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Can't afford CSA/SSAT assessment - Private School Fees

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In a COA cross appeal my ex asked the SSAT to force me to pay for our 2 kids to go to private schools at a cost of around $40,000 a year. All I wanted from the SSAT was to be assessed to pay in accordance with the CSA formula but what they did was to asse

Hi.

My income in $45,000 and my exs income is around $100,000 according to her tax return and yet I was assessed last year by the CSA (even after appeal) to pay her $9,000 in child support.

I appealed this assessment with the SSAT and in a cross appeal my ex asked the SSAT to force me to pay for our 2 kids to go to private schools at a cost of around $40,000 a year. All I wanted from the SSAT was to be assessed to pay in accordance with the CSA formula but what they did was to assess that pay around $7,000 pa in child support but in addition I should have to pay $20,000 (back pay) a year for school fees with the requirement to pay an additional $20,000 for the 2008 year.

I dont have any assets to sell to pay this amount and obviously my income does not allow me to live and to pay anything like this amount. The ruling was just ridiculous.

I have lodged an appeal with the FMC on matters of law arguing that the SSAT has misinterpreted the law in a number of cases and also they have incorrectly applied precedents from a number of previous cases. I will be self represented as I cant afford a lawyer to represent me. However I cant get a hearing before the middle of March and in the meantime the CSA is chasing me for the money I dont have.

I am interested to know what the CSA has done to others in situations where the paying parent is unable to pay. Can they have you locked up? Even if they garnished my wages there would not be enough to cover the debt so at some point they would have to take me to court for non-payment but even then, what is a court going to do. They cant sell my body organs so how else are they going to get the money out of me when I dont have it?
Steve I believe that if it is arrears that they are chasing, then they have the discretion to accept an agreed upon plan based upon what you could afford to pay. Perhaps mention that if they garnish then you may have a right to PEA (Protected Earnings Amount ($308.05 per week if I recall correctly)). An exception to this if a Notice pursuant to section 72A has been raised. In which case the PEA does not apply.

HAve you used the Calculators on this site? You may find them of assistance.

Thanks Mike.

I am not sure what calculators you are referring to. I have not found any at this stage.

With regard to your point about whether the money they are chasing is arrears, I believe that there is a portion of arrears and a portion of ongoing.

The SSAT assessed I should pay $20,000 per annum on top of the $7,000 normal child support for this years school fees PLUS another $20,000 back pay (arrears) for last years private school fees.

Regards.
Steve, $20,000 p.a.? That seems rather high, especially considering, I believe, that each parent should contribute towards such costs. How much are the school fees in total? However my guess is that you're more clued up in this area than myself.

The calculators (there are two, the simple and advanced, I'd recommend the latter) can be accessed from by clicking on Home at the top and then by clicking on the image link on the right hand side:


Here's a link to the Calculators The FLWG CS Calculators.
The total cost of sending 2 boys to private school is $40,000 pa. I have opposed the boys going to private schools for the last 4 years but the CSA (and now the SSAT) has decided that because we could afford private school education 20 years ago (when I had a successful business) that no matter what my current financial circumstances I should continue to have to pay for private schooling.

I have argued that if my ex wants to pay for private schooling (and she can definitely afford it) then that is her choice. There are few legal precedents that cover this but the CSA seems to rely on a part of the law that says if a parent once decided that the children should go to private school, then no matter what, that obligation continues to exist in perpetuity. However if you look at Mee and Furguson [1986] FLC 91-716 you will see that the full panel of judges decided that this was not the case. CSA (and SSAT) ignores this precedent. I believe they also ignore one of the main reasons for departure from normal assesment in asking whether there is "special needs" of the children in this regard. How can you come to the conclusion that 2 normal boys (no mental or physical impairments) have a special need to go to a private school when the state school system is perfectly adequate for most children?

