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CSA Litigation Against Payer

Selling House

I have posted on here numerous times regarding this topic, and it is still ongoing. My partner has pulled his head out the sand, and starting to address the urgency of this matter.

Just wondering if capacity to earn is lawful. My partner does not meet the criteria outlined to determine capacity to earn. The SSAT also decided not to include business expenses when calculating income,  and has set an income that never existed, and thus a child support amount that is based on this income.

My partner and I are in a business partnership, and suspect he has been caught up in the CSA hunting down CS avoiders.

Going to FMC to appeal decision made by SSAT on income, amongst other issues.

At the same time CSA took partner to court to make orders to pay two lumps sums.  One lump sum was paid, and despite efforts to find the funds, and the fact that the income set by SSAT is not agreed upon, the second lump has not been paid. We are in severe financial hardship.

Hence the case is with the Insolvency Trustees.  They have given us three months grace for my partner to appoint an agent to sell the house.

I have had contact AAT and the Ombudsman to no avail. I am now more aware of what they can review, and might try again. I have seen the local MP and have not had a response yet. I am now sending of a letter to the Minister of Finance, to waive my partner's debt to the Commonwealth.

Are there others who have had to sell their house to pay CS debt?  And I need some advice just to see if I am filling out Notice of Appeal form right.  Things are getting pretty stressed!
Justice.

This is an area where I can give little help, as I've not had any experience of doing this. If you haven't already then check out the FMC's website, where they have the forms in various formats, with pretty concise instructions and information. I guess that the orders sought will be something along the lines of:

Apply a taxable income of $nnnnn for the purpose of determining the Child Support Assessment via the formula resulting in an annual Child support amount of $nnnnn.

I guess the grounds will be along the lines of:

The use of unfair, unjust and inequitable accounting methods, which failed to properly consider business expenses.


Here's a link to the FMC's website where the Notice of Appeal form is located, there is also a link to a section on child support matters. FMC Website - Notice of Appeal
Any chance of the payee accepting a lesser amount, eg so many cents in the $, on the basis that the golden goose might be killed if the action proceeds?  Perhaps you could get your solicitor/advisors to make an offer on your behalf in light of your parlous financial situation?  This assumes you have been behaving reasonably in your conduct of this matter.
Thank you Mike T. I have the forms, and have filled them amount to the best of my knowledge. They just need a proof from someone with experience!

There is no chance of the payee accepting a lesser amount. This was made evident before the orders were made…my partner was negotiating on the day of the court case to no avail. She has $$$ in her head, and even told the children the money was on its way.

We have no means of getting legal advice, no funds.

That is why FMC is the only option now.

There is nothing to hide in terms of conduct. Everything is above board business wise, and we have been paying cs on the new assessment from July 1. This case dates back to 2005.

The golden goose is in a perilous state of mind … stress.

See quote below: Mmm. Not to mention the new partner's family.
The Age (Melbourne)

7 March 2008

Parents told to cough up maintenance

By Carol Nader

Mr Sutton said he did not want to see a move to a more punitive system. If a court gave permission to seize a parent's house, usually it would be an investment property rather than the parent's home. It would not be in the child's best interests for their parent to lose their home.
If anyone is caught up by the "eraning capacity" provision, just to let you know I am about to challenge that provision as being repugnant to the Constitution.

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Hi Justice, here is a link to the FMC recent judgements, when you are at the page, scroll down and you will find judgements dealing with appeals against the SSAT, they may give you some guidance as to how to prepare your case. There is at least one judgement relating to earning capacity.

If the FM does find that the SSAT did err in a matter of law the FM can send the matter back to the SSAT to be reheard in front of a different panel. Some people are not aware of this.

http://www.fmc.gov.au/judge/html/new.htm

Here also is a direct link to the CSA Guide in relation to earning capacity.

http://www.csa.gov.au/guidev2/TheGuideMaster.aspx?content=2_6_14#a_parents_earning_capacity

Please be aware that the provisions at the above link are effective from 1 July 2006. A good read of the whole section is advisable.

Also reading the relevant legislation is a must because the CSA Guide is just that, a guide

Hopefully some of the info may help you in your case



Futher to my last……..

When appealing an SSAT decision it is prudent to know what you can appeal against. Below has been quoted by FM's in their own judgements.

In Tasman & Tisdall [2008] FMCAfam126 FM Brown said (at paragraph 44):



An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect to the question of law, if it:


(i) fails to construe properly the legislative provisions applicable;


(ii) identifies the wrong issues or asks itself the wrong questions;


(iii) ignores relevant material or relies on irrelevant material;


(iv) fails to accord procedural fairness to the party before it;


(v) makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.

