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Information gathering powers under the Assessment Act

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I (payer) have a question.

Many of you probably are familiar with the notice, which is included in every Notice of Child Support Assessment:

IMPORTANT

Changes to your circumstances
To ensure that your child support assessment reflects your current situation, you must tell CSA within 14 days of any changes to your circumstances, such as care arrangement, income, employment status or contact details

I recently asked a customer support officer (CSO) handling my case whether I am legally obliged to comply with the above requirement. An immediate  answer was: "of course you are". "What is it in relation to?" asked CSP. I said that last year the mother (payee) did not tell CSA that her income has dramatically increased, and the amount on the assessment does not reflect her ATI. "Ooooh",  said the CSO. "It makes a difference. No, she doesn't have to tell CSA anything. Her income will be picked up once she has lodged her tax return".

The question. Does a parent has a legal obligation to comply with the notice (like CS Assessment) of the Registrar? Is the section 160 of CSAA applicable?

Thank you for your feedback.
They pick up things in tax returns all the time however it is a lawful requirement for any change in circumstance to be notified  within the required timeframe, this is not enforced for Payees. Payers …. different  kettle of fish.

I realised this when registration of case was proven fraudulent  and CSA refused to notify centrelink of Fraud as required by law telling me centrelink would pick it up at the end of the tax year …. this was 3 months ago and still another 7 months before centrelink would even be aware of this. CSA then notify payee and Payee becomes pregnant. Could CSA be seen to be assisting fraud? Not many judges will put a pregnant  women or 1 with newborns in prison. so in my book the answer is yes. that is another matter entirely though I guess … so back to the question at hand.



Please do note if the payee moves they are obliged to notify CSA as a judge can order service via CSA if whereabouts of the lives with parent are unknown due to Lives with parent unilaterally deciding to relocate.

Just waiting for a judge to order change of lives with parent in an undefended hearing  due to service failure  because CSA just transfer monies to bank accounts and are happy to change care percentages on the say so of a lives with parent who has relocated interstate without the knowledge or consent of the Payer.

This is an example of why it is a legal requirement to notify change of circumstance just as centrelink recipients must notify centrelink of change in circumstance.



This is just my view feel free to tell me if I am not correct.

You can fool some of the people some of the time but you cant fool all of the people all of  the time unless they work for CSA and youre a Payee:)

csa assisting fraud

The CSA in July of this year reported my information of evasion to the ATO referal centre. The CSA can not give you any information due to privacy procedures. I don't even know if the CSA really did report the information all they just say it to get rid of you….. How long does a ATO investigation take? Do the ATO investigate all reports?

After the findings in SSAT decision they stated the person had been understating their income for several years since 2004 for child support purposes due to depreciation expenses were they also required by law to pass this information on to the ATO. Does anyone know?
I'm not aware of C$A actively pursuing payers that get yearly pay increases etc…, and unless you can calculate your taxable income correctly every time there is an income change (increase) during the tax year, then you are better off just putting in your tax return ASAP after June 30 each year and rely on that for your child support calculations. C$A are happy if you tell them about income increases during the year as they will then increase your liability which helps to keep them in their job. If when your return is done and you have paid too much, you don't stand much chance getting the $$$ back. Only tell them during the tax year if your taxable income is going to decrease.
FairDeal said
I recently asked a customer support officer (CSO) handling my case whether I am legally obliged to comply with the above requirement. An immediate answer was: "of course you are". "What is it in relation to?" asked CSP. I said that last year the mother (payee) did not tell CSA that her income has dramatically increased, and the amount on the assessment does not reflect her ATI. "Ooooh", said the CSO. "It makes a difference. No, she doesn't have to tell CSA anything. Her income will be picked up once she has lodged her tax return".

The question. Does a parent has a legal obligation to comply with the notice (like CS Assessment) of the Registrar? Is the section 160 of CSAA applicable?
This is a good question. I don't believe you are LEGALLY bound to advise the CSA of a change of income BUT if it impacts your situation as a payer or payee favourably I would assume you would. If anyone disagrees I would like to hear your views.

In relation to are you legally bound to comply with a CSA notice (Where they have sent you a specific notice) requiring you to advise them certain information then YES under the statutory powers in sections Sections 160, 161 and 162A of the Child Support (Assessment) Act 1989.