But getting back to my original question, does anyone have any experience as to what the CSA do in cases where they have assessed a debt (rightly or wrongly) and the payer can't pay? I would love to hear other people's experience in that regard. Am I going to have the sherrifs turn up on my door and seize my personal belongings? Can I be made bankrupt? I am pretty sure that bankruptcy doesn't negate a child support debt anyway.
Steve.
         
I thought I saw something about proportioning costs and here's an extract from the CSA Guide (note it is wise to also check the underlying legislation, I believe that the CSA Guide has not standing in court and that there is a judgement along these lines).

Here's the extract:
CS Guide - 2.6.9 - Reason 3 said
The costs of educating or training a child in accordance with the expectations of the parents are usually readily identifiable and verifiable. If the payee is meeting the additional costs, a decision will usually increase the child support liability by an appropriate proportion of those additional costs. The length of time and stability of the education costs can determine the period of time that any change to the assessment will apply.
From the figures that you've supplied, my belief is that a fair proportion, as it is the proportion used to distribute the costs of the child in the formula in your scenario, is that you should pay 24.65% of the school fee costs. I have come about at this value by using the Advanced Calculator, with two adults (one with an ATI of $45000 the other $100000), two children inputting 2 children (both over 13 although this does not affect the calculated proportioning of the costs of the children), and I've assumed that you have 0 care (worst case scenario as with the children's age). I turned on "Show Calculations" and then found the value called PIP (Parent's Income Percentage) for yourself.

If the annual school fees are $81,136 then I guess that it is an appropriate proportion using this method. I'm unsure what other method would be appropriate.

Sorry I didn't realise that you'd said total fees are $40,000, as such I would suggest that an appropriate proportion would be $9860 p.a. However as has been said below I don't think this is at all appropriate that you are forced to meet such fees when such fees are obviously beyond the means that you have, that is simply not just or proper and most certainly does not reflect what would happen in any other family not having this decision controlled by the CSA's interpretation of the legislation.
It is interesting reading the CSA guide in relation to childrens education, below is an extract from the guide

2.6.9: Reason 3 - high costs of caring for, educating or training the child in the manner expected by the parents

(An Extract)
What is 'just and equitable' when considering the expectations of the parents?

If the reason is established CSA must consider whether it would be just and equitable to the child, the payer, and the payee and otherwise proper to make a particular determination (section 98C(1)(b)(ii)).

CSA will consider the financial circumstances of both parents and decide whether the child's needs, including the additional costs, can be met as part of the costs of the child as assessed under the formula (as can be the case where the assessed costs of the child are already high). Either parent may be able to contribute towards the child's additional expenses taking into account that parent's circumstances.

The importance of maintaining the expectations of both parents and the primary purpose of the Assessment Act in ensuring that children receive a proper level of financial support from both parents has to be balanced against the capacity of either or both parents to meet those expectations. Changes to the financial circumstances of either parent may mean that earlier expectations for a child's care are no longer possible.

It must be stressed that as the title suggests, "THIS IS ONLY A GUIDE"

To me the guide is saying that if in the beginning both parents can afford and agree on the costs for private education CSA will assess and proportion payments accordingly, however if in the future one of the parents financial circumstances change and can no longer afford to contribute to private education, CSA must make an adjustment that is just and equitable to all involved.
That was pretty much my understanding but in my case they have ignored the "whether it would be just and equitable to the … the payer" and have assumed that I have resources that have not been disclosed. Despite the fact that I have tried to prove to them time and again that I just don't have said resources. My problem in this regard is that I once lived in the UK and they seem to think that anyone who has lived OS must have used the opportunity to hide resources in some tax haven or other. I don't know what it is but its a bit like their attitude to self employed and business owners. They have even put in writing in one on my appeals something to the effect that "it is well known that self employed and business owners are likely to have assets that are not disclosed on their financial statements and they understate their income to the tax dept".

With that sort of "accepted" attitude, what chance have you got unless you have been an employee all you life. Even then …

Forgive my being disallusioned but the CSA (and the SSAT) are totally disfunctional organisations with very strong biases.
Steve

It would seem your issues are:

1  Inablity to pay the amount

2  And whether prior agreement existed about the schooling

Since you give no details of the age of the children or related circumstances about the scholing you are only going to receive generic answers.

