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Is there evidence of criminal activity

Bring me solid evidence of criminal activity and I will give serious consideration to financing the case against the CSA staffer. An example must be made, and I intend to make it.

I'm inclined to agree with your last sentence Seriously.

Bring me solid evidence of criminal activity and I will give serious consideration to financing the case against the CSA staffer. An example must be made, and I intend to make it.
We are getting of the topic, perhaps the SPCA could cut and paste a new thread.

Sleepy. I had the CSA steal $ 8k of my creditors money from a bank account and $ 2k of that was for a reconciliation done in 2008 for the year 2000 without a court order.
I have all the evidence, do you want to help me make a case against the CSA. I am trying to put my story to the media and so was LADD, (but I don't know where he is up too) so the rest of us hard working Aussies know whats really going on with this Agency.

Wilfred, I hear what you are saying and I agree with you, he should be paying more CS if his taxable income from the business was $ 55k and not his actual business taxable income of $ 55k because that then becomes assessable income from the business and that might be why he is paying the minium CS.

Last edit: by taylor

Apologies for derailing your thread Willfred. Mods/SPCA, a new or private thread would be advantageous if possible.

You have got to be joking:- Another Victim of the CSA goes down

Seriously said
However, you are dealing with the CSA - my experience showed that they will consider a partner's income by simply stating that you are meeting commitments above what you are earning and therefore have access to a financial resource in addition to what your financial statement indicates and proceed to pluck a number out of their fundamental orifice.
Both the COA Officer and Objection Officer did this to me and only the SSAT actually applied the legislation correctly to my case…
Taylor said
SPCA
You are saying that a Senior Case Officer, depending on which side of the bed they get out off in the morning, will make a decision on a parents assessable income by pulling numbers out of the sky, instead of using the correct ATO's accredited formulation for " taxable Income
Secretary Spca said
Clearly you have not been reading a number of posts in these CSA related forums.
Yes I have done a lot of reading, but sometimes dont understand what they are saying.
Secretary Spca said
The issue is that the ATO taxation system is not aligned to the CSA determination of income system.
there is more to the CSA system then that]
Secretary Spca said
What is considered a legitimate tax deduction, by the ATO, for  
an Entity
Secretary Spca said
. business purposes and tax returns is not dealt with in the same way during an assessment of income.
For purposes of assessing CSA income the same rules most certainly do not apply. Where you have people making decisions you can get different decisions,
these people should be able to make a competent decision, that is there job, not a computer.
Secretary Spca said
.. and we see that from the court cases that have been published. Read some of MikeT's post relating to some of the key cases. I don't believe I suggested they get out of the wrong side of their bed although reading Ladd the SSAT officers may have slept somewhere else that night. The Honourable Federal Magistrate Reithmuller has been making a number of judgements around the sorts of things we see here.
We have had many complaints in here and through LFAA about differing treatment of income for self employed.
( Who and what is LFAA )
Secretary Spca said
I had one case a few years ago where the self employed car radio installer had a number of different interpretations, wrong interpretations and even demands served on the wrong legal entity by the CSA. He dealt with numerous (more than 5) officers. Another case spent months working out and arguing which pencils were personal use and which were deductible and legitimate business expenses.

If the CSA were serious about a fair determination for self employed parties they would take our extensive submissions relating to self employed people, along with others (don't just take ours on its own) and create a proper guide and booklet on how to be self employed under a CSA tax system (Which is not the same as the ATO tax system). Most business people who are self employed don't have an issue with the ATO system. Both they and their accountants and financial planners and advisors understand it.
Few if any understand how the CSA determine income when self employed. Many seem to be here with problems in understanding how the CSA SCO's work. Mr D S a CSA Project Manager commenced a project late 2010 early 2011 that dealt with consistency issues and the need for clarity in written decisions. It was an issue then and it is supposed to have improved but there are way too many complaints here.
When there is a check-list published, of what is included, what is not included, how to pay your new partner for work done in the self employed persons business that meets their compliance requirements and a complete list of typical business expenses and how they are treated by the CSA, how depreciations, bad debt write off and how they deal with cash flow deficits, share losses, capital asset write off, self managed super contributions , workers comp when off work and many other items then and only then, will it be seen as a fair and consistent system.
Seriously said
Yes, this is exactly what happens.
In my case:
SCO decided to "arbitrarily" (sic) set an assessment amount in a COA case
She did not state what part of the legislation enables her to simply pluck an assessment amount out of the air.
Sleepy said
I'm inclined to agree with your last sentence Seriously.
Bring me solid evidence of criminal activity and I will give serious consideration to financing the case against the CSA staffer. An example must be made, and I intend to make it.
Sleepy. I had the CSA steal $ 8k of my creditors money from a bank account and $ 2k of that was for a reconciliation done in 2008 for the year 2000 without a court order.
I have all the evidence, do you want to help me make a case against the CSA. I am trying to put my story to the media and so was LADD, (but I don't know where he is up too) so the rest of us hard working Aussies know whats really going on with this Agency.
Wilfred said
No problems - good to see such passion about important issues.
Good luck to you all.

