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Reason 8 and reason 9

I just received my COA decision, end of Aug 2009. I had a financial agreement (paying more than double) which ended Aug 09. I did fill out response form, however to be disappointed that nothing apart from my group certificate was used for CSA calculation, however everything was shown to my ex.  

Over and above, she was also awarded half school fees and half tutoring costs and DR's bills, I have 2 nights a fortnight care. Even though she never consults me in any decision regarding the children's welfare, it is her decision always and I have to pay half, even though the law states the decision making process is 50%.

I am are under huge financial strain and living with my parents, however none of this was taken into account. I had to disclose all mortgage details, only to be told that they don't count as that comes under self support amount, why did I have to disclose? I then had to disclose how much my partner had earned last financial year (as she on Maternity leave) to show how much we 'would be missing out on' (as CSA put it), however again not considered and passed onto the ex, why again did we have to disclose? We cross applied under reason 9, supporting my partner as she is 'looking after child of relationship', however SCO said this is not reason enough to establish reason 9 (even though it is used in one of their examples), and told it's not 'special circumstances, even though in form they do not ask for special circumstances to be proven, to establish reason 9.

Under reason 8, all children are now at school and the ex has the ability and capacity to work, and does so through her parents family business, for cash-in-hand and/or kind, however says she doesn't and SCO says that they are unable to find that her earning capacity exceeds her current income, of course below tax free threshold. I am considerably upset with the process and breach of privacy.

Could anyone help with objection process and wording etc…???
ACC

Edited by Moderator to make the post easier to read.

Last edit: by MikeT

OBCH said
Over and above, she was also awarded half school fees and half tutoring costs and DR's bills, I have 2 nights a fortnight care. Even though she never consults me in any decision regarding the children's welfare, it is her decision always and I have to pay half, even though the law states the decision making process is 50%.

The law doesn't say this, rather it mentions joint or shared which leaves the percentage open to interpretation and the CSA will rarely do anything other than interpret the law to best suit the monetray amount that they can pass onto FAHCSIA and then above to make out the CSA are doing such a wonderful job, all this very often contrary to the intent of the legislation to treat parents equally, fairly and justly.

School fees is something that you will likely end up having to pay, although I do believe that a magistrate or judge, sometime this year, did warn a receiving parent who claimed hardship, that a ruling could be made to relieve that hardship by the way of ending the private schooling.

As for Dr's bills, this can only be claimed if there are special circumstances (according to a court ruling, a special circumstance should exist for each and every reason for which a departure is not being made, again the CSA, from the material I have seen, frequently consider that any special circumstance opens the door for any and every departure from the formula), noting that in the case of ACEP74, special needs was not considered special circumstances (paying parent so a special needs child was not considred as special circumstances).

Disclosure is another area where I believe that the CSA are frequently in breach of the privacy act, although saying that if you have claimed hardship, which it appears that you have, then you'd need to provide the sort of details that you have.

Reason 8 capacity to earn has 3 stringent criteria that must all be met, however it would appear that they have been met from what you have said the SCO said, but the SCO hasn't got the intelligence to understand that any person working full time and many working part time can, at least in Australia, very easily earn more than the tax free threshold, in fact way over that and more than any pension/income support amount.

If the child is a child of your relationship with your partner then this is taken into consideration, by the relevant dependant child amount, this is worked out using the same cost of children tables as for CS achildren , except that only your adjustable taxable income is used. So unles there are special circumstances then a reason 9 would fail.

What I would suggest is to create a copy of the COA decision with names and information identifying anybody removed/changed and posting it, that could then be the basis of going forward. Obviously you need to object within the timeframes also I'd suggest being prepared to take this to SSAT and perhaps to court.
MikeT, would like your views on this disclosure issue.  I am solidly forming the view that a lot of CSA's current process actually is in breach of not the Privacy Act but the secrecy provisions contained in their own acts and the taxation administration act.  I am quite prepared to have a punch up with them on this issue, because I think they have innapropriately accessed my tax records and placed me in a compromising situation with my employer by informing them I was subject to a COA while asking some questions about the composition of my salary - which I could have answered had they asked.
Bigred, I do think that the CSA without doubt, when doing COA's especially are in breach of the privacy act. This was brought up when I was involved in discussions about the review of the COA process. I think I've posted what I think is required, individual processes and hence forms, not at the COA reason level but at sub levels for each reason and that very strict defined ways of applying changes exist (I was actually working on a new version of the calculator that could apply departures, the front end works but I haven't had the time or incllination, also partly due to the review, to go any further).

