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Hi All,

We are a blended family currently at our wits end dealing with the CSA. I have a 4 year old son from a previous relationship, my husband and I have one biological child who is 2 and a half. My husband has two children from a previous marriage (divorced now for 5 years) who he pays child support for each week without fail. During the time of the divorce my husband managed to rack up a $8,000 debt with the CSA. We now as a family have to pay this back to his ex wife, I understand this. I work on a casual basis and my husband works full time. The CSA has now asked for my income so it can be included in thier assessment of a reasonable amount to pay off the debt each week.

As my first son is classified as a "non relevant child" in my husbands child suppport case (as he is a step child) I find it bewildering how my income as a step parent has anything to do with a debt to her when I didnt even know of my husband when this debt was being created. Can anyone help with this? We called the CSa yesterday and tried explaining our side of the story but they kept reinterating that they had to take into account the entire income for the household when they were making the calculations. When they were asked why then my husbands ex wifes new partners income cant be taken into account they just went quiet. I then told the CSA that I wouldnt advise them of my income from now on to which they replied they will just get the info from the ATO.

My husbands ex wife has also since had another 3 children in as many years with her new husband meaning that she will be out of work for a while yet. Her income was $0 for the last financial year. She has 100% care and we have 0%. Since she is on a $0 income does that affect the percentage of child support my husband is made to pay each week?

We wrote to our local MP and our concerns have been passed on to several levels of Govt. It now rests in the hands of the Commonwealth Attorney General so we are really hoping that we will get through this time, although I still dont think anything will change.

Any thoughts or ideas on this situation would be greatly appreciated.
Considering the following from a report from the Office of the Privacy Commisioner :-

Privacy Act
The Privacy Act 1988 gives effect to Article 17 of the International Covenant
on Civil and Political Rights and to the OECDs Guidelines on the Protection of
Privacy and Transborder Flows of Personal Data. The guidelines set out the
way personal information about individuals should be collected, stored, used
and disclosed. They also set out mechanisms by which individuals can gain
access to, and have amended, information about them held by others.

The Privacy Act protects personal information under four sets of requirements:

 The Information Privacy Principles (IPPs) set out strict safeguards for
any personal information that is handled by Australian Government and
The Operation of the Privacy Act Annual Report  1 July 2003  30 June 2004
2005 84 Office of the Federal Privacy Commissioner
ACT Government agencies. These rules cover the collection, storage,
use and disclosure of this information. They also provide for individual
access to and correction of their own personal information.

 Individuals Tax File Numbers (TFNs): the Act prevents TFNs from
being used as a national identification system and gives individuals the
right to withhold this information
. Where a TFN is provided, its use is
limited to tax -related, assistance agency and superannuation
purposes. Under the Act, the Privacy Commissioner issues and
enforces legally binding guidelines.

 Part IIIA of the Privacy Act places strict safeguards on the handling of
individuals consumer credit information by the credit industry. These
provisions recognise the sensitivity of credit worthiness information and
the implications for individuals should it be mishandled. Strict penalties
apply where these provisions are knowingly breached.

 The National Privacy Principles (NPPs) regulate the way private sector
organisations handle personal information unless replaced by a code
approved by the Commissioner under s.18BB of the Privacy Act. These
principles cover the collection, storage, use and disclosure, and access
obligations of organisations.

Thus if the CSA have said what they have then they are threatening to willingly and knowingly breach privacy by using your TFN without the required consent. I would advise that you make a formal complaint to the CSA, to the Ombudsman and to the Privacy Commissioner and also ensure that the other people who you have spoken to are also informed of this extremely serious act which also includes that individual acting in contravention of the APS (Australian Public Service) guidelines.

If the CSA do act and ignore the privacy breach, then you should object to the decision or decisions and either take the matter to court or to SSAT (Social Security Appeals Tribunal). You may also wish to attempt to seek compensation.

I would suggest that if you take the matter to court that you consider attempting to join the SRL-Resource (Click on Community at the top and then on SRL-Resource to the left).

With regard to your actual situation it has to be split into two sections the arrears and the assessment. As far as I can see there is nothing that allows the CSA to collect any arrears from yourself as a collection from a third party requires the money to be owed to the payer. Thus I believe that you are being told that they are going to do a change of assessment, the CSA are very limited in that they can only initiate a change of assessment (registrar initiated change of assessment or RICA) for a reason 8 and then they must be able to say that they are satisfied that the current assessment is unfair because of a parent's income, earning capacity, property or financial resources. Is this what they have said?