It is also of benefit to know the principles when dealing with an SSAT appeal. Below has also been quoted in FM's judgements

Principles

1. The principles relating to "appeals" from decisions of the SSAT have been concisely stated in the decision of FM Halligan LDME & JMA (SSAT Appeal) [2007] FMCAfam 712, paras 17 to 33 of the Reasons. on the question of discerning an error of law in the Reasons of the SSAT, FM Halligan said (and I adopt):


It is well settled then that when reviewing an administrative decision for error, a Court should not be 'concerned with looseness in language nor with unhappy phrasing' and, the reasons for the decision under review are not to be construed minutely and finally with a eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic Enterprises Pty Ltd, above, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and see the comments of Kirby J to similar effect at 291).


The SSAT is an administrative tribunal, not a Court of law, and is bound to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s.88, Registration Act, and compare s.141, Social Security (Administration) Act 1999). It is not afforded the luxury of lengthy deliberation on the reasons for its decisions, but must give the parties written notice of its decision on the review and written or oral reasons for that decision within 14 days of making the decision (s.103X, Registration Act). The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.


2. Halligan FM went on to say in relation to the power of Courts concerning appeals of this type:


The Court "must" hear and determine an appeal from the SSAT, and "may" make such order as it thinks appropriate by reason of its decision (s.110F(1), Registration Act). The orders a Court may make on a s.110B appeal include an order affirming or setting aside the decision of the SSAT, or an order remitting the case to be heard and decided again by the SSAT, either with or without the hearing of further evidence, in accordance with the directions of the Court (s.110F(2)).


Three points may be made about the Court's powers in a s.110B appeal.


First, the use of the word "may" clearly signifies that the power is discretionary. The fact an error of law by the SSAT is found does not inevitably lead to the decision being set aside. For example, if it is clear there would be no purpose served by having the case heard again, the Court may, in the exercise of its discretion, decline to remit the matter to be heard and determined again, and affirm the decision under appeal (see Clements v Independent Indigenous Advisory Committee, above, at [41]).


Second, the power to make such order as the Court thinks fit is qualified by the words "by reason of its decision". The "decision" in this context is the decision on the hearing and determination of the appeal (s.110F(1)), the appeal being "on a question of law" (s.110B). Thus, the orders made must flow from a finding in favour of the Applicant on an identified question or questions of law.


Third, the particular power under s.110F(2) to make the orders specified in that subsection does not limit the general power under s.110F(1) to make such order as the Court thinks appropriate by reason of its decision on the appeal.



I hope this information is of some assistance.




Last edit: by OneRingRules

Big Red, thank you, your information is of assistance.

However, I still cannot find a specific case that relates wholly to earning capacity.  There are sections of a case that are relevant.  How do I include these references in the papers?  I am not sure I am even setting them out correctly.

Despite everything, there is no evidence to suggest that my partner meets the criteria for determining earning capacity.  Does the CSA/SSAt just say, well yes, there is a special circumstance, so let's make our own earning capacity?

And even if the court considers that SSAT has made an error of law, it can still use it's discretion as to whether a decision is set aside.  Can anyone give me som advice on how discretion is used under the law?

The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons.  In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.

  The SSAT does not deliver judgements of jurisprudential excellence when delivering it's decisions, so does that mean there are errors of law made?  These are people's and their children's lives here.  Shouldn't being pedantic be in the best interests of them both?  Can somebody please help me interpret this statement, so I can understand the view of the court a bit more.
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Hi Justice, my interpretation of that statement is.

The SSAT make a determination, it is appealed against and found that yes the SSAT did make an error in law however if that error does not affect the original determination the court has the power to disregard that error. In other words, why go through the whole process again for the same outcome, it is a waist of time and money.

In instances like that it is NOT in the best interests of anyone to go through the whole process again just to cross the T or dot the i.
justice - Have you considered seeking a Departure Order?

Regardless you might get some guidance from section 117 of the CS Assessment Act as this outlines the criteria for making such an order and would be relevant to your case.




I have already argued the case in FMC (Sydney) last Wednesday, 25 March. AGS, on the part of the Child Support Registrar has opposed my application for removal of the constitutional issue to the High Court. Several A-Gs have replied to my s78B Notice indicating that they would not be intervening while the matter is in the FMC but will consider doing so in the High Court.

I am almost 100% sure that the matter would succeed in the High Court. My argument is totally distinct from every other argument ever advanced on that issue. I have an impression that the Magistrate hearing the case had understood my reasoning and expect her to allow me, as far as she is concerned, to proceed to the High Court. She reserved her decision.

I would like to help you but am sure that the moderators will not allow you and me to communicate directly. That is a matter that I am going to take up with the moderators. I consider the issue of the "earning capacity" to be an issue of a great public interest and the moderators should act with that fact in their minds rather than pursuing their own agendas. That issue also I will be addressing, first with the moderators and then, if I fail, elsewhere.

cheers

mandamus


Moderator Note
Mandamus, instead of making puerile and inaccurate remarks about the moderators pursuing their own agenda you might have spent your time productively reading and UNDERSTANDING the rules you joined under AND understanding you could both 'whisper' and email the person directly. Or is it easier to whinge rather than do something productive?
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