I'm not sure what you mean by the secrecy provisions in thier own act, whether that's them keeping things secret or them not abiding to the secrecy of clients(sic) information or perhaps both. Certainly I think COA decisions should be freely available like court/SSAT decisions, tax rulings and so on. I also think that the PI's (Procedural instructions) should be freely available as these are what CSA officers should follow. I believe these are also wrong and discriminate against the payer, for the purpose of transferring or collecting more. One example that I believe exists, is used is for when care level is disputed. I believe the argument of what is accepted by both is used. e.g. if one says 75 days the other 125, then 75 is taken as  both agree to 75 days or more, however the same logic applies for 125 days or less. Obviously 100 daysshould be set with a proviso that evidence of actual care is provided throughout the 6 month interim care order period.

As for a punch up, what I would like to see is a list of things (tax deductions, their inappropriate and wayward psuedo accounting practices etc etc etc) taken to and decided in court, by some sort of class action.

My main problem is that I have personally had very little in dealings with the CSA, so much of what I say is based more on theory (if that's the right word). However even I've been subject to breach of privacy. I was phoned by a relatively senior officer, after I had informed the CSA that I should not be contacted by phone. The officer went back through records and got a phone number. The officer was pretty apologetic as she knew that I could have taken things further, especially as she was chasing up for Matt Miller.  They now have my phone number it's 00 0000 0000 (did that through the IT people when I enrolled for CSA online [well tried to enroll it wouldn't let me, but it let them]). Uhhm I wonder if those from the CSA who watch this will be rushing off to find out who's got that phone number. :)
MikeT, I am working something up on this point.  If I am correct, as I was on the garnishee point I might add, I might actually be able to blow quite a hole in a lot of CSA' processes.  And CSA staffers who read this - suggest you be careful about any official records you may access or any information you provide to other people.  You may find you have committed a criminal offence for which you a personally answerable - rather than the soft feather sanctions afforded for privacy breaches.

Reason 2,3 & 8

Thanks for your reply Mike T, much appreciated.

I am not quite sure I understand the wording of 'departure', could you explain this further?

I understand that the child of our relationship is included in the CS amount, however what would be 'special circumstances' for me regarding financial support of my partner and her son, which we have 50%, under reason 9.

My ex has been awarded reason 2 - special needs tutoring which she added in half way through the COA process, and started one child in tutoring half way through the COA process, he's 5 and in kindergarten!

Reason 3 - cost the applicant extra to care for, educate, or train the children in the way the parents had intended - we agreed to send our eldest to private (catholic) school pre separation, and papers were signed, pre separation, however we separated soon thereafter and I have not been consulted since, re: schooling for other two nor affordability, how can the SCO rule that this is the way both parent intended, on a page that was signed 4 and a half years ago and no communication since regardless of care. If the law says joint or shared decisions, I have not even been given 1% say!

Reason 8 - could you show me the 3 stringent criteria, as I will be putting this in my objection

I am still astounded that they won't allow me to support my partner and son (pushing her back in to work), however they will allow the tax payers to support my ex, the double standards.

Go Bigred
OBCH said
I am not quite sure I understand the wording of 'departure', could you explain this further?

Departure, a change of assessment allows the CSA to make a departure from using only the formula (that's how I understand or misunderstand it). So a change of assessment can result in a departure (in the Child Support Assessment Act departure is the term used e.g. Part 6A Departure from administrative assessment of child support (departure determinations))
 
Reason 9 would only likely be for your partner, again the CSA appear to consider that the cost of a partner, if the person claiming is a payer, is zilch, when I believe that it should be the self-support amount ($18808 perhaps adjusted to consider a reduction to consider the economies of scale).

Reason 3, the words had intended as opposed to intend means that the CSA will likely grab any agreement as intetntion. I believe that this aspect needs to be changed to fairly reflect the decision making available to an intact family. If both agree and continue to agree (agreements would end whenever a change of school is made), no problem. If one disagrees, then an income test based upon the average incomes of those who pay school fees would have to be earnt by both parents for a unilateral decision. Perhaps Secretary_SPCA could mull over that.

Reason 8 the criteria are :-

The CSA Guide 2.6.14 said
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));

AND

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));

AND

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.

I'd suggest you have a good lok at the CSA guide (sections under 2.6) and also the underlying legislation. Here's a link The CSA Guide - 2.6
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