Moderator said
I think this has been quoted correctly. If not we will make changes as required


Taylor

         I'm days away from paying off my spousal maintenance debt (thanks FLA!) but after that I have about 140K per year to play with, less CS. I could think of no more worthy cause than claiming a CSA scalp (preferably plural) and sending every person in the putrid depths of that organisation into a constant state of panic and fear. Exactly the same as they do to us, but they don't have to endure up to 18 years of it.

My immediate concerns are:

1. Which act of law applies to such offences?

2. How does one begin such proceedings?

3. Can CSA staff claim a defence of 'administrative oversight' should this make it to a court room?

4. Does 'intent' need to be proven and if so, how?

5. Given that this has enormous ramifications for the entire organisation (and possibly other gov't departments) how stubbornly is the Commonwealth likely to defend their APS members in order to protect the federal coffers considering that a guilty verdict may open the floodgates for damages and/or compensation?



I am out of my depth with the legalities and seek the input of those more knowledgable. Where I am not lacking is resolve. As far as I'm concerned this needs to happen or they will never get even the most basic functions right. They've had long enough.

I look forward to your responses.
Unfortunately, the CSA are specifically exempt from judicial review of their decisions made under Part 6 of the CS Act

Hence the convoluted Objection/SSAT/FM On a Point Of Law process…
taylor said
… ( Who and what is LFAA )
Lone Fathers Association, contact Barry Williams.

Site Director
seriously said
Unfortunately, the CSA are specifically exempt from judicial review of their decisions made under Part 6 of the CS Act

Hence the convoluted Objection/SSAT/FM On a Point Of Law process…
This sort of response is completely inadequate and does nothing to explain anything.

Which Act are you talking about? There is no "Child Support Act." Are you talking about the Child Support (Assessment ) Act 1989 and Regulations (and its amendments) or are you talking about the Child Support (Registration and Collection ) Act 1988 and amendments? or Child Support Reform (New Formula and other measures ) regulations 2007 or the 20010 amendments. Are you talking about s 72U Division 6 of the Child Support (Registration and Collection ) Act 1988 under enforcement?

It is simply not good enough to say that the CSA are specifically exempt from judicial review etc. without giving us some direction, section or reference of the acts, policies, rules and regulations, and a glimmer of evidence that we can review and consider in the legal sense. It is not appropriate to make sweeping allegations about something in relation to such a serious matter without backing this up with fundamentals.

I note another poster "Whatbus" suggested they have seen the SSAT find in favour of the Payer, where the Payee re-partnered someone more affluent.

The Payer declared he shouldn't have to pay as her new lifstyle was better than his (because of new partner) - the SSAT found in his favour!!

I asked for the case and have not received anything. It is important that we deal with the issues rationally and from an evidence bases. We cannot put up ANY requests for legislative reform nor request any changes to the way the CSA work operationally without proper, compelling and repeatable evidence.

I also note
seriously said
Hence the convoluted Objection/SSAT/FM On a Point Of Law process…
The moderators and legal experts here spend considerable time in responding to and crafting some sensible replies to some of these questions so please do the same by crafting comments that actually reflect some sort of understandable reality. You say convoluted Objection/SSAT/FM on a  point of law. What on earth does that mean? (Or am I just having a bad hair day?)

What objections? What point of law? Which FM? What SSAT hearing?… If you look at what I have posted previously about Federal Magistrate Reithmuller interpreting an objection on a point of law where, errors of fact were raised as a valid point of law by the most experienced FM, you might consider revising your comment.

Please try and wherever possible, provide compelling statements that can be backed with substance and legislative sections for review. Anything less is simply emotive and should be in another forum such as LET OFF STEAM Venting area and Hyde Park Corner.

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
So before this goes any further, can someone please clarify whether or not CSA staff are totally immune from customers/clintele taking legal action against them personally? That would seem to be the pivotal aspect at this point so it would need to be established whether or not this is actually possible before trying to develop a case such as Taylor's.
Sleepy said
So before this goes any further, can someone please clarify whether or not CSA staff are totally immune from customers/clintele taking legal action against them personally? That would seem to be the pivotal aspect at this point so it would need to be established whether or not this is actually possible before trying to develop a case such as Taylor's.
 
It's an interesting discussion. I contemplated doing something similar, but the game's not worth the candle, I'm afraid.

