Can child support touch your superanuation after you are fired from your job?
I was recentley sacked from work now my ex is going the capacity to earn. Her new partner actually works for child support Agency.
Her new partner actually works for the Child Support Agency. He has lived in the same house as my ex, in a de-facto relationship, with his two kids plus my ex and my two kids.
In her statements to the CSA there is no mention of him contributing to the house, but she lists his kids with ours when getting child assistance.
I now have no job, no house, had to sell it, no money in the bank, bar $300. All I own is my bike tent and sleeping bag BUT I do have $250,000 in superannuation that I can't touch until I'm 60.
My question is: Will they start paying her this capacity to earn out of that?
If you have been sacked, you need to contact CSA IMMEDIATELY to tell them that your circumstances have changed. They can only change your assessment, once you have notified them.
Yes, you have a capacity to earn, but you should have your income adjusted due to your circumstances. You were sacked, you did not leave your job voluntarily.
2nd partners and contribution to household's do not come into it. The CSA formula is based on mother's earnings and father's earnings, time the children have with either parent and the self-care amount (which is becoming equal after 1 July 2008).
The worst case scenario is that you may have to incur a debt, which you will have to pay back when you get a new job.
Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas.
I don't think Super would come under capacity to earn, rather capacity to pay, however I don't think that it can be counted unless you die, when if you are in debt they would grab their slice, I think.
Perhaps though, all this is just talk, as part of a campaign of vindictiveness, if it is try to not let it get to you.
Have you contacted the CSA and informed them that you are now out of work?
As already stated you must advise CSA immediately. There are a number of provisions around "Capacity to earn" and if you are sacked or retrenched they cannot arbitrarily simply decide you have a new capacity. Good luck to your ex filing a capacity to earn application in your current situation…The only time I have heard of a capacity to earn application being used in a COA just after job termination is where the party has voluntarily left their job to avoid child support payments.
harley622bq saidI was recently sacked from work now my ex is going the capacity to earn,
Your ex partner should have a more sympathetic approach and give encouragement at this most difficult time in your life. I will be surprised if CSA are not sympathetic to your situation and give you a range of options. Please keep us informed. Good luck in finding something.
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunityExecutive Secretary - Shared Parenting Council of Australia
The CSA mistrust every male's action, especially where a drop in CSA payments is the result. If your ex/CSA can prove that your sacking was your fault, they will hit you for some form of capacity to earn.
I wouldn't be at all surprised
I wouldn't be surprised at all. Last time I found myself unemployed as a result of being sacked, the CSA told me I still had to pay $50/pw in child support.
harley622bq saidI will be surprised if CSA are not sympathetic to your situation and give you a range of options.
They told me that the fact I was on the dole was no proof that I had no income, and until I could prove I had no income, it would be $50 per week.
If that's what you call being "sympathetic to my situation", I'll eat my hat.
If you are on Centrelink benefits surely that shows your "income" levels.
If they are able to take that attitude then they could hit people for whatever they want despite the assessment rules.
Child Support and being on Newstart
As the result of other provisions, if you are receiving Newstart, the Child support agency cannot initiate any enforcement action. Unless they are notified and accept a new estimate, a debt would continue to accrue.
And if there may be an issue of somebody trying to access you file when they shouldn't I would definitely be insisting on talking to a team leader or supervisor. Putting it in writing would also bea good idea, with a CC to your local member of Federal Parliament.
I do not believe that capacity to earn can legitimately be used if your partner was laid off. There are 3 conditions that must be satisfied before capacity to earn can be implemented. Here's what the guide says :-
If your partner has not made the decision (e.g. has been laid off) then considering the current climate there is unlikely to be be ample opportunity to obtain employment, your partner has not reduced the working hours and your partner has not changed his occupation or working pattern, they have been changed by someone else. 2 doesn't stand either as there was no decision made by your partner and the same applies for 3.
The CSA Guide- 2.6.14: Reason 8 - a parents income, property, financial resources, or earning capacity saidEarning capacity
If the assessment is affected by a parents reduced income, there may be special circumstances to justify changing the assessment to take into account the parents earning capacity.
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));
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));
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.
Assuming that your partner has been laid off, I would recommend that you contact the CSA again and ask them to explain exactly how the 3 mandatory decisions are being met it would be very interesting if they again confirm capacity to pay to have a transcript of the conversation.
Furthermore the change of assessment has to be fair to both parents and to the community. It cannot be fair to expect a parent to pay more than they can earn. It cannot be fair to the community that a person is made to suffer, perhaps to the extent of taking their life.
Nicki, I believe what should happen is that your partner should be asked to submit an income estimate. This should either have the affect of either not having to pay anything (assuming your partner is up to date with payments) or that perhaps a fixed assessment would be applied (approx $22 per child per week for up to 3 children). However your partner should then be able to make an application that the fixed rate is not used.
Here's what the guide says about applying to not have the fixed assessment applied :-
I think the start of the assessment period may complicate matters as I'm not sure if a fixed assessment can be applied part way through, if not then I would assume that the income estimate should then be used.
The CSA Guide - 2.4.11: Fixed Annual Assessment saidA parent can make an application that the fixed annual rate is not used
If CSA makes an assessment applying section 65A to a parent, the parent can make an application that the fixed annual rate not be used. The parent must show that their income is genuinely low and that it would be unjust and inequitable for them to pay the fixed annual rate (section 65B(2)). See Chapter 2.5.3 for information on making an application and also information on how CSA will make a decision on that application.
For those made redundant who qualify for income support, then instead of the fixed assessment the minimum payment (approx $6.50 per week per case, for up to 3 cases) should apply.
Nicki you may wish to get your partner to read through the sections of the guide mentioned above. Your partner should also note that the guide does not always accurately reflect the legislation and thus it may also pay dividends to also look at the underlying legislation that is pointed to by the guide.
Note for Action by Secretary SPCA
Secretary_SPCA, I believe that a voice may have to be raised if the CSA are found to be trying to invoke Capacity to Earn when people are being made redundant, could you perhaps get an official higher level response to this issue? If this is not the CSA's policy, then perhaps there needs to be a request for an internal memo/bulletin/order, sent to all staff, that any parent made redundant contacting the CSA should be informed about what should happen, which in most situations is that an income estimate should be submitted.
I don't mean to belittle the suffering of the victims of the bushfires, but surely with the number of redundancies/sackings due to the economic climate deserves something at least as much along the lines of the special treatment provided for the victim's of the bushfires. The CSA reacted with great speed to that catastrophe, why not to this one?
We were told that he needed to be registered for newstart so they could verify he was unemployed
Centrelink will not register him for newstart as my income is over the thresh hold
I am attempting to speak to some one higher than the Lady I spoke to at CSA but apparently the person I need to speak to is unavailable until Thursday AM
at this stage the debt is continuing to accrue but they may backdate if they can sort it out.
As far as I can see legislation backs us.
It still behooves us to prove his unemployment and I was still asked why I didn't just pay the support myself