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Child support Case - Wants to return from UK

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Not sure if there s any outstanding debt

CSA assessed the child support obligation for one child in 1995. I paid the child support till 2000 and then moved to UK. I did not tell CSA. I got married again and have two children. One is disabled. I have now lived away from Australia for 10 years or so. Never travelled back. The child will become 18 years in few years time. I have read and read the law and also consulted lawyers. They are surprised as why CSA has not caught hold of me in UK, as it is the reciprocal juridiction.

I intend to return to Australia for good, but not sure if:

  • I have liability and so debt - how would CSA keep assessing the case with nil info about me? Will they still keep adding the liability every year or the case is silent and no action taken?
  • What formula they use for the income earned in pounds as there are differences in living costs in UK; which is far expensive than AU?
Could anyone suggest, what would have been in my CSA record? The law is a persuint based, means if the other party does not persue the case, then CSA cannot do anything.
Boston said
CSA assessed the child support obligation for one child in 1995. I paid the child support till 2000 and then moved to UK. I did not tell CSA. I got married again and have two children. One is disabled. I have now lived away from Australia for 10 years or so. Never travelled back. The child will become 18 years in few years time. I have read and read the law and also consulted lawyers. They are surprised as why CSA has not caught hold of me in UK, as it is the reciprocal juridiction.

I intend to return to Australia for good, but not sure if:

    I have liability and so debt - how would CSA keep assessing the case with nil info about me? Will they still keep adding the liability every year or the case is silent and no action taken?
    What formula they use for the income earned in pounds as there are differences in living costs in UK; which is far expensive than AU?

Could anyone suggest, what would have been in my CSA record? The law is a persuint based, means if the other party does not persue the case, then CSA cannot do anything.

Unless the other parent has elected to end the assessment the case will still be open and you will very likely have a debt (offhand I can't recall any reason why you would not). The debt, which would likely also include fines for non-payment, is a debt to the commonwealth (thus the CSA not the parent will normally pursue the debt). It is quite likely that you will have to pay this debt if you return to Australia and also if the CSA try to locate you in the UK; part of the enforcement action, if you are in Australia, could be to issue a Departure Prohibition Order, thus preventing you from leaving the country. Under the current legislation your liability would be based upon, assuming there is no available income information available to the CSA, 2/3rds of the annualised MTAWE. MTAWE is the Male Total Average Weekly Earnings (for years from 2007-2011 it has been $34,715, $36,504, $37,617, $39,236, $41,187). I'm unsure about the pre-2008 legislation and thus income used for the years up to 2008 (note the legislation was not introduced in one go but from 2006-2008 so that period could be a little complex. With regard to conversion, to quote the CSA's website "An average exchange rate is used to convert the income into Australian dollars. " and I'd assume that the same exchange rate would be used for collecting arrears.  Here's what the regulations say with regard to income conversion:

Child Support (Assessment) Regulations 1989 said
7C   Overseas income  conversion of currency
   (1)   For the purpose of determining, under Subdivision BA of Division 7 of Part 5 of the Act, an amount of income expressed in foreign currency to be a persons overseas income, the Registrar must convert the amount into an equivalent amount in Australian currency.
   (2)   The amount must be worked out in accordance with:
   (a)   the average exchange rate for the foreign currency for the financial year in which the income was derived, being the average of the telegraphic transfer rates published by the Commonwealth Bank of Australia for that currency for that financial year; or
   (b)   if no such rate is available for the foreign currency for that financial year  an exchange rate for the foreign currency that the Registrar considers appropriate.

If you're trying to put the legislation together, not the easiest of tasks, then I'd suggest that the CSA Guide is a good start, as it explains the CSA's interpretation of the legislation and also points to the actual legislation. The actual legislation is available from Child Support Legislation, Note that their are 4 pieces of legislation. The Child Support Assessment Act, The Child Support Registration and Collection Act, The Child Support Assessment Regulations and the Child Support Registration and Collection Regulations.

Last edit: by MikeT

Probably depends on the time Boston left the country.  Was it before the overseas reciprocating jurisdiction legislation came into force, or after.
Yes, neither overseas reciprocating legislation was there, nor DPO. They came around second part of year 2000.

