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Appeal for COA reason 8

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COA reason 8


Case: The mother is a single parent. The child is 5 years old. The mother worked before the child was born. Now she does not work and receives maximum benefit from Centrelink around $25K (single parent benefit and  FBT A and B).

Should the CSA assess her earning capacity?

The husband was self employed but during the last 2 years he had no time to work. He has been SRL for property settlement, COA and child custody. Consequently, he could not earn enough.

The mother has assets in a foreign country, including super account in that country. Assets in foreign country is non-disclosed. She accumulated funds in super account every year.

However, the mother income is $15K (single parent benefit). The father income is $25K.

I need the explanation why her assets in foreign country is not consider as financial resource.

I need the explanation why funds she contributed to her super account is not added back to her income.

Should she get penalty of her perjury?

Should the father appeal this to court?
petit diable said
I need the explanation why her assets in foreign country is not consider as financial resource.
Under a reason 8 the assets should be considered. However it is very likely that the CSA would not bother to investigate as this would likely result in a reduction of the amount transferred or collected, even though to not do so is a contravention of the very object of the CS legislation (that parents meet their proper financial responsibility towards their children). Here's and extract from the guide, which incorrectly takes the position that it is only the paying parent who should be subject of consideration

The CSA guide - 2.6.14: Reason 8 - a parent's income, property, financial resources, or earning capacity (extract) said
Asset rich but income poor

In some cases a parent might have substantial property and assets but a low income used in the child support assessment. CSA may consider the parent's property and assets, as well as any income, in deciding the appropriate rate of child support to be paid (Abela and Abela (1995) FLC 92-568 and Bendeich and Bendeich (1993) FLC 92-355).

CSA will take into account that child support is intended to meet the day-to-day needs of the child, when considering a parent's capacity to contribute to supporting a child.

It is not sufficient for a parent to say that they are unable to pay child support because their assets produce little or no income or will only produce income at some point in the future. CSA will consider whether the parent has the capacity to restructure their financial affairs to produce an income stream from which to contribute to child support. In these cases, CSA may:

    identify the relevant assets, determine ownership of such assets and enquire as to any structures designed to divest assets;
    consider whether the assets are income-producing assets and, if so, when such income will be produced;
    ascertain the value of the assets;
    ascertain the parent's ability to convert the assets, or some of the assets, to cash;
    consider the parent's ability to finance his or her lifestyle; and
    consider the impact of any property settlement on the parent's assets.

CSA does not have to identify any specific source, property or asset from which a parent should meet the obligation to contribute to the support of the child. CSA need only consider the parent's financial resources as a whole, including any capacity to borrow against the assets (Dwyer v McGuire (1993) FLC 92-420).

However, the legislation clearly specifies either parent :

The Child Support Assessment Act. Division 4 Part 7 Section 117(c) said
©   that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
   (i)   because of the income, earning capacity, property and financial resources of the child; or
   (ia)   because of the income, property and financial resources of either parent; or
   (ib)   because of the earning capacity of either parent; or
   (ii)   because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

petit diable said
I need the explanation why funds she contributed to her super account is not added back to her income.

Basically the same response as above. Here's a snippet from the CSA Guide (same section as above)


The CSA guide - 2.6.14: Reason 8 - a parent's income, property, financial resources, or earning capacity (extract) said
However, if the parent has a low current income and is making an inadequate contribution to child support CSA may still consider any superannuation received by the parent in deciding that parent's capacity to contribute to the financial support of the child. CSA will also take into account whether the superannuation has been drawn prior to retirement because of severe financial hardship.

petit diable said
Should she get penalty of her perjury?

Should the father appeal this to court?
Likely yes to both. For the latter the parent should object to the decision, the CSA has not applied the full extent of the legislation by not taking into consideration all the relevant matters. the objection would either result in a complete denial of any wrong-doing or it would offer only a partial adjustment (in the hope that red-tape would deter the parent from having the true intent of the legislation applied). After objection the matter, unless dealing with matters over 18 months would then go to SSAT. If the SSAT decision does  not correct the situation then the matter could then go to court but it has to be on a matter of law. Taking the matter to court (Federal Magistrates Court) is free to apply for.
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