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Non-agency payments

Scenario: can a non-agency payment made a number of years ago be offset against the outstanding debt?

At a family dinner the other night, the conversation inevitably turned to CSA matters.  One participant commented that they are currently being pursued by CSA for an outstanding debt that they cannot understand because they have had sole care for more of the child's life than not.  When they pulled out their records it became clear the income used for the assessment was clearly incorrect - was able to make some suggestions on how to have that looked at.

Another matter arose during the converation: when the child was in the care of the other party significant cash and clothes etc were transferred on the understanding that was instead of child support being paid.  These were never reported to CSA.  It sems to me that these had the character of non-agency payments.  The question is whether these can be claimed, in some cases, up to five years later?  I have checked s1 of the Registration Act and the CSA Guide and both seem silent on this matter.  Some helpful thoughts needed.
Bigred said
At a family dinner the other night, the conversation inevitably turned to CSA matters. One participant commented that they are currently being pursued by CSA for an outstanding debt that they cannot understand because they havehad sole care for more of the child's life than not. When they pulled out their records it became clear the income used for the assessment wasclearly incorrect - was able to make some suggestions on how to have that looked at.

Another matter arose during the converation:when the child was in the care of the other party significant cash and clothes etcwere transferred on the understanding that was instead of child support being paid. These were never reported to CSA. It sems to me that these had the character of non-agency payments. The question is whether these can be claimed, in some cases,up to five years later?I have checked s1 of the Registration Actand the CSA Guide and both seem silent on this matter. Some helpful thoughts needed.

I think the rules on non agency payments has changed in 2008, there is a whole heap of stuff you cant claim anymore.. The ex has stopped claiming heaps against me and we were told it is the rule changes

thanks

They must find it difficult, those who have taken authority as the truth, rather than truth as the authority

Most non-agency payments have to be agreed to now, by the other party.

I'm not sure about pre-existing arrangements like healthcare and the like. A read of the guide is advised.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
The Guide seems silent on this issue - yet again!
A good read of the CSA Guide is recommended, I do believe most of the information you have asked about is in the guide.  I have not found any part that indicates time frames.  Here is the relavant section of the guide.

5.3.1: Non-agency payments

My understanding after reading the guide is that if the payments etc were made before CSA was involved "enforceable maintenance liability" they can not be credited towards any debt.  If they were made whist there was an "enforceable maintenance liability" CSA may be able to credit the payments.

The only part I have been able to find about payments that may have been paid years ago is as follows.

"CSA can only credit payments if the payment was made when there was an enforceable maintenance liability. This includes payments made for arrears on ended cases."

I believe the last sentence is the relevant part.

The guide goes on to say

"If a payer and payee disagree about whether a cash payment was made, or the amount of the payment, CSA will ask for evidence of the payment. CSA will decide, on the basis of all the evidence, whether or not a payment was made and the amount paid."

This is only my interpretation and I could be wrong

As I said previously a good read of the guide is recommended and remember, it is only a guide.

I hope I have been of some assistance
Bigred said
The Guide seems silent on this issue - yet again!
There have been very significant changes around NAP's since July 1 2008 to how and what NAP's can be claimed and by whom (Levels of care). Have you had a quick look through our FAQ'shere. Also refer to the new version Guide and updated section which was modified late December. The CSA have also updated their FAQ's on this subject.

5.3.1: Non-agency payments

Version 2.3, Last updated 23 December 2008 10:00amInformation in this version of The Guide applies from 1 July 2008
Refer to the previous Scheme Guide for information until 30 June 2008

I have not had any experience at claiming NAP's as far back as 5 years but cases that I have been involved in have required both parties to have agreed they were NAP's. Where they have not agreed I have had quite reasonable success at local courts. (Not Federal Magistrates). We should be able to get an answer on the time, claiming back 5 years ago and the two different rule sets would need to be applied (Pre/Post July 2008). I would assume that where you state "significant cash and clothes etc were transferred on the understanding that was instead of child support being paid." implies some sort of mutual agreement or at least acknowledgment that these were NAP's. Once that amount is determined the forumula for payment of those amounts kicks in because they are not paid in lump sums but as a percentage over time.