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
 
Here's an expansion of what Secretary_SPCA has said as from the CSAGuide:

The CSA Guide - 6.2.3: Information gathering powers under the Assessment Act said
6.2.3: Information gathering powers under the Assessment Act

Version 2.0, Last updated 17 March 2008 5:00pm

Context

CSA has statutory powers to obtain information for the purposes of making and varying child support assessments.

Legislative references

Sections 160, 161 and 162A Child Support (Assessment) Act 1989

Regulation 10 Child Support (Assessment) Regulations 1989

Explanation

CSA can give a notice to a person requiring them to notify CSA within 14 days, and in the manner specified in the notice (section 160), if:

    * a specified event or change of circumstances happens; or
    * the person becomes aware that a specified event or change of circumstances is likely to happen.

Only events that might affect the payment of child support or the rate at which it is payable can be specified in the notice.

CSA can also require a person to:

    * provide information (section 161(1)(a));
    * attend and answer questions (section 161(1)(b)); and
    * produce documents (section 161(1)©).

These powers must be exercised for the purposes of the Assessment Act.

Example

CSA must not use the powers contained in the Assessment Act to obtain information to enforce payment.

A person who is required to attend under section 161(1)(b) (other than a payer, payee, or their representative) is entitled to expenses (section 161(2) and regulation 10).

A notice must give the person a reasonable time to comply. What is a reasonable time will depend on the type and extent of the information sought. CSA will not collect information that is not necessary for its purposes or intrudes unreasonably on a persons privacy (see information about the Privacy Act).

Whilst it can be appropriate to seek information from other departments via informal arrangements, a notice can be issued to another government department. However, there will be instances where secrecy provisions and/or privacy obligations will prevent other departments from disclosing information in the absence of legal authority to do so.

A notice must also be properly served on the person (see chapter 6.7).

Obtaining information from residents of reciprocating jurisdictions

Where a person is or was resident in a reciprocating jurisdiction, and CSA does not have sufficient information to determine that persons overseas income, CSA may send a notice to the person to to the relevant overseas authority requesting any information or documents that are necessary to enable the persons overseas income to be determined (section 162A(1)).

Where the payer or payee is resident overseas in a reciprocating jurisdiction, a notice can be given to the person who is resident overseas or to the overseas authority in the relevant reciprocating jurisdiction requesting them to notify CSA within 60 days and in the manner specified in the notice (section 162A(2)), if:

    * a specified event or change of circumstances happens; or
    * the person becomes aware that a specified event or change of circumstances is likely to happen.

Only events that might affect the payment of child support or the rate at which it is payable can be specified in the notice (section 162A(3)).

Here's the legislation:

Child Support Assessment Act 1989 said
160  Notification requirements
   (1)   The Registrar may, by written notice given to a person to or by whom child support is payable, require the person to notify the Registrar, within 14 days and in the manner specified in the notice, if:
        (a)   an event or change of circumstances specified in the notice happens; or
        (b)   the person becomes aware that an event or change of circumstances specified in the notice is likely to happen.
   (2)   An event or change of circumstances must not be specified in a notice under subsection (1) unless the happening of the event or change of circumstances might affect the payment of child support or the rate at which it is payable.
   (3)   A person who refuses or fails to comply with a notice under subsection (1) is guilty of an offence punishable on conviction by imprisonment for a period not exceeding 6 months.
   (3A)   Subsection (3) applies only to the extent to which the person is capable of complying with the notice.
   (3B)   Subsection (3) does not apply if the person has a reasonable excuse.
   (3C)   Subsection (3) is an offence of strict liability.
   (4)   It is a reasonable excuse for a person to refuse or fail to comply with a requirement under subsection (1) if complying with the requirement may tend to incriminate the person.
   (5)   This section does not apply to a person:
        (a)   in respect of whom an international maintenance arrangement applies; and
        (b)   who is a resident of a reciprocating jurisdiction.