Also, further question:

I worked out the debt to be AUD 100k, from what you guys tell. However, I have no savings and as being UK, it is way expensive and had no pay rise since 2005. I have no assets or and very litlle cash. In such a circumstance, can the debt be reduced. Realistically, from the job, I could pay only 200 a month towards debt; but this will take very long to clear.

I want take a mortgage in AU. How does CSA sees that? Will they reduce the debt, if my circumstances are not there to pay, as I have family to feed and also provide housing in future.

I read the law, which says that in very limited circumstances, Minister of Finance is able to waive the debts. Has there been a case on this?

What do you guys suggest in terms of reducing the debt?

Also, if I ring CSA to find out my situation, am I putting myself at risk of them locating me in UK. What if I keep living in UK and never call them or go to AU, am I safe?
I don't think there is any way you can reduce the debt other than by paying it off, although by paying it off you may be able to get the fines waived. You are far more likely to be caught, if that's the right word, moving to Australia.

In theory living costs should be protected to some extent perhaps expect a few cents to yourself if you're lucky. The CSA shouldn't touch joint bank accounts nor anybody else's although they can issue a section 72(a) notice, (b) for overseas (if I recall correctly) which allows them to take money from third parties who owe you money.

On another aspect I believe that there are restrictions regarding residency and illnesses, so a disabled child could cause you issues. I know that my ex's sister's now husband was from the UK and he had that illness/syndrome that makes you lethargic (sorry I can't recall what it's called) but they had issues and it was some time before he got the go-ahead to be allowed to come here because of the illness.

If you stay in the UK your are likely offered a greater level of protection but they may still locate you, there may be levels of debt in the CSA's procedures that flag when actions become desirable to take. The CSA do, or least have, visited this site so I hate to say it but the more you say the greater the chance that you might be caught. I'm not sure about phone calls. You could phone from a phone that cannot be linked to you perhaps a public phone, but I believe that would cost a great deal. Perhaps from a friend. I doubt that the powers of the CSA here would amount to there being that much that the CSA can do, like tracing a call in the UK or involving that much in the way of UK resources. I think the UK legislation would be the restriction rather than the legislation here.

The safest place would be a non-reciprocal jurisdiction. Some reciprocating countries e.g. Israel, PNG, Samoa will only accept court orders under the Family Law Act and would be the next safest.
Boston said
I worked out the debt to be AUD 100k, from what you guys tell. However, I have no savings and as being UK, it is way expensive and had no pay rise since 2005. I have no assets or and very litlle cash. In such a circumstance, can the debt be reduced. Realistically, from the job, I could pay only 200 a month towards debt; but this will take very long to clear.

I want take a mortgage in AU. How does CSA sees that?
Not so much as how will the CSA see that, but how will the bank see that and give a mortgage on having no income, and no savings?
Boston said
Will they reduce the debt, if my circumstances are not there to pay, as I have family to feed and also provide housing in future.
There is no reason for them to reduce the debt. You will need to negotiate with the other parent to arrange some amount that would enable the other parent to cease the assessment.
Boston said
I read the law, which says that in very limited circumstances, Minister of Finance is able to waive the debts. Has there been a case on this?
What legislation Act / Section were you reading. I don't have any such cases but will take a look and see what I can find.
Boston said
What do you guys suggest in terms of reducing the debt?
Make some payment arrangements with your previous partner.
Boston said
Also, if I ring CSA to find out my situation, am I putting myself at risk of them locating me in UK. What if I keep living in UK and never call them or go to AU, am I safe?
Unless you give them details I doubt it. Its not like an American FBI movie where the Boss snaps his fingers and says "trace the call". You will most certainly get picked up as soon as you start to file Tax returns in Australia and or at the border coming in if there is any alert out for you.


Executive Secretary - Shared Parenting Council of Australia
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Going through the law, there are some points that can make some difference. However, need to see what you guys think.