For example, I was threatened with making a false entry in the CS Register to the effect that I had refused to pay CS assessed, because I was not "cooperative" when they rang me in defiance of my "write only" status.
That threat is a clear breach of the Commonwealth Criminal Code: "Use of a carriage service to menace, harass or cause offence" and it carries a significant penalty including imprisonment. If a politician was convicted of such an offence they would be ineligible to sit in Parliament. If the CSA were to have staff convicted of such an offence it would call into serious question their continued use of "telephone first" as a means of contacting clients. In the case I mentioned, the CSA offered me a CDDA payment, which I declined: I wasn't after money, just to stop them behaving like arseholes. If you're interested, I haven't yet pursued that matter, since my CSA problems are effectively over these days.

Because it is a potentially serious problem for the CSA to have such a case made out and proven, they would make it very difficult to proceed. The first problem is to properly identify the staff member responsible, when they deliberately obfuscate the issue by using first names only. Simply getting the CSA to identify the person would be a drawn out affair, possibly taking months and many thousands of dollars, then proving the case to a criminal standard is the next problem. As the conversation was not recorded, the point is moot: she says "I don't recall saying that, Yeronner" and the case is finished. A civil claim for damages would have some hope, but the Acts set out the means for resolving such claims via CDDA and so no court gets to hear them.

Moreover, the staff, as for all public servants, are protected as "servants" acting under the instructions of a "master", in this case the Commonwealth. There would have to be clear evidence that the staff member was acting deliberately outside the rules and policies of the Agency, rather than merely "going too far" in carrying them out due to a lack of clear understanding of what they entail. To use the legal jargon there would have to be a clear "mens rea" in order to prove a claim of criminality. Anything less would simply imply that some form of education was needed for the staff involved.
Secretary SPCA said
seriously said
Unfortunately, the CSA are specifically exempt from judicial review of their decisions made under Part 6 of the CS Act

Hence the convoluted Objection/SSAT/FM on a Point Of Law process…
This sort of response is completely inadequate and does nothing to explain anything.

Which Act are you talking about?
 
My Apologies - I agree, that was just a lazy post.
Here is the correct information:

One of the problems here is that CSA Officers are expressly exempt from Judicial Review when they produce decisions that are not supported by Part 6 of the Child Support (Assessment) Act 1989 and therefore illegal.

 ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 saidSCHEDULE 1
Classes of decisions that are not decisions to which this Act applies
Section 3
(s) determinations made by the  Child Support  Registrar under Part 6A of the  Child Support  (Assessment) Act 1989 ;  http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/sch1.html


Secretary SPCA said
I also note
seriously said
Hence the convoluted Objection/SSAT/FM on a Point Of Law process…
The moderators and legal experts here spend considerable time in responding to and crafting some sensible replies to some of these questions so please do the same by crafting comments that actually reflect some sort of understandable reality. You say convoluted Objection/SSAT/FM on a  point of law. What on earth does that mean? (Or am I just having a bad hair day?)

To elaborate:
In the (apparently quite common) event that a Senior Case Officer (SCO) considering a Change of Assessment application should produce a decision that is not supported in any way by Part 6 of the Child Support (Assessment) Act 1989, and this decision has a serious financial and emotional impact on (usually) the liable parent, said liable parent has no recourse to the law regarding that decision.

The only process available is to submit an objection to the CSA, so that the SCO's decision can be reviewed by an Objections Officer (OO).
Anecdotal evidence would indicate that this review by one of the SCO's peers rarely results in a just and equitable outcome.

Once the OO has given their decision, if the (usually) liable parent is still not satisfied with the outcome, they can appeal against that decision to the Social Security Administrative Tribunal (SSAT).
It has been indicated in other places on this forum that the SSAT is now being staffed by ex SCO & OO staff from the CSA which would almost certainly result in decisions containing the same garbled cruft that the CSA SCO & OO staff produce.

If the SSAT decision is not a just and equitable one, there is then an opportunity to have a Judicial Review, but only a review of the SSAT decision and only on a point of law within that decision and not a consideration of the evidence that has been considered.

Schedule 1 Section 3(s) of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 ensures that SCOs are able to produce whatever decisions they think they can get away with, safe in the knowledge that the worst that can ever happen to them is that their decision will be reviewed by their peers and (rarely) overturned.
They can never be (legally) taken to task for the financial and emotional suffering that their actions can and do cause to their victims.

Craigo said
There would have to be clear evidence that the staff member was acting deliberately outside the rules and policies of the Agency, rather than merely "going too far" in carrying them out due to a lack of clear understanding of what they entail.
The key to avoiding this defense would be to identify an action being undertaken by CSA staff that is in breach of a law that is a law of "strict liability".
This would ensure that as soon as it is proved that the officer did in fact commit the offense, they will be legally responsible for the damage and loss caused by their acts regardless of the reasons or excuses they may be able to give.