You have quoted only one Court ruling on the issue of school fees, there are others. If a Court is satisfied there was general agreement or acquiescence between the parents about this style of education then there is a great likelihood of you being liable for all or part of the fees.

Your ability to pay and the amount you are able to pay due to your financial circumstances becomes the second issue.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
One of my boys is starting Year 12 and the other is starting Year 10.

I quoted the ruling in Mee and Ferguson as it was the only one that I found that was relevant. Interestingly the SSAT referred to this precedent in their ruling and then went on and totally ignored it. If you (or anyone else) knows some others I would be grateful to have them as I have appealed the SSAT decision and I will be self representing so the more I know what precedents the courts use the better equipped I will be.

In my appeal to the FMC I have given a lot of evidence in my affidavit that I have not supported the private school fees (and could not afford it) for the last several years. In fact before we separated. But the CSA has ignored this out of hand.
I really hope you find a way around this as I find CSA to be very contradictry when it comes to what the rules are. I am in a similair position but on the oppossite end. although my ex agreed to the school originally, I am still the majority care parent and hae been told many a time that I can not have my assessment changed due to school fees.
So I wish you the very best in this and if I find out how they flip mine the other way I will let you know.

In meantime, have you tried claiming 'hardship' I think it's called a friend of mine earns $25,000 a year, his ex earns $50,000 and the child is attending a $14,000 a year school, CSA tried to get him to pay half plus monthly payments on this child and another and he was able to claim something like hardship where they deemed he could not reasonably pay the school fees, I'm not sure how it works or the right name but it may be worth some research, maybe just ring and ask.
I do hope that is some help.
Faith
Steve said
In my appeal to the FMC I have given a lot of evidence in my affidavit that I have not supported the private school fees (and could not afford it) for the last several years. In fact before we separated. But the CSA has ignored this out of hand.

Steve, does the above indicate that you have at some stage supported the private school situation?

Were the boys going to private school when the relationship was intact?

Your case appears more about the inability to pay rather than rescinding from a commitment to private education.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Yes, I did support the boys going to a private school in the early stages of their education because at that stage (when we all lived togther) we could afford it. At the time I had started a business in the UK where we lived and it was doing well so it did not seem to be an issue. The boys mother went to a private school and was keen for them to do the same. I went along with the idea. However the business has since lost a lot of money and has no reserves and to make matters much worse is now badly affected by the current economic crisis. Despite the reality of my financial position the SSAT decided that I "MUST" be able to find the funds to pay for the pricate school fees. Mind you they didn't say where they thought the money was going to come from. Not only that I should pay half the ongoing private school fees but that I had to back-pay half the fees for 2008 (another $21,000 for me to find)
It should be mentioned that it is the SSAT that came to this conclusion, no the CSA. The CSA did adjust my child support payment amount from the amount that I would have had to pay using the CSA normal calculation method but did not specifically say I should pay the school fees. The amount the CSA adjusted my child support figure to was more of an arbitrary figure but did not cover the school fees.
Steve - Have you picked up Agog's point?

If you have not done so, read sections 116 and 117 of the Child Support (Assessment) Act as you might find some answers to your questions.

Hi all.

Firstly, thank you Faith for the suggestions relating to hardship cases. I did some research on that but I don't think it applies in my case.

Second point following Happydaze's suggestion. I am not entirely sure what you are referring to with regards to Agog's comments. I presume it is the following

"Your case appears more about the inability to pay rather than rescinding from a commitment to private education"

I have tried to find the relevant sections of the Child Support Assessment Act but have not had a lot of luck so far. Is the Act available through this web site? If not, can anyone point me to a link?

Thanks
Steve, the latest Child Support Act, is available from this site. Check out the Topic Regarding the Spring Changes 2008, here's a link to the topic.