1.   Waiver of debts  Part 6.11.2  A debt can only be waived by the Minister of Finance and Deregulation or by particular authorised officers of that department.
Requests for a waiver are considered on a case by case basis. A waiver may be appropriate where:
   recovery of the debt would be inequitable; or
   recovery of the debt would cause ongoing financial hardship.
For example, a waiver may be appropriate where:
   there are sound reasons for believing that a persons financial circumstances will not improve to the point where they could repay the debt in full by instalments without suffering genuine and significant financial hardship. A persons assets, future income earning capacity, health and family circumstances are taken into consideration in making a decision; or
   a direct act or omission of a Commonwealth agency, or the impact of a Commonwealth law - whether or not it arose from defective administration - has caused a person to incur an unintended debt to the Commonwealth, the recovery of which would result in an overall loss to the person concerned.
The waiver powers are intended to be used in a limited number of cases to ensure equity in the impact of Government activities.
Legislative references
   Financial Management and Accountability Act 1997, section 34
   Discretionary Compensation and Waiver of Debt Mechanisms, Department of Finance and Deregulation Finance Circular 2009/09, Attachment C

2.   The case registered before the reciprocal agreement has been in place. This came in effect on July 2000 and the liable parent stopped being resident of Australia prior to that. So, in this case, the child support terminating event occurred as per the law at that time. The change in the law came after, so would that change be still applied.

3.   CSA only tries locating for a continuous period of six months, after that they will contact the other party and ask them about the whereabouts, which my-ex knew and have means to find out easily. The debt will become irrecoverable by law.  This is about the past. This will remain in the register. What I have been more concerned about is what happened after. If point 2 applies, then the debt is what I owed till I left.

4.   There is one possibility that ex has ended the assessment. But really having no idea where she is, makes very difficult to know that side of the story. CSA does ask the pother party to continue the assessment or not.

Are you just looking at  "The Guide" or are you actually looking at the legislation and or any common law cases? If so what legislation and what cases?

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
 
There are not many cases (<100 that I could easily locate) relating to waiver of debt , especially the sort of debt you are talking about.

in DANIELS and BELL; DANIELS and ITHACA PTY LTD & ANOR (Family Court citation: [2007] FamCA 152)

51. We consider that this ground misconceives the structure of the Federal Magistrates reasons. Senior counsel for the father argued that the correct construction of the fathers application was as one for discharge or variation pursuant to s 66W of the Family Law Act. Bearing in mind that the fathers application did not refer to any particular sections of any legislation and that the father was not legally represented at the hearing, it fell to the learned Magistrate to endeavour to identify the basis of the application. In our

[81413]
view, it is abundantly clear that Baumann FM did not apply the provisions of section 71 and 71A of the Collection Act when considering the application as an application for discharge or variation pursuant to section 66W. He clearly dealt with the application on two possible bases, firstly construed as an application to discharge or vary arrears, pursuant to section 66W. As seen, he expressed his conclusion about that application in paragraph 22. Only then did he turn to the possible construction of the fathers application as an appeal from a decision of the Child Support Agency in relation to credit for non-agency payments and only then did he address the effect of sections 71 and 71A of the Collection Act. This he seems to have done out of an abundance of caution and in response to the way the father presented his case, because he also made it clear that he did not regard the application as a valid appeal. Senior counsel for the father agreed that it was not.

52. We do not consider that the identification by the Federal Magistrate, at paragraph 26 of his reasons (ie. after he had moved to consider the fathers application construed as an appeal), of both the fathers submissions about his capacity to pay during his bankruptcy, and his complaints about the way the Child Support Agency dealt with his claims for credit for non-agency payments, indicates any confusion of matters pertinent to the application if construed as an appeal, with matters pertinent to the application if construed as an application pursuant to section 66W. It is clear that the father relied upon both submissions in support of his application, however construed, and the Federal Magistrate considered both submissions when addressing the application on each basis (see paragraphs 12, 13 and 17 previously quoted).

53. We find no merit in this ground.


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
 
Very helpful. However, one of my question was on - terminating event and timing of the legislation. This is the loop hole, that many of the lawyers would not know or even CSA registrar themselves.

e.g. an immigration application is considered from the date it is lodged and the law at that date applies. In UK, we have two schemmes for child support, if the application was registered prior to 1999, it uses different formula even that now we have a different scheme.