Executive Secretary - Shared Parenting Council of Australia
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Thanks all.  It seems there is no strict limitation on when these can be claimed.  It seems the ravages of time may reduce the available evidence in such cases. I will pass this info on and see how it goes.
SPCA said
but cases that I have been involved in have required both parties to have agreed they were NAP's.
Not wanting to hijack this thread I was curious about exactly what this means as it may have some releavance to my circumstances. Leaving the amount of time matter aside for a minute, am I right in assuming that if I was to go back and add up all the payments made directly to my ex since separation say for the last few years (and that it was clearly understood by both parties that these payments had been made to support the children) AND this amount was significantly greater than what I would have been assessed at by the CSA that I could claim that these past payments were advances that could be used against an outstanding debt?

The reason I said "what I would have been assessed at by the CSA" is slightly complicated in my case as I made payments for child support (by agreement - thinking I was doing the right thing) before my ex went to the CSA to get a departure assessment.

One other (related) question is, when would it be reasonable to assume that this process started? Would it be from the date of separation?
Steve

SHort answer is a clear "Yes".  The longer answer hinges on a lot of things including the date of effect of the COA.  I suggest that you assemble your record of payments and one by one send them in writing to CSA clearly stating that they are non-agency paymnets and were paid in lieu of child support.  If you voluntarily paid school fees before the date of effect they should be creditted subject to a special formula immediately as a precribed payment assuming you had paid your other CSA amounts - look up the rules.   
It's been a while since this topic was added to, just wondering if anyone has successfully been able to claim back any voluntary or non agency payments as far back as five years?  Especially the once made prior to a CSA arrangement being put in place?
Thanks
Yes it is possible. You need to clearly separate out the pre 2008 expenses. There are two sets of rules you will be working with. The best thing is to prepare a statement of the expended items in the pre and post legislative periods. Prepare it for lodgement at a local court in the first instant and commence a local court proceeding to have the amounts agreed. You may well find that some agreement is reached informally in discussions along the way. Optionally you can attempt a Change of Assesment. That will strictly adhere to the expenses incurred in the relevant periods pre and post legislative change. After that it is the SSAT. As far as I can read there is no time limit but there is a chnage of what can and can't be claimed along the way related to care levels so you will need to be accurate in relation to the change over period.

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
 
Thanks so much for your response.  So far in my research I had only come up with negative responses and no one could suggest any options.. 

The background if anyone is interested and/or in the same boat…

My very generous partner (the kids dad) has, for the past 5 years, provided more than 50% care, taken 100% financial  responsibility as well as paying his ex's rent for the first three years after their separation.  So after some quick calculations on the CSA assessment calculators and adding up school fees and her rent paid over that time - it works out he has paid over $40,000 more than would have been required according to CSA.  and this is not including sports fees, uniforms, books, medical etc.

Now, his ex has moved making it impossible to maintain the 50/50 care.  My partner agreed to the move and custody changes provided she could ensure the kids were happy and doing well at school etc and that she take more responsibility financially. (The kids are a little older now so it's easier for my partner to maintain a relationship with the kids over phone/skype, this was a factor in allowing her to move the kids.) and so they verbally agreed to pay 50% each for essential expences (in fact I have this in a text on my phone from her and hope it may help to determine there was an agreement).  The alternative was for her to remain in the same town so that the 50:50 care could continue and he'd maintain all expenses.  But she insisted the move would allow her to be "better able to provide for her kids".  Fair enough, she's the mum and kids love her.

NOTE:  There has never been any problems with access to the kids.

We've had the kids 100% of the time for the past 6 months so that they could finish the school year while she moved and found work, a house new schools etc.  We paid all expenses even though CSA deemed her liable to pay support to my partner during this time, we also ferried the kids around so she could see them and allow them to spend time with her in the new town. In the end they were with us for weekes and weeks on end as we couldn't be bothered having to make all the effort for her to see them.