Because of the provisions of Schedule 1 Section 3(s) of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977, it would appear that breaching the Child Support (Assessment) Act 1989 is not an offense that can be taken to (say) a Federal Magistrates court.

It would be interesting to have Schedule 1 Section 3(s) of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 tested in the Supreme court to determine whether, given the scope of powers and (proven) potential for abuse it offers to CSA Officers, it is an appropriate provision to have in the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977.

To date, the only way I have seen identified that the CSA are breaching laws other than contained in Child Support (Assessment) Act 1989 is by their "phone first" policy being a form of harassment.

 
Criminal Code Act 1995 Part 10.6 Section 474.17 said

474.17   Using a carriage service to menace, harass or cause offence


             (1)  A person is guilty of an offence if:

                     (a)  the person uses a carriage service; and


                     (b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty:  Imprisonment for 3 years.



For a prosecution for this offense, you would need to prove that reasonable persons would regard the CSA calls as being, in all the circumstances, menacing, harassing or offensive.
Seriously said
The key to avoiding this defense would be to identify an action being undertaken by CSA staff that is in breach of a law that is a law of "strict liability".

I disagree, the real defence that should be afforded to every person, is that there should be strict fact based procedures that do not facilitate any discretion nor act of maladministration by any public servant, this furthermore would facilitate the public being aware, or at least having the information readily available to be aware, of where they stand. Of course this should be enacted by all public servants in all departments/agencies etc.

i.e. deal with the root cause of the problem rather than deal with problem after it has happened (of course taxpayers would save a fortune on the waste of systems that so readily permit abuse if such procedures were put in place) (uhhm another term would to govern the governors).
 3 questions, this is not just about the Child Support Agency Laws inside off there box, there is Accounting, Criminal, you name it, it's not just me out there.

How can or how come, the CSA can "steal money from a bank account" without a court order, and especially while a matter is still under dispute ?

Don't they have to obtain a court order to seize your assets, for sale to pay for Child Support. ?

You can not have 1 and not the other, can you ?
taylor said
How can or how come, the CSA can "steal money from a bank account" without a court order, and especially while a matter is still under dispute ?

Don't they have to obtain a court order to seize your assets, for sale to pay for Child Support. ?

You can not have 1 and not the other, can you ?
 
If a decision is made on a CoA application and then a decision made on the Objection to that decision, then for the purposes of collecting the "debt" generated by those decisions, the matter is no longer under dispute - even if you have begun an appeal to the SSAT.

The CSA Registrar (and Delegates) has the power to issue a notice to any person who holds money for, or on behalf of, a child support debtor under Section 72A of the Child Support (Registration and Collection) Act 1988

http://guide.csa.gov.au/part_5/5_2_9.php

CSA The Guide Section 5.2.9: Collection from third parties said

Explanation

CSA can issue a notice to any person who holds money for, or on behalf of, a child support debtor, or to any person who may hold money for the child support debtor in the future. A notice issued to a person under section 72A requires that person to pay the money to CSA. Notices are commonly used to collect money held in bank accounts and for the proceeds of property settlements (i.e. house sale) which become due to the child support debtor. The maximum notified deduction total is an amount specified in a notice under section 72A(1) that does not exceed the child support debt of the child support debtor to whom the notice relates.

A section 72A notice is similar to a garnishee order obtained from a court by a creditor who has obtained judgment against a debtor. However, CSA does not need the approval of a court or to have obtained judgment prior to issuing a notice under section 72A. Notices under section 72A should not be issued on a speculative or fishing basis.

A section 72A notice will require a third party to pay to CSA, until the debt is satisfied:

 
  • an amount equal to the maximum notified deduction total (if a person holds more than the amount specified in the notice (section 72A(1)(e))
  • the amount of money being held (if the person holds an amount equal to, or less than, the maximum notified deduction total specified in the notice (section 72A(1)(f))
  • specified ongoing payments (if the person becomes liable, from time to time, to make payments to the debtor and the notice specifies an amount until the maximum notified deduction total is satisfied (section 72A(1)(g)). This allows CSA to collect from contractors who make payments to a subcontractor in a manner similar to a garnishee order made by a court.
Which debts can be recovered?CSA can issue a section 72A notice to recover:

 
  • an overdue child support debt, including an amount equivalent to any child support that CSA has already paid to the receiving parent from consolidated revenue because it was expected to have been remitted by the child support debtors employer, but was not in fact deducted from the child support debtors salary; (i.e. a top-up debt);
  • arrears of child support that CSA has assessed for a prior period, but which are payable in the future;
  • a child support debtors late payment penalties;
  • a child support debtors penalty for underestimating adjusted taxable income (estimate penalty);
  • an employers late payment penalties;
  • an employers penalty for failure to make a deduction;
  • court-ordered costs payable to the Commonwealth or CSA in relation to proceedings to collect child support debts or a child support related debt from child support debtors;
  • court-ordered costs or other amounts payable to the Commonwealth or CSA in relation to an offence committed by the child support debtor under the Acts;
  • a parentage overpayment order which CSA has registered for collection as a child support debt.
CSA can also use a section 72A notice to recover any child support due but not yet payable, however, it will only do so in special circumstances.