So there must be some thing around this.

BTW I am looking at the guide for the 'waiver' and legislation for 'reciprocal agreement'. You need to download the copy of year 2000 legislation.
Boston,
           according to section 12(3) of the Assessment Act 8th Sep 1999 (and also 29th May 2000 and 1st July 2000 and 26 March 2001) then you are correct a terminating event should have occurred as per the legislation extract below. However, that does not rule out the other parent making a subsequent application under the legislation that caters for reciprocal jurisdictions, which appears to not be until 1st July 2007. However, I suspect that I might be wrong with that date.

Child Support (Assessment) Act 1989 said
12  Interpretationhappening of child support terminating events

             (1)  A child support terminating event happens in relation to a child if:

                     (a)  the child dies; or

                     (b)  the child ceases to be an eligible child under regulations made under subsection 22(1); or

                     ©  the child turns 18; or

                     (d)  the child is adopted; or

                     (e)  the child becomes a member of a couple; or

                      (f)  none of the following subparagraphs applies any longer in relation to the child:

                              (i)  the child is present in Australia;

                             (ii)  the child is an Australian citizen;

                            (iii)  the child is ordinarily resident in Australia.

Note:          Paragraph (1)© may be affected by section 151C (which deals with continuing administrative assessments and child support agreements beyond a childs 18th birthday in certain situations).

             (2)  A child support terminating event happens in relation to a person who is a carer entitled to child support in relation to a child if:

                     (a)  the person dies; or

                     (b)  the person ceases to be an eligible carer of the child.

             (3)  A child support terminating event happens in relation to a person who is a liable parent in relation to a child if:

                     (a)  the person dies; or

                     (b)  the person ceases to be a resident of Australia.

             (4)  A child support terminating event happens in relation to a child and the persons who are respectively a carer entitled to child support and a liable parent in relation to the child if:

                     (a)  either of the following subparagraphs applies in relation to the child and those persons:

                              (i)  the carer entitled to child support elects by a notice that complies with section 151 (Election by carer entitled to child support to end administrative assessment) that the liability of the liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day;

                             (ii)  the Registrar accepts a child support agreement made in relation to the child between the carer entitled to child support and the liable parent, and the agreement includes provisions under which the liability of the liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day; and

                     (b)  the specified day arrives.
Mike,

There is an ammendent to the act. refer to Child Support (Registration and Collection) (Overseas-Related Maintenance Obligations) Regulations 2000


This what I am saying that this amendment was enforced in July 1, 2000. Thus, what does this leave me with the situation. I was non-resident before that.

What did you mean by ' which appears to not be until 1st July 2007' - interesting point. Please can you provide me link, where you read that. It would make me FIGHT.


Also, law is what is written and it MUST be challanged all the time, that lawyers don't do. I find it funny in the court when they refer to the law handbook. It should be on their tips.

99.99% of the lawyers follow the book, that anyone can do, if that book is read before. What I am after is challange the law and get the client out, even if he/she has commited the crime. That's what I call a good lawyer.

In the view of this, i am bound to find the loop holes and first get me out of it.


Boston said
…What I am after is challange the law and get the client out, even if he/she has commited the crime. That's what I call a good lawyer.
That is your view about a GOOD Lawyer. It is not the view of the Legal Services Commission or the absolute vast majority of the legal fraternity and I will outline a few of the issues that the legal fraternity face in regard to the comments about getting someone off even if they have committed the crime.
Chief Justice of New South Wales, the Hon James Spigelman  AC said
The operation of a market gives absolute priority to the clients interest. A profession gives those interests substantial weight, but it is not an absolute weight. In many circumstances, the lawyers duty to the Court prevails over a clients interest, let alone the clients enthusiasms.
As well as being subject to the general law, solicitors as members of the profession are subject to:

 The Legal Profession Act, 1987 An Act to regulate the admission and practice of barristers and solicitors (the Act).
 The Revised Professional Conduct & Practice Rules made by the Council of the Law Society of New South Wales on 24 August 1995 pursuant to its power under Section 57B of the Legal Profession Act, 1987 (the Rules). In particular rule A 21 and Barristers Rules 21 - 31.
 The Statement of Ethics proclaimed by the Law Society of New South Wales in November 1994.

