I was wondering if anybody could help me in regards to the Child Support I receive from my ex husband.
He is a truckdriver who works for his father. For the past few years his annual income has gradually lessened until now he is down to $25000. I havent received an estimate for the last tax year. This is the wage that he earns while driving interstate. He has no wife/GF or other children. He has contact with our son whenever he wants it. I know from when I was married to him that his father "puts together" a tax return at the end of the year that suits the business and really has nothing to do with the wages he pays his son, which is cash in hand ever week. I have let this, and other things go, because I don't like to rock the boat. But a friend suggested this forum and I thought it wouldn't hurt to ask.
Do you think it would be worthwhile asking the CSA to look into it.
I think it's worth applying for a COA if you can PROVE his income is higher than the tax assessments. However I have no idea how you can do this in the situation your ex has arranged. I don't think CSA has a lot of resources to investigate this either. The way I see it though, what have you got to lose? Unless of course you currently have an amicable relationship with the ex - that will most likely be gone if you apply for COA.
Amicable...mmmmm, We just speak to each other as little as possible. I thought I would wait and see what this annual income would bring. But I am yet to have received an assessment. I was just reading the 10 reasons for a COA and noticed the special needs. My son has Autism. I may call the CSA and see what they say.
That was my point kalimnadancer (very cool name by the way!!). How do you prove that your ex has a realistically higher income than he declares to ATO? His employer will back his version of his earnings. What do you expect CSA to do exactly?? Seriously, what do you expect them to do to prove his income?? When his employer is his dad???
DKMKJ, you could try COA, that would perhaps get you more money, but I would suggest that it would very likely introduce unnecessary conflict and perhaps even life threatening results, as the COA process is very often very unfair and basically contrary to the very objective of the legisaltion and to be honest is very much just a means of collecting and or transferring more so that the hierarchy can report that they are doing a good job as the reporting process does not strive to show things such as children actually supported, or the object of the child support legislation being met, rather the reports basically show what money can be saved due to the FTB reduction realised when child support is transferred or collected.
In the recent past I was made aware of the intricacies of COA decisions for a person in the driving industry, driving dangerous goods. The net result of the COA was that this driver, would have to work illegally and unsafely to get anywhere close to what the COA determined this persons earnings as being. This driver was disallowed, by the COA, allowances for items necessary to work safely, this driver was disallowed allowances for all claimed legitimate expenses on the basis that allowance for meal expenses were a benefit to the driver as he didn't have to have the meals at home.
The driver did take the matter to SSAT, however the matter was then finalised by consent.
Whilst talking about SSAT (Social Security Appeals Tribunal), it should be noted that a very high percentage of published decisions show that the CSA is making what I believe is a very high number of unacceptable decisions that contravene the very legisaltion that drives them.
Perhaps a more recent SSAT decision could perhaps make yourself wary. Very basically COA resulted in payer being assessed with an income of $90,000, payee $25000. Objection resulted in $62,000 for payer (i.e. proof of the absolutely disgusting, unfair and unjust decisions that the COA can and do make). Matter taken to SSAT resulted in $58,500 for payer $45,000 for payee. The payee was found to have a greater capacity to earn. Should the person not have had the good sense to have objected and taken the matter to SSAT, then that person could well have taken drastic action to free them self from what was very likely an impossible position.
You say the other parent's income reduces, could this be due to other factors than what you appear to be considering as happening? Could the current economic climate be a factor? Could the other parent be working less hours, could the other parent have a reduced taxable income due to no pay rises, tax-changes, increased expenses (e.g. meals). CS for the same income will also generally reduce annually due to the core values used within the formula changing on an annual basis (basically MTAWE (Male Total Average Weekly Earnings) drives many figures, the SSA (Self-Support Amount) which is the first amount taken away from a parents income, is 1/3rd of the annualised MTAWE, the SSA has changed from 17538 to 18252 to 18808 over the last three years).