A section 72A notice cannot be used to recover other types of debts, such as:

 
  • a receiving parents penalty for underestimating adjusted taxable income (estimate penalty);
  • a receiving parents child support overpayment (other than a parentage overpayment order);
  • amounts of child support that may become due and payable in the future;
  • employer penalties for unexplained remittances.
What funds can be attached?A notice under section 72A is only effective where funds can be identified as owed to a child support debtor and there is nothing that prevents the operation of the notice.

Is a notice effective against a joint bank account?

A notice under section 72A cannot be effective against a joint bank account because it is not possible to identify any portion as belonging solely to one owner (DFC of T v Westpac Savings Bank Ltd 87 ATC 4346).

  WOW, hang on a minuet.
  CSA The Guide Section 5.2.9: Collection from third parties said



  Explanation


  What funds can be attached?A notice under section 72A is only effective where funds can be "identified" as owed to a child support debtor, A notice under section 72A cannot be effective against a joint bank account because it is "not possible to identify any portion" as belonging solely to one owner (DFC of T v Westpac Savings Bank Ltd 87 ATC 4346).
Section 72A notice will require a third party to pay to CSA, until the debt is satisfied:


    an amount equal to the maximum notified deduction total ("if a person holds") more than the amount specified in the notice (section 72A(1)(e)) the amount of money being held ("if the person holds an amount")  equal to, or less than, the maximum notified deduction total specified in the notice (section 72A(1)(f)) specified ongoing payments ("if the person becomes liable") , from time to time, to make payments to the debtor and the notice specifies an amount until the maximum notified deduction total is satisfied (section 72A(1)(g)). This allows CSA to collect from " an Entity"  who make payments to a subcontractor in a manner "similar to a garnishee order made by a court." an overdue child support debt, including an amount equivalent to any child support that CSA has already paid to the receiving parent from consolidated revenue because it was expected to have been remitted by the child support debtors "employer", but was not in fact deducted from the child support debtors "salary"; (i.e. a top-up debt);
Where CSA is collecting child support from a payer's salary or wages, it sends the ( "the Entity")  employer a notice that instructs them to:

    make periodic deductions from salary and wages paid to the payer, from a specified day in accordance with the specified weekly deduction rate; and pay CSA the amounts deducted each month by the 7th day of the following month; and give CSA notice of the amounts deducted (section 47(1)).

Do you think that I have a case ?



    
taylor said
Do you think that I have a case ?
If you mean about the money taken to pay for the reconciliation of the 2000 FY done in 2008, I don't think so.

I'm pretty sure that they don't need a court order to reconcile your income estimate against actual income for more than 18 months ago…
Taylor said
Do you think that I have a case ?

I think by joint account it refers to an account that is registered in the names of a number of people, but not an account that is for a registered body/organisation/company that includes a number of people as persons who can "use" the account.

If the CSA took the money from a joint account then you could have. However, if the CSA took the money out of a third parties account under a section 72A notice then you likely wouldn't have a case. It would have been more helpful if you described the case within the question.

I haven't read it. However, this might be a useful read: Manyam, Joel — "The Extensive Powers of the Commissioner of Inland Revenue in Assessing and Collecting Tax Debts" [2001] WkoLawRw 5; (2001) 9 Waikato Law Review 91. It makes mention of the DFC v Westpac case as well as others.

Going off topic. In the introduction there is this "The Privy Council identified three features which earmarked a tax. These were that a tax was compulsory, that this compulsory levy was for public purposes, and that there was legal sanction for the exaction of the impost."

According to these factors then CS is partly a tax. It is compulsory, there is a levy in that 50% of CS paid is returned, in many cases, to the public coffers by the reduction of FTB paid and CS is a legally(sic) sanctioned impost.

Saying that DFC v Westpac is a NSW (Supreme Court) ruling and therefore I'm not sure that it could applied to the Commonwealth. For example, surely, if different states had different contradictory rulings then those rulings could not apply to the Commonwealth as a whole.
MikeT said
….. the real defence that should be afforded to every person, is that there should be strict fact based procedures that do not facilitate any discretion nor act of maladministration by any public servant, this furthermore would facilitate the public being aware, or at least having the information readily available to be aware, of where they stand. …
I have to agree with MikeT that we need to make the rules, policy, legislation and process clear and unambiguous. It has to be able to be administered through a series of questions and answers that makes no doubt as to an outcome - one way or another.

