will very likely come across is the "Proper" test. I have personally only ever seen this refer to the potential for FTB clawback (i.e. that it is in the interest of the public to have reduced FTB payments via the 50c reduction in FTB paid for a $1 collected or transferred in CS). I have seen cases where other, far more important, public aspects have not been considered, even though blatantly apparent. For example I have seen it considered "proper" that a driver of dangerous goods should have to work hours that exceed the legislated maximum, that the same driver should not be allowed to purchase specialised equipment to meet safety requirements, the net result being in that example, the involved CSA employees and therefore the CS registrar, deemed it "proper" that the public should be put at an unnecessary risk of danger to their lives. Personally I believe that is grossly improper.
A way of avoiding the C$A's COA process is to restrict the amount of information you provide to them in the initial application so they cannot make a decision on the matter. This will then result in them refusing to accept your objection to their decision. From here you should be able to go straight to the FMC.
PaulG said
This is a great help. When the SSAT makes it's decision, I would assume that the order of precedence of referring documents are: 1) legislation; 2) case law; and 3) regulations and guides like the CSA guide. Is that correct?
There are mentionsthat:" rel="nofollow">http://www.csa.gov.au/guide/4_3_6.htm



When deciding an appeal a court can make orders it thinks appropriate (section 110F), including orders:


setting aside the decision of the SSAT affirming the decision of the SSAT, or directing the case back to the SSAT for rehearing, with or without the hearing of further evidence. Is your matter affected by the evidence being as it was, or, may you introduce evidence.


What is suggested that the Rules of Evidence are not abided by and that the Tribunal can manifest its own evidence. The value of that if so is questionable. "
Although the SSAT is not bound by rules of evidence the more direct and first hand the information is the more reliable it is. The more remote or second hand it is the less weight it will carry."
ERROR: A link was posted here (url) but it appears to be a broken link.
http://www.ssat.gov.au…quentlyaskedquestions.5.8http://www.ssat.gov.au...quentlyaskedquestions.5.8/


The SSAT site refers to Information Exchange, Financial Information, and Statement of Fnancial Circumstances. No specific references as to how evidence is to be determined as admissable (i.e. Evidence Act). The 14 day prior notice of material has conditionality written all over it. The powers of the Presiding Member are ill-defined.31. What evidence should I provide to the SSAT?

It is not appropriate for the SSAT to act as advisor and tell parties exactly what evidence they should provide. Such advice would be inconsistent with its independent decision-making role. However, the following information is provided to assist parties to make a decision about evidence they may provide.

Ask yourself the questions:



What is the case about? What are the real issues? What are the things I need to demonstrate to the Tribunal? What matters has the other party, or the CSA, raised which I want to contest or oppose? For what purpose am I bringing this document or witness? What will it tell the Tribunal?
  • Any "evidence" should relate to the earlier questions. If your case is that something has occurred (whether that is a payment has been made by you; that you have incurred expenses; that someone is employed; that an agreement was reached about schooling; that you have care of the children in a particular period), any "evidence" which helps to show that that is the case may assist the SSATl. This evidence may be in the form of a document, or a witness to give oral evidence.

    Here are examples of the types of evidence produced in some matters:



    medical/dental/orthodontic expenses - letters relating to the nature of the treatment, quotations or receipts for treatment undertaken. school expenses - letters offering a place at the school, receipts for school fees or expenses associated with schooling.
  • Although the SSAT is not bound by rules of evidence the more direct and first hand the information is the more reliable it is. The more remote or second hand it is the less weight it will carry.


    If a document is critical to your case it may be preferable for you to provide a copy to the SSAT prior to the hearing and bring the original document, especially if there is any issue about the genuineness of the document. Where there is no issue about the genuineness a copy of the document should suffice.
  • You should ensure that the material you bring is relevant to the issues raised in the application. It is unhelpful to have abusive correspondence between parties unless it is produced to show something relevant. It needs to have some other purpose than showing the other person in a bad light.
The order that evidence is introduced generally is related to the strategy applied. Its prioritisation is generally to get the most important facts up first before the interest of the Presding Member wanes.


Moderator Note
Can you please use normal font sizes please

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Fairgo said
A way of avoiding the C$A's COA process is to restrict the amount of information you provide to them in the initial application so they cannot make a decision on the matter. This will then result in them refusing to accept your objection to their decision. From here you should be able to go straight to the FMC.

You cannot go straight to the FMC, they deal with appeals against SSAT decisions.
Thanks Conan and Fairgo for your views,

Fairgo…..Have you applied and had success with the strategy you stated.

