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CSA and Child Support Agreements

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When my ex and I split we negotiated a settlement that comprised of Orders of Consent, a Financial Agreement and a Child Support Agreement. All three documents were signed on the same day in court chambers. It was my understanding that each was binding, interconnected and would be applied until the children were 18. These documents were drawn up to protect the children. I believed that they provided clear guidelines and that in following these guidelines we would not need to return to the turbulent and emotionally scaring times that had preceded (and stimulated) their creation.

The Agreement recognised that my ex-husband (self employed company director) and I (PAYE) earn similar amounts and therefore, since we have a 50/50 shared care arrangement,  we would share all costs associated with the children 50/50 and neither would require the other to make additional child support payments.

We followed these terms for 5 years until my ex decided (after a disagreement) to ask CSA to collect. It was then (middle of  last year) that I discovered that the Child Support Agreement had never actually made it to the Child Support Agency files (even though I have a letter from the solicitor saying it was sent). I tried to get it accepted but was told it could not be accepted as binding agreement because legislation had changed and I didn't have 'legal advice certificates' (despite the fact that it was clearly drafted by my ex husbands solicitor and signed by both our solicitors and ourselves).  It could not be accepted as a limited agreement because the assessment amount listed was less that the current amount I was required to pay and the words "may change from time to time" could only be accepted if my ex agreed (unlikely since I think he wanted to use CSA as a means of revenge and control)" I was told it could be used as evident of intent.

So began a 'battle' that is still continuing. I lodged non agency payments (following our Child Support agreement terms). My ex did not accept them so CSA rejected them. I lodged a complaint which found in my favour, then he lodged an appeal, now we are at SSAT.

We have been through the Change of Assessment which did raise his assessment, but not to a true level (cash and contra-deals are hard beasts to follow). However it did mean I could submit our Agreement which was subsequently accepted as a Limited Agreement. I breathed a sigh of relief, thinking 'disaster averted'.

Now, I find out the agreement was terminated by my ex (in November). They did not sent me anything to say the agreement had been terminated. I only learned about it a few days ago, despite making three calls to CSA (in Nov and Dec) to confirm it was still place. It was told it was terminated under the ruling "more than 3 years have passed with the existing agreement in place and written notice is provided by the parent who wants to end it". This confuses me since CSA have only had the agreement on their files for 1 month. Now, here we are in the middle of Jan. I cannot afford to pay private school fees and pay my ex-husband Child support. The kids will need to change schools and the trauma that this will cause them (especially at this late stage) is terrifying. The insult is, we have an Child Support Agreement, my ex-husbands situation today is exactly the same as it was when the agreement was written (but I actually have less income due to GFC) to protect against this and due to bureaucracy, it is not working.

So… this is my torment. My ex-husband can manipulate the system and use CSA to punish me and take the money I work very hard to earn (perhaps I should add here that I am a teacher, so my wage is not really that high to begin with).  Remember we have 50/50 shared care and pay 50/50 for everything.

Where is the justice?
4TW said
Where is the justice?

Where does is say there will be Justice? Although saying that the legislation does say that the the object of the legislation is to ensure that parents (plural, which still appears to be a concept that the CSA cannot grasp (i.e. that proper applies to both parents, not that it means that they act to advantage the recipient); as is evidenced by the numerous reports and very noticeably the relatively recent report from the Ombudsman).

Basically, the only way in many situations, to potentially get a chance of the legislation being interpreted and applied properly is to take the path to court. That is to object (yep CSA very rarely consider anything they do as wrong so objecting has a very slim chance of affecting any change and if so it can virtually be guaranteed to only be a nudge along the way to a proper decision). The only real use of the objection process, is that the legislation requires you to object, in most situations, before you can can take the matter to SSAT or to court. SSAT, most frequently the next step, is sometimes closer to the mark, sometimes not. I believe taking the matter to court has the greatest chance of the legislation being interpreted correctly, however, you have to take it to court, in general, on a matter of law, which can be a confusing concept (I still don't really grasp it). However, I believe if the decision is not just and proper, then that is a point of law.

With regard to the agreement, I don't think that the start date of the agreement is the date it was lodged with the CSA, rather the date the agreement was made, which appears to have been 5 years ago (although this may not be the case). However, with limited agreements this is a bit of a moot point as in any case a limited agreement must be at least the amount of a notional assessment (i.e. a normal assessment that isn't enacted but ensures that the agreement is at least as much as what a formula based assessment would be). This enshrines the real reason why CS exists and why the government wants to be involved. That is that for each $1 collected or transferred the FTB payments for that child are reduced by 50c. Basically it is a tax in all but name and like most Government departments/agencies tasked with the collection of money, they will collect as much as they can by hook or by crook and in the case of CS irrespective of the ensuing harm that the children suffer due to their aggressive attitude toward making a parent pay as much as they can.

The biggest shame is that the legislation fails abysmally in not ensuring that the child or children are advantaged by such monies as there is no enforcement of the responsibility of the receiving parent to spend the money on the children.

With regard to school fees, this is another factor where the legislation can be enacted, at least by the CSA, with disregard for what any child in an intact family can benefit from, that is that the experience of life changes due to economics is removed. My guess is that if you (both parents) were really unable to afford school fees then a court would very likely interpret the legislation accordingly. The CSA, as the courts have themselves said, frequently apply only a part of the legislation not the legislation in it's entirety (i.e. most if not all decisions should be just and equitable).