A couple of cases worth a review:


DAVIS v INSOLVENCY and TRUSTEE SERVICE OF AUSTRALIA (NO 1) (2009)

Court citation: [2009] FCA 562
Federal Court of Australia

29 May 2009

Administrative law  Claim for the issue of constitutional writs in order to restrain the Child Support Registrar  Constitutional law  Whether the Child Support Registrar impermissibly exercises the judicial power of the Commonwealth when issuing a notice pursuant to s 72A of the Child Support (Registration and Collection) Act 1988 (Cth)  Whether s 104(2) and 105(2) of that Act are invalid  Constitutional challenges rejected  Practice and procedure  Interlocutory injunctions  Relevant principles  Whether serious question to be tried as to the validity of a notice issued pursuant to s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) by the Child Support Registrar  Whether balance of convenience and justice favour the grant of an interlocutory injunction  Application for leave to amend  Some amendments allowed  Others refused  Interlocutory injunctions refused.

In 2005, the applicant, Mr Davis was required to pay arrears of maintenance and a Family Court costs order (the debt) in respect of one or more of his three children. Mr Davis then commenced proceedings claiming a declaration that enforcement orders of the debt made by a NSW Local Court Magistrate on 8 November 2005 (the Local Court orders) are invalid and of no effect. Finally he sought a declaration that a notice that directed payment of money in the estate of the applicants father bequeathed to the applicant was issued to the Estates solicitors (the fourth respondents) ultra vires

The Notice of Motion sought the following relief: (1) An injunction until further order of the court restraining the Registrar from taking any further steps to enforce recovery of monies from the Estate of Dr Davis pursuant to s 72A of the Collection Act, (2) Leave to amend further his application, and (3) A declaration that the notice is invalid. The proposed amendment was as follows:

    9A. Declaration that the Second Respondent or the person purporting to be his delegate exceeded his or her jurisdiction or acted ultra vires his or her powers in deciding to issue and in issuing a Notice upon the Fourth Respondents dated 30 March 2009 pursuant to Child Support (Registration and Collection) Act 1988 section 72A.

    9B. Further or alternatively to paragraph 9A, declaration that Child Support (Registration and Collection) Act 1988 section 72A is invalid in that in the circumstances of the case it confers judicial power upon the Second Respondent who is not a member of a Court referred to in Constitution Chapter III and is not part of the organisation of a Court referred to in Constitution Chapter III through which the powers and jurisdiction are exercised in matters of federal jurisdiction.

    9C. Declaration that sections 104(2) and 105(2) of Child Support (Registration and Collection) Act 1988, and such other provisions as may be relied on herein by the Second Respondent, are invalid to the extent that or to the effect that the said provisions confer federal functions on a State Court, and/or affect the structure and organisation of the Court, and/or confer powers and jurisdiction on a member of the Court and not upon the Court.

Held: notice of motion dismissed.

and

JOHNSON, SA v JOHNSON, LA (1999) FLC
Full Court of the Family Court of Australia at Melbourne

Judgement delivered 23 December 1998

Child support  Child Support (Assessment) Act 1989  Part 7 Division 5  Application by husband for reduction of existing periodic assessment to nil  Application by wife for lump sum payment  Increase by trial Judge of child support payable by husband in course of ordering lump sum payment  No application by wife for such departure  No opportunity for parties to make submissions in relation to orders eventually made by trial Judge  No regard by trial Judge to provisions of ss 124, 125 and 128 of Child Support (Assessment) Act  Adequacy of trial Judge's reasons  On re-exercise of discretion no ground for departure from existing assessment made out.

Child support  Child Support (Assessment) Act 1989  meaning of ``administrative assessment''  ss 5, 115, 117 of Child Support (Assessment) Act  Jurisdiction pursuant to s 115© of Child Support (Assessment) Act  Regard which may be had to the reasons of a reviewing officer for altering an administrative assessment pursuant to Part 6A of Child Support (Assessment) Act  Onus on applicant to satisfy requirements of s 117  Where requirements of s 117 satisfied the discretion of the court does not permit increase of the amount of child support payable where the only application before it is for a decrease of amount payable.

Child Support (Assessment) Act 1989, sec 5; 115; 117; 124; 125; 128.

    
This was an application by the husband for leave to appeal and an appeal by him against orders made by Mushin J on 24 March 1998, which ordered essentially that there be a departure from the existing administrative assessment of child support payable by the husband for the children of the marriage, and that such child support be capitalised in a lump sum and paid out of a fund of moneys previously acquired by the husband but subsequently held pursuant to a court order.

The husband and wife separated in May 1994 after a marriage of about 12 years. The two children of the marriage were born in May 1984 and July 1987 respectively. They have lived with the wife since separation.