161  Obtaining of information and evidence
   (1)   The Registrar may, where it is reasonably necessary for the purposes of this Act, by written notice, require a person:
        (a)   to give to the Registrar, within a reasonable period (being a period of not less than 7 days), and in a reasonable manner, specified in the notice, such information as the Registrar requires; and
        (b)   to attend before the Registrar, or before an officer authorised by the Registrar for the purpose, at a reasonable time and place specified in the notice, and then and there answer questions; and
        ©   to produce to the Registrar, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.
   (2)   The regulations must prescribe scales of expenses to be allowed to persons required to attend under this section.
   (3)   A person who refuses or fails to comply with a requirement made under subsection (1) is guilty of an offence punishable on conviction by imprisonment for a period not exceeding 6 months.
   (3A)   Subsection (3) applies only to the extent to which the person is capable of complying with the requirement.
   (3B)   Subsection (3) does not apply if the person has a reasonable excuse.
   (3C)   Subsection (3) is an offence of strict liability.
   (4)   It is a reasonable excuse for a person to refuse or fail to comply with a requirement under subsection (1) if complying with the requirement may tend to incriminate the person.
   (6)   This section does not apply in relation to a person:
        (a)   in respect of whom an international maintenance arrangement applies; and
        (b)   who is a resident of a reciprocating jurisdiction.

162  Order to comply with requirement
   (1)   Where:
        (a)   a person is convicted before a court of an offence against subsection 161(3); or
        (b)   a court makes an order under section 19B of the Crimes Act 1914 in relation to a person in relation to an offence against subsection 161(3);
in relation to the refusal or failure of the person to comply (whether in whole or part) with a requirement made by or under this Act, the court may, in addition to imposing a penalty on the person or making such an order in relation to the person, as the case may be, and even though the time for complying with the requirement or any other such requirement has passed, order the person to comply with:
        ©   the requirement; and
        (d)   such other requirements made, or that could be made, in relation to the person by or under this Act as the court considers necessary to ensure the effectiveness of the first mentioned requirement;
within a specified time or at a specified place and time.
   (2)   If an order under subsection (1) is not given orally by the court to the person to whom the order is addressed, the proper officer of the court must cause a copy of the order to be served on the person in the prescribed manner.
   (3)   A person who contravenes an order under subsection (1) is guilty of an offence punishable on conviction by imprisonment for a period not exceeding 12 months.
   (4)   Strict liability applies to the element of an offence against subsection (3) that an order is an order under subsection (1).

162A  Obtaining information in relation to residents of reciprocating jurisdictions
   (1)   If the Registrar does not possess sufficient information and documents to determine the overseas income of a person who is or was a resident of a reciprocating jurisdiction, the Registrar may, by written notice, request the person or an overseas authority of the reciprocating jurisdiction to give to the Registrar such information, or to produce to the Registrar such documents, as are necessary to enable the Registrar to determine the persons overseas income.
   (2)   The Registrar may, by written notice given:
        (a)   to a person:
             (i)   to or by whom child support is payable; and
             (ii)   who is or was a resident of a reciprocating jurisdiction; or
        (b)   to an overseas authority of the reciprocating jurisdiction;
request the person or authority to notify the Registrar, within 60 days and in the manner specified in the notice, if:
        ©   an event or change of circumstances specified in the notice happens; or
        (d)   the person or authority becomes aware that an event or change of circumstances specified in the notice is likely to happen.
   (3)   An event or change of circumstances must not be specified in a notice under subsection (2) unless the happening of the event or change of circumstances might affect the payment of child support or the rate at which it is payable.
   (4)   The Registrar may, where it is reasonably necessary for the purposes of this Act, by written notice, request a person who is or was a resident of a reciprocating jurisdiction, or an overseas authority of the reciprocating jurisdiction:
        (a)   to give to the Registrar, within a reasonable period, and in a reasonable manner, specified in the notice, such information as the Registrar requests; and
        (b)   to attend before the Registrar, or before an officer authorised by the Registrar for the purpose, at a reasonable time and place specified in the notice, and then and there to answer questions; and
        ©   to produce to the Registrar, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.
   (5)   For the purposes of paragraph (4)(a), the reasonable period that is specified in the notice cannot be less than 28 days.

162B  Regulations may prescribe manner of giving notices or other communications
      The regulations may provide for how a notice or other communication may be given to a person who is a resident of a reciprocating jurisdiction.

Note that section 6.2.4 of the guide considers the information gather powers under the Child Support Registration and Collections Act (Sections 120 and 121A).




Once you are "under notice" you technically are required to comply or could face prosecution, which may include a criminal penalty.  However, the issue of such broad ranging notices that are at odds with the administrative practices of CSA or other parts of their legislation suggest there is some degree of absurdity involved.  For example, technically you need to declare an annual pay rise, but for most folk CSA will do nothing with the report relying on the information in the following  tax return.  One could be pedantic and fight the point, but in the broader scheme of CSA malfeasance is it worth the argument.  
I agree BigRed - I was given a notice to produce information a few years back and did nothing and nothing happened. I do remember talking to C$A over the phone about it asking them if they would pay my accountant to work out a new taxable income estimate every time there was a change like an incremental pay increase, had to incur more work travel or deductions etc…. Of course they were not interested.

