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CSA Arrears of $30K

My wife's ex husband has a CSA arrears of $30K and has not paid child support for their three teenage children. He got himself into this position because he retired early from his job (58 years old approx) to live off his super, and then drew $10K per month from his super (which he admitted to in writing, through the CoA and objections process) and then got caught out in the CoA

He now has not paid child support, and has told CSA he will not pay child support and there is nothing we can do about it.

We are slowly sliding backwards raising three teenage children, and have accrued a significant debt ourselves in order to pay for education, clothing etc for the children. And we are not talking 5 star restaurants and top line clothes here either. All three children are in the public education system.

CSA dont seem interested in recovering the debt. How can we push this along? Is court a viable option?

We have his admission in writing that he has acted fraudulently with CSA. Is this also actionable?
Guest said
CSA dont seem interested in recovering the debt. How can we push this along? Is court a viable option?
You can try to push it along by objecting to the decision. Under Section 113A of the registration and Collection Act, court is an action. However, it cannot be stated that such court action is a viable (workable) option as that would depend upon many criteria.

Here's what the CSA Guide says in regard to a payee's right to enforce debt:-

The CSA Guide - 5.4.7: Payee's right to enforce debt via court proceedings said
5.4.7: Payee's right to enforce debt via court proceedings
Version 2.0, Last updated 17 March 2008 5:00pm
Context

Once CSA registers a registrable maintenance liability for collection, the debts arising under the liability are debts due by the payer to the Commonwealth, rather than to the payee. Payment of these debts is generally only enforceable by CSA. However, from 1 January 2007, the payee of a registered maintenance liability can bring court proceedings to recover amounts owed by the payer to CSA.
Legislative references

    * Sections 30, 105, 111E, 111F, 111G, 113, 113A and 120 Child Support (Registration and Collection) Act 1988

Explanation

In most cases, CSA is solely entitled to and responsible for collecting a registered maintenance liability. The payer may voluntarily make payments directly to the payee or a third party in the form of non-agency payments; however, the payee of a registered maintenance liability may not enforce payments under that liability except by instituting court proceedings under section 113A of the Registration and Collection Act (section 30(3) of the Registration and Collection Act).
Prior notice to CSA

A payee must give prior notice to CSA of his or her intention to institute court proceedings. The notice must be in writing (including by email or facsimile) and given to CSA at least 14 days before the payee files his or her application in the court, unless the court allows for a shorter period because of exceptional circumstances (section 113A(1) of the Registration and Collection Act).
In which court may the payee institute proceedings?

The payee can choose to enforce the debt under the Family Law Act, or take civil action to recover the debt (section 113(1) of the Registration and Collection Act).

Civil action involves obtaining judgment, and then enforcing the judgment through the court.

Proceedings under the Family Law Act may be brought in any court with family law jurisdiction including the Federal Magistrates Court and State, Local and Magistrates Courts. The Family Law Act and Rules (and related Federal Magistrates Court Rules) apply to child support enforcement proceedings under the Registration and Collection Act as if the proceedings had been brought under the Family Law Act (section 105 of the Registration and Collection Act).
Parties to the proceedings

The payee and payer are the parties to proceedings brought by the payee under section 113A of the Registration and Collection Act. CSA will not normally be involved, however, it has a discretion to intervene in payee enforcement proceedings (section 111E of the Registration and Collection Act).

The Commonwealth is not liable for costs in enforcement proceedings brought by the payee unless CSA is involved as a party (section 111G of the Registration and Collection Act). If CSA is involved, the court would decide, upon application from the parties, whether to order costs against CSA or any other party.
Payments pursuant to orders

Where the court orders the payer to make a payment, that payment must be made to CSA. CSA must pay the amount received from the payer in accordance with the order to the payee as soon as practicable (section 111F of the Registration and Collection Act).
Court's power to obtain information

In payee enforcement proceedings, the court may exercise the Registrar's powers to obtain information and evidence for the purposes of the Registration and Collection Act (sections 120(1) and 120(1A) of the Registration and Collection Act).
Payee must notify CSA of any orders

The payee is obliged to provide CSA with notice within 14 days of the court making any order in relation to the payee and the debt (including orders about costs  which are not collectable by CSA) (section 113A(2) of the Registration and Collection Act).

Notice may be provided to CSA in writing (including via email or facsimile), personally or via telephone.

It is an offence if the payee fails to notify CSA that a court order has been made in relation to the payee and the debt due in relation to the liability (section 113A(3)).

Regrading the viability of court action. The only reason that the CSA cannot pursue recovery of debts is if it is considered that the cost of doing so would be prohibitive or that the debt would not be legally recoverable. I would suggest that you should attempt to get the CSA to explain, in detail, as to why they are not pursuing the debt as not doing so could further jeopardise your financial situation.