Paul

A person who can't pay gets another person who can't pay to guarantee that he can pay. Like a person with two wooden legs getting another person with two wooden legs to guarantee that he has got two natural legs. It don't make either of them able to do a walking-match. Charles Dickens
I believe that there is some confusion with regard to going directly to court without going via SSAT. Here's what the CSA Guide says in relation to going directly to court under the Child Support Assessment Act (note that there is also the Child Support Registration and Collections Act) :-

The CSA Guide - 4.3.2 (extract) said
In some circumstances, the Assessment Act allows parents to apply directly to a court with family law jurisdiction for a range of orders.

The parties to court proceedings under the Assessment Act are the parents and any non-parent carer (where relevant). However, CSA must be served with a copy of any application or appeal (Division 4.2.5, Rule 4.23, Family Law Rules 2004). CSA may intervene in any court proceedings under the Assessment Act (section 145). If CSA intervenes, it is taken to be a party and has all the rights, duties and obligations of a party to the proceedings.

Parents and non-parent carers can make the following court applications under the Assessment Act:

    * If CSA has refused an application for an assessment because of lack of proof of parentage, an application can be made for a declaration that a person should be assessed in respect of the costs of the child because that person is a parent of the child (section 106A);
    * If CSA has accepted an application for an assessment, an application can be made for a declaration that a person should not be assessed in respect of the costs of the child because that person is not a parent of the child (section 107). An application cannot be made under section 107 if the Court has previously made a declaration under section 106A (section 107(1A));
    * An application for a change to a child support assessment because of special circumstances (section 116), where:
          o the parents have other family law matters in the court; or
          o CSA has made a decision that the matters are too complex for a decision to be made by the CSA under Part 6A of the Assessment Act; or
          o the SSAT has made a decision that the matters are too complex for a decision to be made by the SSAT under Part 6A of the Assessment Act;
    * An application for leave for CSA or a court to make a change of assessment decision in relation to an administrative assessment for a period that is more than eighteen months ago (sections 111 and 112).
    * An application for an order for child support to be provided in a form other than periodic amounts (section 123);
    * An application to have a court set aside a child support agreement or a termination agreement (section 136);
    * An application for an urgent maintenance order (section 139);
    * An order that a payee refunds an amount of money paid as child support where no liability to pay child support existed (section 143).

The fact that such proceedings are before a court (or CSA in some instances) does not prevent the child support assessment being made and enforced (section 109), unless a court makes a stay order staying the operation of the assessment. A parent can apply for a stay order under section 111C of the Registration and Collection Act pending:

    * CSAs decision on a change of assessment application; or
    * CSAs decision on an objection; or
    * a decision of the SSAT reviewing CSAs decision; or
    * child support related court proceedings.

Parents can also appeal to a court, under the Registration and Collection Act, if they are dissatisfied with a decision of the SSAT, because they believe the SSAT has made an error of law. See Chapter 4.2.5 The SSAT Review Process
This is where I am coming from. See 1 A i-iii.

s116 Application for order under Division
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under thisDivision in relation to the child in the special circumstances of the case if:
(a) all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii) an objection to the refusal has been lodged;
(iii) the Registrar has disallowed the objection; or
(aa) all of the following apply:
(i) a decision has been made in respect of the
administrative assessment;
(ii) an objection to the decision has been lodged;
(iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab) the SSAT has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
© in the case of a liable parentthe administrative assessment of child support payable by the liable parent for the child is
made under subsection 66(1).
(2) An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.
(3) Subject to section 145 (Registrar may intervene in proceedings) the parties to the application are the liable parent and the carer
entitled to child support.

Also not quite 12 months ago I was in court under s116 (1) (b) (i) (ii) as above, and also in with a Departure Order under s111. I didn't get the departure order however the magistrate openly stated that the review process undertaken by C$A was unfair and thus reduced the liability by 66%.
 
I recently lodged a COA that was refused on grounds of insufficient information. They also refused the objection. From the above I believe I could have then taken it to court however decided to use the SSAT.

Last edit: by Fairgo

Fairgo,
         I suspect that simply not providing information would not pass the "too complex test of 98E and 98R", rather it could fall into the 98F (complexity not the issue rather the issue being no grounds).
Mike - You are correct however I would argue that due to the nature of my application, C$A's COA process would not have resulted in a fair decision.

In general the COA process does not completely follow the legislation and they do not necessarily get all the info they need to make a fair decision. They are making decisions that should only be made by a court.
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