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Husband made redundant, gets new job at less $$ and CSA assesses him UPWARDS?

Hoping someone can help us.

My husband has a 13 yo to another woman who has two other dependant children to her defacto. The mother works illegally, claims to not be in a defacto relationship. They do live in housing commission but have much more disposable income than we do.

In November last year, my husband was made redundant with no payout. He told CSA who assessed him down to $22 per month thankfully. He has now found a job but it pays less. (Hey at least it IS a job). The CSA have now reassessed him AT HIS OLD PAY RATE rather than his new one.

It will take 60 days for them to review his appeal, meanwhile we have to pay over $1000 a month in CS leaving us with approx $500 a week to cover, car costs (we have one car), petrol, food, bills, clothing, pocket money for the child ($50 per fortnight) health, life and income protection insurance (so his child will be looked after in the event of ill health or his death) and extra costs supporting his child.

The mother and the defacto have new cars, plasma screen, and buy everything they want with all the bells and whistles and have just asked us to pay for the childs school uniforms for the year. We can't even afford to clothe ourselves let alone her.

I have a semi-dependant parent and a disable brother who also rely on our income to a certain degree) BTW We have access every second weekend and spend approx $100-$150 in petrol driving to a regional area to pick the child up and bring them back to Sydney and then repeat the exercise to take them home.

I tend to stay out of the CSA stuff for the most part to avoid the child's mother as she was constantly calling me for money including asking for funds to pay for her other child's soccer team so forgive my ignorant questions;

1. Is this normal for the CSA to do this? Assess at above the parent's income?

2. I am 8 weeks pregnant with our first child. Does the birth of that chid impact the child support assessment at all?

3. Can they ever take my income into account? (Our not insubstantial sydney mortgage is paid for by my income but there is nothing left over.)

4. Would turning them into the CSA regarding the illegal work and relationship status help or make it worse?

5. Can we claim hardship in anyway? We may lose our house because of this.

6. If we win the appeal, do we get back paid for the overpayment or is it bad luck?

It is very frustrating and incredibly stressful for the both of us. We love our child/step child very much and hate that this situation is arising.

Any advice gratefully received.
OtherMother - some answers to your questions.

1) Yes, it is normal for C$A to do what you would at least expect them to do.

2) Yes, make sure when your child is born your husband notifies C$A and his assessment will decrease a little.

3) No they do not usually take your income into consideration.

4) Do report her to Centrelink - they do not like people ripping off the system by claim payments such as parenting payment single when they are really in a relationship. If you tell C$A they will usually not do anything against her because she is the payee.

5) You cannot claim hardship - he will have to pay the assessed amount of child support. Object to the decision as it is reasonable that people who lose their jobs during a world recession may also be re-employed at lower pay rates.

6) If your appeal is successful then yes it should apply from the date of the original C$A assessment.

OtherMother.

In regard to 1) I think what you/he should do, if the new income is likely to be less than 85% of the previous income is contact the CSA and request(demand) that they undertake an assessment based upon an estimate of the income your partner is likely to receive. If they will not then insist that they provide the reasons why they refuse to base the assessment on an estimate. You may wish to refer to the CSA's guide related to income estimates.

This is here CSS Guide - 2.5.1: Estimates of income.

If they do not have a valid reason for refusal or they accept an estimate, they you may wish to make a complaint that they did not consider this aspect and in doing so did not make a fair, just and equitable decision.

Perhaps have a read of the Complaints section of the guide, this is here CSA Guide - 6.9.1: Complaints about the CSA

Perhaps, if you have suffered, consider compensation, here's the section of the Guide that relates to this aspect. CSA Guide - 6.11.1: Compensation

In regard to 2) Yes the CS should reduce to reflect that you partner has a legal duty to maintain the child. It would be classed as a relevant dependent child. You could use the calculator on this site to ascertain the effect. Here's a link to the calculator Advanced CS Calculator

I've run a scenario, based upon your partner (A1) having an income of $40000, paying for 1 child (C1) over 13, his ex (A2) having a low income of $18000 (anything below $18808 for 2009 is basically $0 after the Self Support amount ($18808) is removed). The ex has two dependent (C2 and C3) children under 13. It was run once without the new child to ascertain the current amount the be paid and then run with the new child (C4) to ascertain the future amount. The difference is about $700 p.a.

Here's what I input into the calculator (to show you how to get relevant dependent children).