Counsel must not misrepresent the law to a court or tribunal
Counsel is expected to be experienced in his or her particular legal fields and be aware of the requirements of the applicable rules of Court
Counsel owes a duty to the Court to research relevant case law thoroughly, properly instructing the judge so as to reduce the possibility of judicial error that may result from improper instructions
Counsel must not withhold authorities which may tell against their client but which the law or the standards of the profession require counsel to produce

There is a significant body of Common Law authority in relation to the professional obligations of solicitors.

In Rondel -v- Worsley [1969] 1 AC 191 at 227; [1967] All ER 993 at 998 Lord Reid put the duty to the client and to the Court in perspective:

Every Counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his clients case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of  his profession, and to the public, which may and often does lead to a conflict with his clients wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.

The crucial points in the Statement of Ethics and its acknowledgment of the lawyers role of upholding the rule of law and serving the community in the administration of justice vis–vis the solicitor/client relationship are that lawyers should:
 Serve their clients interests competently.
 Communicate clearly with their clients.
 Keep the affairs of clients confidential, unless otherwise required by the law.
 Maintain and defend the rights and liberty of the individual.
 Avoid any conflict of interest.

Importantly, in terms of the balancing act which must be observed in putting the lawyers duties into context, the Statement of Ethics says:
In fulfilling this role, lawyers are not obliged to serve the clients interests alone, if to do so would conflict with the duty which lawyers owe to the Court and to serving the ends of justice.

The Rules deal in discrete chapters with: relations with clients; practitioners duties to the Court; relations with other practitioners and relations with third parties.

Section 38H of the Act provides that practice as a solicitor is subject to the Rules.

Section 57D(4) provides that while a breach of the Rules may not necessarily involve a breach of the Act it may amount to professional misconduct or unsatisfactory professional conduct.

In Giannerelli v Wraith (1988) 165 CLR 543 The duty to the Court is paramount and must be performed, even if the client gives instructions to the contrary.

Finally as a note:

Delinquent clients
A barrister whose client informs the barrister, during a hearing or after judgment or decision is reserved and while it remains pending, that the client has lied to the court or has procured another person to lie to the court or has falsified or procured another person to falsify in any way a document which has been tendered:
   (a) must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie or falsification;
   (b) must promptly inform the court of the lie or falsification upon the client authorising the barrister to do so; but
   (c ) must not otherwise inform the court of the lie or falsification.

Hopeless cases
Re Cooke (1889) 5 TLR 407
   
   If a client came to a solicitor with a case which was such that the solicitor must know it was absolutely and certainly hopeless, and if the client nevertheless insisted on the solicitor going on with the case, although there could be absolutely no doubt as to the result and the solicitor were to go on with the case in consequence of these mad instructions in order to make costs for himself, he would be betraying his duty to his client and would be guilty of a dishonourable act.
   
   Levick v Deputy Commissioner of Taxation [2000] FCA 674 (23 May 2000)
   Ridehalgh -v- Horsefield [1994] Ch. 205

Guilty Clients r33 Barristers Rules
A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:

(a) may return the brief, if there is enough time for another legal practitioner to take over the case properly before the hearing, and the client does not insist on the barrister continuing to appear for the client;

(b) in cases where the barrister keeps the brief for the client:

  (i) must not falsely suggest that some other person committed the offence charged;
  (ii) must not set up an affirmative case inconsistent with the confession; but
  (iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
  (iv) may argue that for some reason of law the client is not guilty of the offence charged; or
  (v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged..





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 for this info. I was not aware of it.


Please could someone throw the light on this -  The amendment was enforced in July 1, 2000 for reciprocal agreement. I have left Australia before this date. Does this mean that as per law, the terminating event applies to my case. The assessment usually is due in Sept and, when that time came in; I was non-resident as per the previous law. This can be agrued, if CSA has been assessing without a new application from the other party.

Boston.  You answered your own question. If there was a terminating event, the assessment should have terminated.  
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