Back to your question. I was once told that going to court (really the CSA is a court in that it is a registrar) is only a chance of having justice done. I believe going to the CSA leg of the court is, in a vast number of circumstances, a very minute chance of having justice done.
Thanks, you are echoing the sentimates my  experience has taught me. In fact, when the agreement was being drawn up I was warned that it had to take the notional assesment into account so that FTB is reduced. Ironically, it doesn't seem to matter that FTB is what it is because of self employed 'creative accounting'.

The legislation and the bureacracracy administering it needs to change. Hopefully sites like this are a start???
Your ex has the ability to reduce his taxable income due to running a business. As a teacher you also have access to ways to reducing your taxable income. I suggest you get financial advice on this.

Also just wondering how you will achieve changing schools if the ex does not agree? You may need to go to court.
Thanks, will ask about reducing my taxble income but given the fact that CSA like to 'add back deductions' I am not overly confident. The benefit my ex has is, that he simple does not pay himself. He pays for most of his expenses through the business and receives cash (or at least he used to when we were together).

As far as schools go, our orders simply say we need to agree before enrolling in another school. My son is about to enter year 10 so this is a natural moving point (i.e moving into a 'senior school'). My daughter is in year 6 and I do believe it is very important that she stays where she it, but 2012 it is 'all open'.

I spoke to CSA about obligations re paymentsif I am also paying Child Support. The girl (who was helpful) said that since we are in a 50/50 care arrangement the assumption was that we would be paying half but that they didn't have a specific 'rule' about private school fees. So if the Child Support Agreement (which does specify we pay half school fees) is not recognised, there is no legal obligation for me to pay half. Therefore, if needs be I will let the school know I can no longer afford the fees, if my ex husband does not pay the other half (by rights he can use the child support I am givinghim), the school will cancel my son's enrolment.

Really this is about equity. We have an Agreement which offers equity, we pay 50/50. But, he can not pick and choose which aspects of the agreement to follow and which not. So, either we pay 50, 50 and no child support, or new arrangements need to be made.
Private school fees are always an issue where one party has an income reduction or is finding it hard to make ends meet and can no longer afford the fees or their contribution to fees. The CSA often look at what the intention was before coming to a decision. We have seen cases of hardship where the CSA has confirmed that the school fees are to be paid and continued the assessment at a high level when the payer cannot pay and therefore builds up arrears.

You raise a number of interesting points and I have also had a case recently where we spent a lengthy process getting a parenting plan in place, that covered time spent with kids, holidays, schools and child support to be paid. Done by consent for a mother and only to find CSA would not implement/honour the new arrangements ($50.00) a month because a prior agreement had existed and the payer said he couldn't afford it, yet in weeks before agreed and signed off on all the new arrangements with his solicitor. So we will be filing a  formal objection to the CSA and going down a path that will cost a squillion hours of time on all sides that will far outweigh the amount to be paid by thousands of dollars when you take into a account the time that CSA officers will spend dealing with it.

In your case will the father agree to assisting with  more than half the fees? If you can't afford it you can't afford it. I assume he is aware of the issues.

Is he aware that it is such a serious position now as to require a change of school? Now is a good time for the year 10 child and 2012 for the other if you are going to change. You will need to try and reach agreement sooner than later as uniforms are needed in the next week or so with school the following week.

Have you started an enrolment process at the other school? Perhaps request a meeting with yr ex partner at the proposed new school so the reality may start to settle in. As you have orders by consent do they cover specifically a private school arrangement as moving to another school may require those to be varied and thus an application and probably mediation attendance also?

Executive Secretary - Shared Parenting Council of Australia
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Since you have already been through a COA and his income has been increased I think you should look at their decision very carefully as you may find the info your need for possibly another COA. The main principal used is very simply a comparison of your lifestyles and if there are any significant differences. So if you can show that your lifestyles are similar, this should mean your incomes are also similar.

You can also argue using taxable income figures for a basis of their assessment is unfair as he has access to tax rules that allows him to minimise his taxable income a lot more that what you can do as a teacher.

Frankly I believe the legislation should be changed so there is no child support when care is 50/50.

Re private schooling now is the time to make the change - This is an entirely different matter you your child support issues.

As you are a professional educator as well as mother of the children, and you have made the decision that you cannot afford private school fees, since there is only two week to go then you had better sort this out ASAP. As long as your older child is happy with the change then I can't see you having any problems making the change. Unlike the C$A I can't see the Family Court making an order for the children to attend a private school.
Interesting that you say the CSA looks at "the intention before comming to a decision". Our intention was for us to pay half each, and the half I pay was to be credited against any child support liability (and the same for him). So as I see it, either we follow the whole intention (ie the agreement) or none of it (which means I am not liable for half provate school fees, just half 'living'.

You are sooooooo right about the thousands of hours wasted (and the corespondingly high amount of money wasted as CSA follows through the claims made by parents who see CSA as a way to force compliance (control) on their ex spouses.

My ex and I have equal incomes and he knows this, It is my sincere belief that the battles we have been having over the past 6 months are simply a way for him to control me (the way he used to when we were married). This is why the legislation must change and I would love to be part of any movement dedicated to making a real difference in the lives of children by addressing the shortcommings of the CSA.

I also believe (as mentioned below) in 50/50 arrangements there should be no child support, simply pay everything 50/50. It would be so much simplier if CSA was not involved.
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