On 5 September 1996, following an application by the husband, a child support Review Officer determined that the rate of child support payable by the husband in respect of 1994/5 child support year be varied to nil; the rate payable in respect of the 1995/6 child support year be varied to $150 per month; and in respect of the 1996/7 child support year the

[95262]
husband's child support income be decreased to $30,000 (producing a child support rate of approximately $478 per month).

On 27 March 1997 the husband filed an application in the Family Court of Australia seeking an order that the child support payable by him be assessed in accordance with the formula contained in the Child Support (Assessment) Act 1989 (rather than in accordance with the Review Officer's decision) for the 1995/6 and 1996/7 years as well as for all subsequent years, and that the Registrar of Child Support do all things to give effect to such an order, including the withdrawal of any notices given pursuant to s 72A of the Child Support (Registration and Collection) Act 1988. The grounds set out in the husband's application were in essence that special circumstances existed in that the husband did not have the income or financial resources to pay child support beyond that which would be assessed in the ordinary course.

On 21 May 1997 the wife, acting on her own behalf, filed a document in which she asked the court for a ``lump sum payment'' of child support on the basis that the husband intended to move interstate and that he had no intention of paying any further child support moneys. In an affidavit filed on 23 May 1997 the husband acknowledged that the wife's affidavit had been served on his solicitors and that he had read that affidavit.

At the hearing before Mushin J on 28 May 1997, the trial Judge asked the wife what exactly she sought, to which the wife replied that she did not know what she sought in dollar terms, but that a ``lump sum would be best''.

The trial Judge then asked Counsel for the husband why he should not order a lump sum payment by the husband of $10,000 or $15,000. Counsel for the husband responded with reasons relating to the husband's age, poor health and his need for his capital.

Counsel for the husband drew his Honour's attention to the fact that the Child Support Agency had issued notices under s 72A of the Child Support (Collection and Registration) Act, which would have prevented the husband receiving the proceeds of the then forthcoming sale of his properties. The trial Judge accordingly requested the Agency to withdraw the s 72A notices, but also made an order restraining the husband from disposing of $20,000 of the proceeds of sale of his properties.

On 8 December 1997 further evidence from the wife was adduced which was directed to the fact that following the hearing before Mushin J on 28 May 1997, the husband had acquired a property for an alleged sum of $165,000 which was approximately $100,000 more than the husband had informed the court that he would have available to purchase any further property.

On 19 March 1998 further evidence was adduced from the husband which related to his declining financial position, health problems and limited income expectations, and a claim that he needed the preserved lump sum of $20,000 to re-establish himself and put him in a position to pay child support in the future.

In his judgement the trial Judge stated that the wife ``effectively sought an order for a departure from the administrative assessment of child support and a lump sum in lieu of periodic payments'', although his Honour acknowledged she was unable to specify particulars of that claim.

His Honour stated that the husband's ground for departure from the current child support assessment was pursuant to s 117(2)©(i) of the Act (``the special circumstances of the case''), and was on the basis of his financial circumstances.

The trial Judge found that the husband received a total of $316 per week by way of income and benefits, that he had expenses of about $361 per week and that his net asset position, following the disposal of certain property developments, was in the vicinity of $127,000. His Honour concluded that there was a ground for departure within the meaning of s 117(2)©(i) of the Act.

[95263]

His Honour then considered whether it was just and equitable pursuant to s 117(4) of the Act to make the departure order, concluding that the balance of hardships was against the wife, by virtue of the fact that she could not expect much by way of child support from the husband in the future, and that if the husband's application was acceded to, there would be enormous hardship caused to the wife and children. His Honour concluded that the husband's duty to maintain the children, his source of income and the availability of the sum of $20,000, made it just and equitable and otherwise proper that the wife's order for a departure from the administrative assessment be made.

His Honour accordingly ordered that:

     pursuant to Part 7, Division 4 of the Child Support (Assessment) Act 1989 there be a departure from the existing administrative assessment of child support for the children of the marriage, for the years 1995/96 and 1996/97, with the husband to pay child support for each child of $50 per week during that period;

     pursuant to Part 7, Division 5 of the said Act such child support be capitalised in the sum of $5,000 for each child; and

     such capitalised sum of $10,000 be paid to the wife out of a fund of $20,000 held pursuant to the court order of 28 May 1997.

His Honour also ordered that in respect of the child support years commencing 1 July 1998 and following, child support be ``in accordance with the provisions of the said Act.''

The husband appealed on the basis that the trial Judge had erred in awarding the wife the lump sum of $10,000 for the reason that if the husband had been permitted to receive the whole of the preserved sum of $20,000, he would be able to discharge a large part of his existing liabilities on which he was making significant interest payments and then use the money thus saved on interest payments, to pay child support.

Held: per curiam granting leave to appeal and allowing the appeal.