Spring Act 2008

The sections are in regard to taking matters to a court.

You should probably also look at section 118-120 as well.
Hi, Thanks for the link and the suggestion to read through the recent cases to do with SSAT appeals. sage advice.

I found about 6 that seemed to be relevant and will digest them in the next few days. You mentioned the summary by FM Halligan but I am not sure what case that related to. You mentioned "LDME & JMA (SSAT Appeal)" but my searches haven't found that as ye. I would really like to read the case.

As an aside I was disturbed to read one of the judgements where the FM sent the case back to the SSAT to be heard again by a different panel rather than make a determination himself. What a cop-out and waste of everyones time and money! Imagine if you were paying a lawyer to represent you at the first SSAT hearing, the FMC appeal and then back at the SSAT again.
Steve said
As an aside I was disturbed to read one of the judgements where the FM sent the case back to the SSAT to be heard again by a different panel rather than make a determination himself. What a cop-out and waste of everyones time and money! Imagine if you were paying a lawyer to represent you at the first SSAT hearing, the FMC appeal and then back at the SSAT again.

You are 'appealing' an SSAT decision. There is no obligation on the Court to make a new judgement. To make a determination both parties should be in Court.


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Steve said
Yes, I did support the boys going to a private school in the early stages of their education because at that stage (when we all lived togther) we could afford it. At the time I had started a business in the UK where we lived and it was doing well so it did not seem to be an issue. The boys mother went to a private school and was keen for them to do the same. I went along with the idea. However the business has since lost a lot of money and has no reserves and to make matters much worse is now badly affected by the current economic crisis. Despite the reality of my financial position the SSAT decided that I "MUST" be able to find the funds to pay for the pricate school fees. Mind you they didn't say where they thought the money was going to come from. Not only that I should pay half the ongoing private school fees but that I had to back-pay half the fees for 2008 (another $21,000 for me to find)
Surely this case is simply about a change of financial circumstances. You cannot expect a commitment agreed some years ago when conditions were good to be carried on when financial circumstances have changed so dramatically. There must be many cases like this today with massive losses in shares market portfolios, frozen funds, property valuations reduced and business sales volumes halved. Am I missing something here? How do you pay when you no longer have the funds? These are genuine circumstances that someone has to get into the real world. You can't pay real money (school fees) with imaginary funds dreamed of from some years ago. If you can't pay then the other parent needs to decide if the private education can continue.

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
 
It seems as though one of my posts has gone missing in action, I do not believe that I deleted it.. Hmmmm interesting.

Steve said
I found about 6 that seemed to be relevant and will digest them in the next few days. You mentioned the summary by FM Halligan but I am not sure what case that related to. You mentioned "LDME & JMA (SSAT Appeal)" but my searches haven't found that as ye. I would really like to read the case.
I have also made a search and could not find that particular judgement, however, the relevant sections are quoted in the other judgements.


Steve said
As an aside I was disturbed to read one of the judgements where the FM sent the case back to the SSAT to be heard again by a different panel rather than make a determination himself. What a cop-out and waste of everyones time and money! Imagine if you were paying a lawyer to represent you at the first SSAT hearing, the FMC appeal and then back at the SSAT again.
In essence what the FM is telling the SSAT is that they got it wrong, here is where you went wrong, do it again correctly this time.

One of the reasons for research is to enable you to be forewarned

In the judgements they also make reference to the following

    In Tasman & Tisdall [2008] FMCAfam126 FM Brown said (at paragraph 44):
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect to the question of law, if it:
(i)    fails to construe properly the legislative provisions applicable;
(ii)    identifies the wrong issues or asks itself the wrong questions;
(iii)    ignores relevant material or relies on irrelevant material;
(iv)    fails to accord procedural fairness to the party before it;
(v)    makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.

I hope I have been of some assistance and sorry for the delay.

There are many members of this site with far greater knowledge than me so if I have quoted something which I shouldn't have please let me know.
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