For the CSA to take action you may need to convince them that action is required, perhaps more so now as I have little doubt that the CSA would not be happy with what the results of published SSAT decisions show, so they may well be at task to look to the legislation more and that would involve there being a special circumstance for them to consider a COA. Therefore you may need to show them evidence that the other parent's taxable income is reducing due to efforts to reduce hide income. The whole COA process is recognised as being very invasive it is likely that you financial affairs would also be investigated.
With regards to special needs, then if there are costs specific to the need then again you may be able to go through a Reason 2 COA. Here's what the CSA Guide says in regards to special needs :-
CSA Guide - 2.6.8: Reason 2 - the special needs of the child said
What are 'special needs'?
There may be a reason for changing an assessment if in the special circumstances of the case, the costs of maintaining a child are significantly affected because of the special needs of the child (section 117(2)(b)(ia)).
The phrase 'special circumstances of the case' is not defined in the Assessment Act. The Family Court has held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary' (Gyselman and Gyselman (1992) FLC 92-279).
A parent can make an application to change the child support assessment if they consider that the cost of meeting the special needs of a child significantly affects the costs of maintaining the child.
The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child (Lightfoot v Hampson (1996) FLC 92-663).
A condition that is distinct from the 'usual' childhood illnesses suffered by a child may be a condition that is 'out of the ordinary'.
A long-term or short-term physical, mental or learning disability may constitute such a condition.
In some cases, needs which arise from such special talents that are likely to lead to particular success or prominence may be considered 'special needs'. Gifted sports people could be considered to have special needs (Blamey and Blamey (1995) FLC 92-554).
A childs special needs will often be a fact accepted by both the payer and payee. However, in cases where there is a dispute, the person who seeks to rely on this reason will need to provide documentation, such as medical evidence, to substantiate their claim. Similarly, CSA will require the party making the application to provide evidence of the net expenditure associated with the special need, unless it is clear that the respondent accepts the other partys claim.
When are the costs of maintaining a child significantly affected?
If a child has special needs CSA will consider whether the costs of maintaining the child are higher because of the costs related to the special needs. The special needs must involve a cost that is additional to the normal needs of a child that are expected to be met from the child support assessment. For an assessment to be changed the costs must result in a need for additional financial support in addition to that provided by the child support assessment.
The fact that the child suffers from a severe disability or has a special ability does not, in itself, mean that an assessment should be changed. The overall test is whether the costs of supporting that child are significantly different from those faced by most other parents. If the costs are only slightly higher than usual they might not be considered to significantly affect a parent's ability to provide financial support for the child.
In some cases, a child may suffer from an illness that is easy and relatively inexpensive to treat but, because of complications, the expenses associated with that condition are significant in the short-term. In other cases, the child may have a disability but the costs associated with that disability are nominal in terms of the partys out-of-pocket expenses. This may be because the party receives significant subsidies from the government in relation to medication, therapy or treatment or because another person meets the expenses associated with the condition.
What is fair or 'just and equitable' in terms of special needs?
If a special need exists and it significantly adds to the costs of maintaining a child CSA must decide on the amount by which those costs exceed the 'usual' or expected costs. CSA will consider the financial circumstances (including assets) of the parents to decide who has the capacity to meet the additional expenses, given the assessed rate of child support. Either parent may be able to contribute towards the child's additional expenses taking into account their individual financial circumstances.
Entitlements that CSA does not take into account
Some carers may receive assistance such as a Carer Allowance from Centrelink. Carer Allowance is intended to compensate the carer for their indirect costs in providing personal care for a child with a disability. It is not a payment to assist with the direct expenses of the child's disability.
CSA will not take into account any payments of Carer Allowance (previously known as 'child disability allowance') that a carer receives from Centrelink when considering the financial circumstances of the carer. However, in looking at the question of whether a change to the assessment is just and equitable CSA will look at all the income, earning capacity, property and financial resources of both parents and the child (see Chapter 2.6.17 for more information on when a decision is considered to be just and equitable). Carer Allowance received by the carer may be taken into account as part of that consideration.