I suspect that you have perhaps encountered someone from collections (i.e. trying to collect the arrears) who is acting outside of the legislation in order to meet their collection targets. Did you get the reference number they give you (not that you should need it, as the screen notes could identify when the event happened and this could then be used to obtain the voice recording).
Thanks for your help Mike T,

It sounds like we have grounds to put in complaints to the Privacy Commisioner the Ombudsman and the CSA. Thats a great start. It was actually my husbands case officer who suggested she can get my information from the ATO so she has obviously overstepped the line. At least we now know what we can do to try and rectify the situation so thank you again.



As far as the change of assessment goes I dont understand how much more we could be expected to pay off the debt as we are flat strapped paying what we do each week as it is. We are renting so we dont actually own any property(except furnishings etc) and we were knocked back by the bank when we attempted to get a loan to pay the CSA debt off in full as our earnings didnt meet the lending criteria. We were even going to sell our family car to pay her the money back but as it is under finance we are unable to do it. When our boys are school age I will be able to work full time again which will hopefully make it easier.

It is frustrating to hear that my husbands ex willl be out of work for some time due to her having 3 more children since their divorce, they are also somehow managing to build a massive brand new house by the beach so are by all accounts much better off than us. Of course, none of this can be taken into account in the CSA assessment.

Will call the CSA again today and make the complaint, get the ball rolling and see what happens from there….
At a Loss,
            I need to aplogise. I didn't actually answer all of your questions, got sidetracked with the reply that I gave.

You asked "My husbands ex wife has also since had another 3 children in as many years with her new husband meaning that she will be out of work for a while yet. Her income was $0 for the last financial year. She has 100% care and we have 0%. Since she is on a $0 income does that affect the percentage of child support my husband is made to pay each week?"

Basically the cost of relevant dependant children is worked out using the same method as for CS children, the main difference being that the cost of such children are determined using only the one parent's income. This income is applied, to a cost of children table and is done in a similar way to how tax is determined (e.g. tax brackets). If the income is 0, then there is no cost of the child or children. So as the other parent has no income then there is no cost. You may wish to check out the calculators that are available from the home page.

You asked As my first son is classified as a "non relevant child" in my husbands child suppport case (as he is a step child) I find it bewildering how my income as a step parent has anything to do with a debt to her when I didnt even know of my husband when this debt was being created. Can anyone help with this? We called the CSa yesterday and tried explaining our side of the story but they kept reinterating that they had to take into account the entire income for the household when they were making the calculations.

Unless they are doing a departure from the formula (change of assessment), then they must not take into account your income. However I would suggest that you ask them under what part of the legislation states that this is the case. Formula assessment and or collections is specifically related to the parent being assessed and or in arrears. You may wish to inform them that the section of the guide that says this would be an acceptable alternative as this points to the legislation.

With regards to your situation, in theory any decision made by the CSA result in section 4 of the legislation being considered. Section 4 is the object of the legislation and says that parent's should provide the proper financial support. However the CSA, has a tendency to misinterpret this as being that a parent should provide financial support. I believe that your case officer should perhaps be recommending that you perhaps be considered under a reason 9 change of assessment (the duty to maintain any other child or another person) and also perhaps a reason 10 (responsibility of the parent to maintain a resident child) change of assessment. However as this may result in a just reduction in CS, the CSA appears to fight against the application of such legislation, very likely because it reduces the amount collected or transferred and therefore would not result in a reportable reduction of FTB paid.

I'm not sure of your situation but there is perhaps a remote possibility that a reason 7 ( necessary commitments of self-support) change of assessment could be considered.

I'd suggest having a read of the CSA guide in relation to reason 7, 9 and 10. Here they are :-


Reason 7 - necessary commitments of self-support said
2.6.13: Reason 7 - necessary commitments of self-support

Version 2.1, Last updated 28 November 2008 5:00pm
Information in this version of The Guide applies from 1 July 2008
Refer to the previous Scheme Guide for information until 30 June 2008

Context

A parent can apply for a change of assessment in special circumstances if their necessary expenses significantly affect their capacity to support the child.