I think over the last 5 years we have seen the alignment of C$A income assessment to the same processes Family Assistance uses. Imagine if FAO started treating recipients the same way as C$A does to determine benefits.
Mike whilst you have pointed out what C$A can do I think C$A have become very toothless in using this legislation and one day redundant legislation like this will disappear.
Fairgo said
I agree BigRed - I was given a notice to produce information a few years back and did nothing and nothing happened. I do remember talking to C$A over the phone about it asking them if they would pay my accountant to work out a new taxable income estimate every time there was a change like an incremental pay increase, had to incur more work travel or deductions etc…. Of course they were not interested. …..
Thanks for raising this point relating to accounting costs Fairgo. It is a major issue that is not considered or acknowledged by the CSA when any information is required. Often the costs incurred by a Payer are far in excess of the variation assessed through a COA. We are looking at a range of COA changes currently and one of the options we are considering is ensuring a COA cannot proceed unless there is a certain percentage change. Some of the COA applications that have come across our table are absurd where a change of less than one thousand dollars has been effected and it has cost ten thousand dollars in accounting and lost earnings costs.

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
 
but see s 65
Thanks everyone for your feedback.

Had a CoA conference. Explained the point  I am making as far as legal obligation to notify. The SCO told me that he is given powers to depart from whatever legislation says. If I am not happy I have right to object to the decision. Unsuccessful… :(  and still not happy, SSAT and then Court could help me to find a piece of mind. - otherwise  - keep on smiling.

Looking for a Fair Deal? Keep looking somewhere else.
Did you ask him to tell you to give it  to you in writing that he  has special powers to depart from legislation (aka he is above the law).

I am certain there would be a Tv current affairs show out there who would run with that and no doubt the australian public and parliamentarians should sit up and take notice  and ensure no public servant is above the law ever.

That certainly puts in perspective why so many CSA decisions go against liable parents.

How in the hell can liable parents in any way shape or form go about there daily lives If CSA is above the law.

What is the point of legislation if Senior Case Officers have special powers to depart from legislation.

What if a senior officer in the Tax department had those powers and decided you or I now had  a Liability of millions of dollars instead of a refund owing?

What if prosecutors had special powers to bring charges against innocents.

The Mind boggles at the thought.

It does certainly however make me understand that as far as CSA is concerned I am just a wallet until my kids are 25.

25 is the age where childrens centrelink benefits are no longer diminished due to parental income so I am assuming this is the line in the sand if kids go to Uni straight after school.

I would strongly suggest going to your local parliamentarian and the shadow minister Kevin Andrews if i'm correct with this information.

Thats just my thoughts

You can fool some of the people some of the time but you cant fool all of the people all of  the time unless they work for CSA and youre a Payee:)
FairDeal - Just wondering if one of the Ombudsman's recommendations had been implemented as yet i.e. the recording of all COA interviews. Ask if the COA was recorded - if yes, then put in a formal complaint.
Even if there is no recording - still put in a complaint - but don't be suprised if there is a sudden denial by the SCO (some of them do tell fibs) - even the more reason to appeal if unhappy.
valere said
FairDeal - Just wondering if one of the Ombudsman's recommendations had been implemented as yet i.e. the recording of all COA interviews.
Will you please point to the reference of the Ombudsman's recommendations.

 
valere said
Even if there is no recording - still put in a complaint - but don't be suprised if there is a sudden denial by the SCO (some of them do tell fibs) - even the more reason to appeal if unhappy.
  Following your advice lodged the complaint.  Will keep you posted on the results.

Thank you all.
I am madly trying to find the source of information and will keep trying, but I think that in the mad Christmas season with a few drinks, it may be the SSAT prehearing conference that is to be recorded… I will advise.

But of interest is the Ombudsman's investigation of how CSA treats fraud allegations - pretty damming on the Agency, 'Commonwealth OmbudsmanCSA and DHS: Responding to allegations of Customer Fraud REPORT NO. 12|2008'.  Check out  http://www.ombudsman.gov.au/files/investigation_2008_12.pdf
valere - thanks for that link - I had a read of it and can only comment that they are really taking the "bite out of their bark" by not effectively dealing with fraud allegations. It's C$A's own fault for their negative public image.
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