Here's what the CSA Guide says in relation to non-pursuit of debt:

The CSA Guide - 5.7.1: Non-pursuit of debt said
5.7.1: Non-pursuit of debt
Version 2.2, Last updated 3 February 2010 3:00pm
Context

CSA must pursue recovery of all registered child support debts unless they are uneconomical to pursue or not legally recoverable.
Legislative references

    * Section 47 Financial Management and Accountability Act 1997
    * Sections 4 and 80 Child Support (Registration and Collection) Act 1988

Explanation
Legal authority for CSA not to pursue a debt

CSA has no authority to release a person who owes a debt to the Commonwealth from payment of that debt. However, in limited circumstances, CSA can decide not to pursue recovery of a debt. The person would continue to owe the debt to the Commonwealth, but CSA will not take action to recover it unless the person's circumstances change.

Under the Financial Management and Accountability Act 1997 (the FMA Act) the Secretary of the Department of Human Services is responsible for pursuing recovery of all debt owed to CSA, unless:

    * the debt is not legally recoverable (section 47(1)(b) FMA Act), or
    * it is uneconomical to pursue recovery of the debt (section 47(1)© FMA Act).

Grounds for non-pursuit

Two categories for non-pursuit of debt are allowable under the Financial Management and Accountability Act 1997. All debts must be pursued unless they are irrecoverable at law or uneconomical to pursue.
Irrecoverable at law

A debt may be irrecoverable at law if:

    * CSA has taken all reasonable action to recover the debt, but has not been able to collect it.

Example

The debtor is deceased and the executor of their estate has advised CSA that there are insufficient assets to meet any part of the child support liability.

    * a court is likely to rule in favour of the debtor in enforcement proceedings

Example

A payer has a child support debt payable to CSA for a period when the payer and payee had reconciled, but the payee did not elect to end the child support assessment during the period the payer and payee lived together.

Example

A debtor owes an amount that formed part of their provable debt in bankruptcy, and has now been discharged from bankruptcy. However, this does not apply where the debt was a debt for child support or spousal maintenance, which are both debts, which survive bankruptcy.

    * the debtor resides in a country which does not have reciprocal maintenance arrangements with Australia, and the payer does not derive any income or hold any assets in Australia.

Example

Payer resides in China (which is not a reciprocating jurisdiction). The payer has business interests in China, but has no income or assets in Australia.
Uneconomical to pursue

A debt may be uneconomical to pursue if:

    * it would cost the Commonwealth more than the amount of the debt to recover it.

Example

The debt is less than $500, unsuccessful recovery action has been taken and the debt balance has not changed for 12 months.

      the debtor has no capacity to pay the debt.

Examples

The debtor is serving a period of imprisonment and has no assets or source of income.

The debtor has been declared bankrupt and has no present or future capacity to pay.

    * CSA has taken reasonable action to trace a debtor for a continuous period of at least 6 months, but their whereabouts remain unknown and CSA has not identified any income or assets belonging to the debtor.

CSA is required to maintain a register of all the debts that it has decided not to pursue. CSA will regularly review a decision not to pursue recovery of a debt to establish whether there has been a change in the debtor's circumstances that would make it appropriate to resume action to pursue the debt.

CSA will not advise a payer that it has made a decision not to pursue the recovery of their child support debt. The debt is still owed to CSA and will remain on the payer's account. However, CSA may inform a payer that it will take no further action to recover the debt until their circumstances indicate that they have a capacity to pay the debt. CSA will ask the liable parent to contact CSA as soon as their circumstances change.

CSA will advise the payee when it decides not to pursue recovery of a child support debt from a payer. CSA will invite the payee to advise CSA if they become aware of any change in the payer's circumstances that may make it possible for CSA to collect the debt.

A payee can object to CSA's decision not to pursue recovery of a child support debt that has remained unpaid for at least 6 months (sections 4(1) and 80(1) of the Registration and Collection Act) See Chapter 4.1.
My husband received a letter from the CSA. It requested my husband document in 2002 said it is verifying his estimated income during that time. Is this a lawful request?
petit diable said
My husband received a letter from the CSA. It requested my husband document in 2002 said it is verifying his estimated income during that time. Is this a lawful request?
The CS legislation does allow this even though it contradicts other legislation, such as tax legislation, in regards to record keeping requirements. Basically the CSA are trying to grab whatever money they can. I personally consider that a solid argument could be made in court that such measures cannot be proven to be just and equitable due to there being no requirement to keep such records.

If you wish to contest whatever decision the CSA come to, you could object to the matter (CS will likely not uphold the objection or uphold the objection and introduce some other amount that is likely to not be just and equitable). If the objection is not upheld or it is and the changed amount is not just and equitable then the matter can be taken to SSAT or even directly to court. You are more likely to get a fairer decision from SSAT than the CSA but an even fairer decision from court.
Thank you MikeT for the advice. My husband is waiting for the decision of SSAT. It is the case with his second marriage. SSAT seems to understand the situation as we provided solid argument and evidence. We know that SSAT cannot make decision in regard to CSA's misconduct but he provided the information of CSA's misconducts in his submission because he prepare to bring this to court.

Suddenly after he submitted his final submission to SSAT, the CSA sent this letter to him. This case is about his child from the first marriage. I have the feeling that the CSA is acting like a child itself. There is no application in this case.
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