Executive Secretary - Shared Parenting Council of Australia
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Enforcement of child support debts due to the Commonwealth

Enforcement of child support debts due to the Commonwealth

Assessed child support may not be paid voluntarily, or by the employer of a liable parent. Therefore the Child Support (Registration and Collection) Act 1988 gives a number of enforcement weapons to the CSA to collect ``debts due to the Commonwealth'' (s 64).

These enforcement weapons include:

     s 60  it is an offence for an employer not to keep adequate records of deductions to pay child support

     s 61  an officer authorised by the Registrar can enter an employer's premises to inspect and copy documents

     s 67  late payment of child support obligations incurs a penalty

     s 72  the Registrar can seize income tax refunds owing to a defaulting payer

     s 72A  the Registrar can collect funds held by a third person and owing to the payer (eg bank accounts; deposits held by solicitors or real estate agents)

     s 72AA  the Registrar can collect funds from social security entitlements of payers at a prescribed rate (currently $260 per annum)

     s 72AC  the Registrar can collect funds from Veteran's Pension entitlements of payers

     s 72B  the Registrar can collect funds accruing in Australia for payment to a defaulting payer who has left Australia

     s 72C  this section is an important analogy to s 85 of the Family Law Act and is aimed at defeating dispositions of property which have the effect of reducing the disponor's ability to pay child support.

In part, s 72C provides:

    ``(1) The court may, of its own volition or on application by the Registrar:

        (a) set aside an instrument or disposition that has been made; or

        (b) restrain the making of an instrument or disposition that is proposed to be made;
    by or on behalf of, or by direction or in the interest of, a payer of an enforceable maintenance liability.

    (2) If the court is satisfied that the instrument or disposition has been made or is proposed to be made (as the case may be) to reduce or defeat the payer's ability:

        (a) to pay child support; or

        (b) if there is an enforceable maintenance liability in respect of the payer:

            (i) to pay any child support debt under the enforceable maintenance liability; or

            (ii) to meet the enforceable maintenance liability;

    the court may set aside the instrument or disposition or restrain the making of the proposed instrument or disposition as the case requires.

    (3) The court may order:

        (a) that any money or any real or personal property dealt with by any such instrument or disposition may be taken in execution, or charged with the payment, of such amounts for costs or child support as the court directs; or

        (b) that the proceeds of a sale must be paid into court to abide by its order.

    (4) The court must have regard to the interests of a bona fide purchaser or other interested person and must make any order it considers proper for the protection of those persons.''

In Cordaiy v Child Support Agency (2004) FLC 98-025 a self-represented litigant unsuccessfully brought contempt proceedings against the Child Support Agency (CSA). The applicant father (the father) had successfully sought a stay order against the CSA to prevent them from collecting child support arrears. The CSA had contacted the father by phone and asked him to increase his child support payments to repay the arrears and twice applied his income tax return against the arrears. The husband had refused the request to make additional payments and the CSA had reversed its decision to use the tax refund to repay the arrears after the error was brought to their attention. The Federal Magistrates Court dimissed the father's application as s 112AP of the Family Law Act 1975 (Cth), which deals with contempt of court, was designed for flagrant challenges to the authority of the court including threats of violence on court staff, disruption of proceedings, or the use of outrageous language. Scarlett FM, did however suggest that the CSA's contravention of the stay order might have been dealt with under s 112AD of the Family Law Act 1975 (Cth), which deals with sanctions for failure to comply with orders.

.01 Law: Child Support (Registration and Collection) Act 1988, s 72C. Family Law Act 1975, s 112AP; s 112AD.

Executive Secretary - Shared Parenting Council of Australia
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What the Federal Magistrates say

This is what a Federal Magistrate would be looking at:

Enforcement of obligations under the Child Support (Registration and Collection) Act

There are a number of other provisions creating obligations that the Registrar of the CSA may seek to enforce in the Federal Magistrates Court.

     Section 16  breach of secrecy provisions.

     Section 28  failure to notify when registrable maintenance liability arises.

     Section 33  failure of payee to notify of court order affecting liability.

     Section 34  failure of payee to notify of events affecting child support.

     Section 46  failure of employer to deduct monies from wages as required.

     Sections 57 and 60  employer offences (prejudicing payers, keeping inadequate records).

     Section 61  failure to allow inspection of employer's documents.

     Section 72A  failure of third party to remit funds held by a third person and owing to the payer (eg bank accounts; deposits held by solicitors or real estate agents) when requested.

     Section 111  failure of payers to notify Registrar.

     Section 119  false or misleading statements made to Registrar.

     Section 120  failure to provide information requested by the Registrar.

I hope the last couple of posts give at least a  direction to the legislative platform that would be utilised…

Executive Secretary - Shared Parenting Council of Australia
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