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"persuaded" to gift overpayment - then hit with a debt of about the same amount!!!

CSA phones asking if we want to gift an overpayment of $1500.  We ask "Do we have to"?  They inform us that it would be very hard to get it back if we refuse.  So we agree to it.  We rang them 3 times trying to understand how the overpayment came about, and why we had not much say in gifting it.  After the third, rather complicated conversation they tell us we are in $1700 debt because of some new vague assessment. What the hell????  Not going to phone them a fourth time, for fear the debt will increase further.  In fact we don't even know how we got so far in advance in the first place!  Is it possible CSA had a system error with the overpayment (and actually gifted over their own money lol) and is now trying to cover themselves by forcing us to pay for it? We are considering bypassing them altogether and making a complaint to the ombudsman.
Ajae,
       I believe that you have been misled by the CSA by them saying that it would be hard to get it back as they simply have to adjust subsequent payments by applying the amount as a credit. As such I believe you have a right to make a complaint as you have not been give the correct information, furthermore the information provided is in contravention of the very object of the child support legislation which is to ensure that children receive the proper financial support from their parents. You could request that the money not be gifted and that it now be credited against subsequent payments. If they deny that request, then you can take the matter to SSAT, perhaps including a statutory declaration that you were advised as you have described and believe that the recording. I believe that the ombudsman may also be interested and may also put pressure on the CSA to correct what is a wrong. You may also have recourse to seek compensation through the compensation process.

I'm not at all sure how they have re-assessed you and come up with a new figure, however they MUST explain this. My suggestion is to object and then, as they will likely not consider your objection, take that matter to SSAT. I suspect that they have wrongly applied the amount that was to be gifted and turned it into an arrears. However most of the CSA is now closed until 4th Januray, although I do believe Melbourne are covering with a skeleton staff to cover emergencies.


As such I suggest that you phone the CSA and have them explain exactly what has happened and that you want the gifted amount applied as credit. I would suggest that you may wish to record the conversation for legal purposes, don't tell them that you are doing this, they have a tendency to hang up (note this I believe is legal at least in NSW). For each point/action ask them to refer to the section(s) of the guide under which they are taken that action (this may assist in understanding what they are doing) and keep on the point until you understand what they are saying.

I believe they would likely be referring to this section of the guide :-


The CSA Guide - 5.3.2: Offsetting debts between payees and payers said
5.3.2: Offsetting debts between payees and payers

Version 2.0, Last updated 17 March 2008 5:00pm
Information in this version of The Guide applies from 1 July 2008
Refer to the previous Scheme Guide for information until 30 June 2008

Context

CSA can offset the child support debts owed by two payers if CSA would be obliged to pay the amounts collected from one to the other.

Legislative references

Sections 17, 17A and 71AA Child Support (Registration and Collection) Act 1988

Explanation

CSA has a discretion to offset debts between two payers who each have a child support debt due to the Commonwealth if those debts arise under:

    * a child support assessment (section 17(2));
    * a liability to pay periodic child maintenance arising from a court order or court-registered maintenance agreement or a collection agency maintenance liability (section 17(1)); or
    * a parentage overpayment order (section 17A) ;
      (but not a spousal maintenance liability or a registrable overseas maintenance liability).

If two child support debts are offset, the payer with the larger debt is required to pay the net amount to CSA. Debts can be offset by deducting the whole amount, or part of an amount, of the smaller debt from the larger debt.

CSA will take into account the circumstances of each individual case when considering whether to offset debts and determining how much to offset. CSA will negotiate with both customers and will aim to reach a mutually acceptable arrangement that takes into account the ongoing needs of the parent with care of the children and the past and present obligations of both parents to pay child support when due. If one of the debts arises from a parentage overpayment order, CSA will consider the terms of that order and in particular any repayment schedule specified in the order. CSA will confirm that the debts are accurate before commencing any negotiation.

What kinds of debts can be offset?

Where the debts are of equal amounts

Where the amounts owed are not equal

Offsetting a debt against an ongoing liability

Effect of offsetting a debt

When a liability is later varied

Notification

What kinds of debts can be offset?

Only child support debts arising from a liability referred to in sections 17 and 17A of the Registration and Collection Act can be offset. Debts due to spousal maintenance, registrable overseas maintenance liabilities and penalties are not included.

In the case of amounts due under a child support assessment; child maintenance order; court registered agreement, or a collection agency liability, CSA can only offset these if they relate to a child of whom both customers are the parents (section 71AA(1)©).

Where the debts are of equal amounts

If the debts are equal CSA may offset one against the other and the Commonwealth is taken to have recovered both of the debts in full (section 71AA(2)). In most cases where the debt is equal this is the desirable outcome.

Where the amounts owed are not equal

If CSA offsets debts for different amounts, then the Commonwealth is taken to have recovered the amount of the smaller debt that is offset and an equal amount of the larger debt (section 71AA(3)). Where the amounts are not equal it is desirable to offset the full amount of the smaller debt against an equal amount of the larger debt.

Offsetting a debt against an ongoing liability

Where CSA offsets unequal debts, the remaining amount of the larger debt is still a debt due to the Commonwealth. If the debtor with the larger debt is entitled to future child support payable by the other parent, CSA may offset the remaining debt against the parent's ongoing child support entitlement as it becomes due and payable each month.

CSA can offset the parent's debt against part or all of that parent's child support entitlement each month. Where the debt is offset in part, the balance of the month's child support liability is due and payable in the normal fashion. CSA officers will seek an offsetting arrangement that will not disadvantage the child(ren) by minimising ongoing child support and which also reflects the size of the debt and a reasonable repayment period

Effect of offsetting a debt

Any amount recovered by way of offset is taken to be paid by the payer to CSA and paid to the payee as provided for under the Registration and Collection Act (section 71AA(4)).

When a liability is later varied

Where CSA offsets a parent's child support debt (as payer) against that parent's entitlement to receive child support from the other parent (as payee) and their entitlement as payee is later reduced, the person will be required to repay the amount of the overpayment to CSA as if they had received the offset amount (section 79(1)).

Where a variation alters the basis of an offset arrangement affecting amounts to be offset in the future, CSA will reconsider those arrangements.

Notification

CSA will confirm any offset arrangements in writing with both parents. However, neither parent has the right to object against CSA's decision to offset, or refuse to offset, a debt.

Here's a link to this section from which you can pretty easily and quickly go to other sections. The CSA Guide - 5.3.2
Thank you for your advice Mike T. Our new discovery of FLWG is a God send, but due to the fact the kids are now teenagers (hubby and I have been battling with issues for over 6 years) we've learned that persuing matters raised by the ex is only detrimental to the kids. And our mental health! So we only address the real issues nowadays.  We have always had a good standing with CSA until recently, but this recent issue has no doubt come about by the ex's COA, reason 8.  You would laugh if you heard her explanation for lodging it, and, being nonsensical to us, we ignored it for a while.  There is a lot more to this case obviously, which includes our payment of airfares  (thousands of dollars) just to access visit 4 times per year.   Never mind.  But thanks again.
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