Now 2 days after the kids spent their last night with us.  My partner receives a text from her saying she'll "be going with what CSA assessment amount is - look forward to mediation"..  Funny, this was in response to a text he sent to her saying he transfered $300 to her account towards school uniforms she's purchased…!

Anyway, as you can imagine the CSA estimate is pretty high as we won't have access to the kids as much and my partner earns a decent wage, and after all the money paid over the past years, the fact that he is letting the kids move without out a fight (to save everyone the pain of court) and offereing to pay 50% of kids expenses, it was really dissapointing and worrying that we had no leg to stand on to try and have the terms she agreed too upheld…  This local court option will give us some leaverage to hopefully help the agreement remain in place.. 

It's not about money for us, we're both happy to provide for his kids (I work and can contribute so I do so to help my partner) and we'll probably offer to pay 100% school and medical expenses. Anything more than that is not fair, not after all the generosity affored her in the past - dispite what CSA estimate..

A final mediation appointment is yet to be confirmed (Relationships Australia have taken weeks to make arrangements for this despite numerous phone calls to follow up).

Felt good to write this all down, and if you made it this far, thanks for reading … 
Lyn, I think you had better prepare yourself for a rocky ride from here on in. The tone of her text would seem to indicate to me (and this is only my opinion) that the ex is now going to make life a tad more difficult for you. After all she has warned you that she is going via the CSA estimate, and she has given a heads up about preparing for mediation. I think there may a little battle about to happen.

Lyn, your income is not part of the CSA estimate so you should not feel that you have any obligation to pay anything towards the child support. Your partner has been extremely generous and me thinks that the ex will still want this to continue. I would suggest strongly that your partner pay only the CSA amount and nothing more. CSA is meant to cover things like medical, dental, school (public), uniforms, books etc. The ex's income (if she has one) is included as she is deemed to be partially responsible for the costs in raising the children as well.

I also anticipate that you may not see the children as much as you hope, the ex may play the "i can't afford the petrol (or whatever) card", "you will have to pay all travel costs if you want to see the kids" etc.

You say "fair enough, she is the kids' mum", please remember that your partner "is the kids' dad", he has just as many responsiblities as she does. It is in the best interest of the children to maintain relationships with BOTH parents.

How far away have the children been moved? How frequently does your partner anticipate that he will see the children? Were there arrangements made for contact prior to the move? Was anything put in writing, signed by both parents and hopefully lodged with the court?

Remember a promise is just that a promise, it doesn't mean that things spoken about will necessaily be followed through. My husband's ex promised a whole raft of things before she moved, and everything has fallen by the wayside. I think the phrase that includes head and sand would be an apt description of our "issues". There were no access issues prior to the move in our case either, but that certainly has changed since the move.

Keep us informed.
Thanks for responding andykay.

Oh yes, we are prepared ;-)..  It's a battle every step of the way with her.  

They are only 2.5 hours drive away and we fully expect to do have to do all the driving, but it's for the kids and my partners benefit anyway.  We plan to see them every other weekend and as much of school holidays as possible. 

If he can't get the finance sorted at mediation, he'll just pay directly to the schools or upon receipt and will pay as per the CSA assessment amount. Cash will not be paid as it won't go to the kids..  Hopefully the notion of my partner being able to recover some of the additional NAP's paid previously is enough to coax a reasonable agreement from her.  He'd always pay the school fees anyway, the ex would not bother to pay them.

Nothing was put in writting, other than some text messages which may be enough to say there was at least some discussion. 

Unfortunatley she would not attend a final mediation appointment prior to the kids moving.  So no formal plan was put in place and we regret not demanding stronglly enough that an appointment date be set before now, at least to get something a little more formal in place.  However, the mediators do know my parterns conditions so it has been noted - just not agreed. 

I'm about the make my 4th call in two days to book a mediation appointment on behalf of my partner, that's on top of him leaving numerous messages for the mediator earlier in the week.

Sorry that I have deviated a little from the forum topic to of non agency payments.

Keep you posted.




 

   
Lynn74,
          one suggestion, just in case you haven't. Make a detailed account of the overpayments, date time amount reason etc. This could be very useful should you have to have a battle in court.
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