Year = 2009

Adult1 = A1 with ATI = $40000
Adult2 = A2 with ATI = $18000

Child1 = C1 with 13+ ticked
     A1 = Parent and Nights Care = 100
     A2 = Parent and Nights Care = 265

Child2 = C2 without 13+ ticked
     A1 = Other and Nights Care = 0
     A2 = Parent and Nights Care = 365

Child3 = C3 without 13+ ticked
     A1 = Other and Nights Care = 0
     A2 = Parent and Nights Care = 365

Child4 = C4 without 13+ ticked
     A1 = Parent and Nights Care = 365
     A2 = Other and Nights Care = 0

3) In brief No, however if you had investments/other property/financial resources then by way of a Reason 8 Change of assessment they could take these into account.

4) In addition to reporting them to Centrelink perhaps also consider reporting what you know to the ATO, perhaps you could also initiate a Reason 8 Change of assessment. Have a good read of the guide section 2.6.14 Also look into Reason 1 (section 2.6.7) as you may be able to claim for your travel. Get all the evidence that you can (perhaps even consider a private investigator to get evidence of her working).

5) Unlikely, but check out section Reason 7 Change of assessment (section 2.6.13). However don't pay anything other than CS. Simply say to her that she will have to initiate a change of assessment to get try to get x (perhaps hinting that this could very likely involve intensive investigation of her financial situation).

6) I'll go with Happy Daze's.

Keep us informed.
Further to the reply to 2). You could also look into a Reason 9 Change of assessment. This is for where a duty to maintain another child or person exists.

If you are unable to work due to your responsibilities toward the new child, then although the new child will be covered by being a relevant dependent, your partner, whether or not you are married , (this makes a difference) may be able to claim for a duty to maintain you. The section of the guide that covers this is 2.6.15, here's a link CSA Guide - 2.6.15: Reason 9

My apologies for initially overlooking this.

Last edit: by MikeT

Four responses

Four responses, from several respondents, FYI.

Response One

Sorry for the situation you are in.

I do have a little good news for you!

The birth of your child SHOULD affect what CS your husband pays.

I had a daughter around 18 months ago and I think it brought my partner's CS down from $1,147 per fortnight to $995 per fortnight. Not a huge difference, but at least some.


Response Two

OtherMother said
1. Is this normal for the CSA to do this? Assess at above the parent's income?
The CSA can do whatever they want really. eg. They use something called "the capacity to earn", which gets them out of assessing a person on their actual income, and legally allows them to assess them instead on an income they feel that the person is "capable" of earning.  Therefore they dictate to the person what type of job they should have whilst paying CS!
OtherMother said
2. I am 8 weeks pregnant with our first child. Does the birth of that chid impact the child support assessment at all?
Yes. I'm not in this position, but I know that your own child will affect the amount he has to pay.  There is a CS "calculator" at www.csa.gov.au that will give you an idea of the reduction he should get.
OtherMother said
3. Can they ever take my income into account? (Our not insubstantial Sydney mortgage is paid for by my income but there is nothing left over.)
This varies from case officer to case officer.  In our experience we've had a case officer verbalise that she was going to assess my income and assets, but none of my liabilities, in my husband's case.  She felt that everything I owned could be used 100% in his case.  They really are a law unto themselves.

(NB Legally the CSA cannot use a payee's new partner's income and assets in accessing what she will receive and legally the CSA cannot use a payer's new partner's income and assets in accessing what he has to pay the payee.  Study up and learn about the Privacy Act.  Demand to know the name of the Act, the sections(s) and any regulations, etc - in other words, by what legislative authority - the CSA is using to seek and to use your private information that is unrelated to your husband's child and the payee.  Realise that if you do provide the CSA with your information they can and will use it to offset your husband's expenses and will say that because you can support him that he is therefore able to pay more, and they will take more.  They won't take your money, just more of his.  The CSA is a greedy leech/tick sucking the lifeblood out of Australians.)
OtherMother said
4. Would turning them into the CSA regarding the illegal work and relationship status help or make it worse?
No.  The CSA wont give two hoots what you know or say about their "client" (her).  Even if you provide proof they usually choose to ignore it.  Instead, try a far better angle.  There is a "tip off" option available via the Centrelink website.  My husband's ex used it so many times to try to dob me in for varying things (that I was not doing) that it was on my file to ignore any further tip offs done by her.  It is effective though, and they will usually interview the person whom the claims have been made about.
OtherMother said
5. Can we claim hardship in anyway? We may lose our house because of this.
Get used to it. The CSA don't care about him, you, or your own children.  They will do whatever they can to screw you for every last cent.  We've sold our family home (twice) in pay off CSA debts, and my hubby's assessment had just gone up $11,000.00!  You can be down to your  last dollar and they'll take it with a smile.
OtherMother said
6. If we win the appeal, do we get back paid for the overpayment or is it bad luck?
I'm not sure about this.  I doubt that you would get it back-dated, but hey, stranger things have happened… and you might stumble across a case officer that has a heart!
OtherMother said
It is very frustrating and incredibly stressful for the both of us.  We love our child/step child very much and hate that this situation is arising.
We all understand.  It can really make or break a marriage.  Get used to it though. The CSA are relentless, especially when they actually allow the ex to lie and cheat in any way they see fit.