The kinds of changes to an assessment that reflect the special needs of a child
The kind of decision made will depend upon who is bearing the costs of the childs special needs. The additional costs of maintaining a child with special needs should be readily quantifiable. If the payee is meeting those expenses, it would usually be fair to apportion a percentage of responsibility for those costs to each parent according to their share of the combined child support income, and increase the assessment by the annual amount of the payers share of the costs.
Where a payer is bearing the costs of the childs special needs, it may be appropriate to increase the assessed costs of the child, apportion the additional cost between the parents according to their respective shares of the combined child support income, and decrease the amount of child support payable by the costs that the payer is meeting directly. Alternatively, it may be appropriate to adjust their self-support amount (called the exempted income amount in the child support formula pre July 2008) to reflect the amount that they would have to earn to meet the costs of the special needs of the child (using the method in Houlihan and Houlihan (1991) FLC 92-248). This allows the parents to use other administrative processes if necessary such as an estimate of current income. This approach will not produce a fair result in every case as the value of the financial relief to the parent can be low but it may be used when this reason is considered in isolation from other reasons. The final decision will depend on the circumstances of the case and any other reasons under consideration.
The effect of a change to an assessment on any means-tested assistance from government
Generally, any child support received by a payee is considered to be 'maintenance', and will affect the payees entitlement to Family Tax Benefit Part A at more than the base rate.
Maintenance that is paid specifically for the childs disability expenses is not assessable under the maintenance income test. However, not all special needs costs are considered disability expenses for Family Tax Benefit purposes. Disability expenses are those relating to a physical, psychological or intellectual disability or a childs learning difficulties. If CSA decides to increase a child support assessment based wholly or partly on the childs special needs, the notice of decision will clearly identify the component that relates to those special needs. The payee can then provide that information to Centrelink and ask it to consider whether that amount should be disregarded for Family Tax Benefit purposes.
How long will a decision to change the assessment under this reason apply?
Where there is a change to an assessment because of the special needs of a child the period of time the decision covers will depend upon how long the child is likely to require additional financial support. If a child has an ongoing or chronic illness or condition the decision to change the assessment may be for a long time. If the special need relates to a short-term condition (e.g. orthodontic work or treatment for an injury or a specific activity such as a sports camp) the change may be for a shorter time.
The interaction of reason 2 and the provisions for credit of non-agency payments
A payer who makes certain types of payments to third parties, including fees for essential medical and dental services for a child, is generally able to have those payments credited towards their liability to pay child support for that child, even if the payee did not intend that the amount be for child support. However, this option is not generally available if CSA has already taken into account those costs met by the payer in making a decision to reduce or refuse to change the assessment, and is only available if the payer has less than regular care of all of the children to whom the relevant administrative assessment relates. See Chapter 5.3.1 - Non-agency payments for further information.
I guess that the above could be considered as trying to convince you to not take the COA course. This is not the intention, rather it is perhaps giving you additional factors to consider that I am pretty sure that the CSA would not provide.
Hopefully the above will assist you in making the decision.
So if this ex husband is claiming he is only earning $25,000 per year , how is it he can buy a house and pay the payments on that low amount? Can't DKMKJ apply on reason 8?
Acep74, most of my reply that I wrote (i.e. not the quoted part) was in regard to a reason 8 (a parents income, property, financial resources, or earning capacity), so yes DKMKJ could try for a reason 8.
If you really think there is a large discrepency in his actual wages and declared wages then the CSA should be able to assist. A COA may be a worthwhile process for you. If he is paying minimal child support and if he is making no other extra contributions then it is only fair.
How to prove it and how much assistance the CSA will be is another thing. They are disliked by payers and payees alike and have an efficient way of creating conflict due to their methods.
It is all about numbers and records. If he is lowering his income for tax and possibly CSA reasons it will not be easy. An income/expenditure statement would be a start to get an idea. Truck drivers keep log books so there are records kept here of hours worked.
I would suggest first speaking to said ex and explaining what you think and allowing him an oppurtunity to make ammends. If no success then try a COA.
"When there is no enemy within, the enemies outside can not hurt you"