Hope this helps clear a few things up…

Response Three

The CSA are a law unto themselves and it depends who you get as a case officer.

Try to put as much in writing as possible. If you are able to show their inconsistencies (and there are many) you may have a slightly upper hand when lodging an appeal/re-assessment.

Or at least tape your conversations. I understand it is not illegal to record what transpires in your conversations with the CSA.

Second wives/spouses/families are almost second classs citizens.

The capacity to earn scenario can totally break the family bank.

Good luck and don't lay down and get beaten up by this Government Agency.


Response Four

OtherMother said
In November last year, my husband was made redundant with no payout. He told CSA who assessed him down to $22 per month thankfully. He has now found a job but it pays less. (Hey at least it IS a job). The CSA have now reassessed him AT HIS OLD PAY RATE rather than his new one.
The child support legislation allows YOU to make an election and if you do this via the printed (aka in writing) EST form you are in control for fifteen (15) months.

However, if you contact the CSA by telephone and inform them verbally, then the CSA will term it an 'estimate'. And as you see they quickly come back and zap you … and you have no recourse to a court.
Guest said
The CSA can do whatever they want really. eg. They use something called "the capacity to earn", which gets them out of assessing a person on their actual income, and legally allows them to assess them instead on an income they feel that the person is "capable" of earning.  Therefore they dictate to the person what type of job they should have whilst paying CS!
The CSA cannot do whatever they want they are bound by the both the child support legislation and the Australian Public Service legislation and other legislation. If anyone considers that they are in breach of any legislation then raise the issue here.  The over zealous use of of Capacity to Earn, was one of the major issues when the discussion were taking place in regard to the changes to the legislation and as such the legislation has changed. It is much harder to apply a capacity to earn (part of a reson 8 change of assessment). Here's what the CSA guide says now:
CSA Guide - 2.6.14 said
When can CSA take into account a parents earning capacity?

From 1 July 2006, CSA can only determine that a parents earning capacity is greater than is reflected in his or her income used in the child support formula if it is satisfied about all of the following three matters:

1. The parent is either:

    * not working despite ample opportunity to do so (section 117(7B)(a)(i)); or
    * has reduced his or her weekly hours of work to below full time work (section 117(7B)(a)(ii)); or
    * has changed his or her occupation, industry or working pattern (section 117(7B)(a)(iii));

AND

2. The parents decision about his or her work arrangements is not justified by either:

    * his or her caring responsibilities (section 117(7B)(b)(i)); or
    * his or her state of health (section 117(7B)(b)(ii));

AND

3. The parent has failed to show that the decision about his or her work arrangements was not substantially motivated by the effect this would have on the child support assessment (section 117(7B)©.

CSA must be satisfied that all three compulsory criteria are satisfied before it can change an assessment to take into account a parents earning capacity, rather than his or her actual income.


If the parents circumstances satisfy only one or two of the criteria, CSA cannot make a decision based on the parents earning capacity.

CSA must also be satisfied it would be possible for the parent to increase his or her income by changing his or her work arrangements. That is, work must be available for the parent in his or her area and the parent must have the necessary qualifications and experience to perform that work.
Guest said
This varies from case officer to case officer.  In our experience we've had a case officer verbalise that she was going to assess my income and assets, but none of my liabilities, in my husband's case.  She felt that everything I owned could be used 100% in his case.  They really are a law unto themselves.
If if eventuates in that an assessment is based upon unfair, unjust and inequitable decisions then again raise it as a topic, it will not go unnoticed.

There are those on here that are regularly meeting with or are putting issues forward to relevant persons. I have little doubt that some of the recent changes, such as the removal of the 7.1% change in the level of care restriction, have been driven by issues that have been here. I believe that other changes may well be implemented in the near future.
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