Legislative references

Sections 4(2)(a) and 117(2)(a)(iii)(A) Child Support (Assessment) Act 1989

Explanation

There can be a reason to change an assessment if there are special circumstances because the capacity of either parent to provide financial support for their child is significantly reduced because of their commitments which are necessary to enable them to support themselves (section 117(2)(a)(iii)(A)).

Parents can make an application to change the child support assessment if they can show that their capacity to provide child support is significantly affected by the cost of supporting themselves.

There are 3 criteria that must be established before CSA can be satisfied that an assessment should be changed for this reason:

    * Are there special circumstances of the case?
    * Are the commitments necessary and reasonable to enable the parent to support themselves?
    * Do the commitments significantly affect the parent's ability to meet the assessment?

What are 'special circumstances' under this reason?

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).

One of the objects of the Assessment Act is that the level of financial support provided by parents for their children should be determined according to their capacity to provide financial support, and, in particular, that parents with like capacity should provide like amounts of support (section 4(2)(a)).

A parent must show that there is something special or unusual about their case. The mere fact that a payee's or a payer's expenses exceed their income is unlikely to amount to a special circumstance.

The desire for expenditure on hobbies, entertainment, and holidays does not amount to a special circumstance.

The effect of a property settlement or agreement

An order or agreement relating to a property settlement which requires one parent to assume liability for a debt is unlikely to amount to a special circumstance. However, the responsibility of one parent for debts pending property settlement may amount to a special circumstance.

Where property settlement has not been made, CSA will consider:

    * who exercises control of the relevant assets e.g. it is less likely to be fair to change the assessment where the parent retains control of the asset.
    * whether a property settlement is likely to occur within a short period. If so, it may be appropriate to change the rate of child support for a short time pending property settlement and/or disposal of the asset.

What are necessary commitments for self-support?

A parent must have necessary commitments or expenses for self-support for the reason to be established. CSA must:

    * examine the nature of the expenditure to decide whether it is a 'necessary commitment' by looking at the kind of expenditure and the reasons for the expenditure; and
    * decide if the amount of the expenditure is 'necessary'.

The use of the word 'necessary' is not intended to produce an unrealistically low standard of living for parents (Gyselman and Gyselman (1992) FLC 92-279). In that case the court went on to make the following comments:

Where families separate, it is likely that in a number of cases that there will be insufficient income to support the two households at their prior standard or at a reasonable standard. Consequently, it is a matter of the balancing of competing values, namely the obligation of the absent parent to continue to support his children with, on the other hand, the need for the parent to continue to maintain himself at a reasonable level. It is clear from the objects of the Assessment Act that there is an intention to reverse what was seen to be the undesirable lack of emphasis upon the former of those commitments in the past, but it was not intended to completely reverse that situation. It is a question of reasonable balance in the individual case.

Expenditure which may be considered necessary includes:

    * reasonable costs of food;
    * reasonable costs of accommodation;
    * household essentials;
    * clothing; and
    * necessary transport.

It should be noted that expenses incurred to enable a parent to spend time with, or communicate with, the child are not included under this reason. Where those costs are necessary to enable contact with the child, they can form the basis of an application under reason 1.

All expenses should be substantiated with appropriate documentary evidence. In some cases the necessity of the cost will depend on the facts of the case e.g. a person can provide evidence from their treating doctor to show that certain expenses are necessary because they suffer from a medical condition.

The costs of setting up a household or servicing a debt immediately after separation may also be a necessary commitment. A parent leaving a former marital home will often incur costs in establishing a new residence or obtaining new accommodation. There may also be a variety of debts and obligations incurred during the former relationship which must be paid in spite of separation, and which continue to be paid by a parent.

These costs are considered necessary subject to:

    * proof of the expense and that it is being paid;
    * the necessity of the expense;
    * the expense being reasonable (e.g. no more than the minimum payment required if a periodic payment);
    * the possibility of rearranging the commitment by refinancing, reducing payment, sale of the asset etc.;
    * the period over which the expense will be incurred.

Since 1 July 2008 changes to the Child Support Scheme have enabled parents earning extra money after separation to request that this extra income not be included in the calculation of their child support assessment. This assists parents with post-separation costs for a period of up to three years. This provision does not fall within the change of assessment process and the parents adjusted taxable income can only be reduced by 30%. If a post-separation costs reduction has already been made, this will be relevant when deciding whether Reason 7 has been established.

Payments such as contributions to compulsory superannuation or trade unions will generally be accepted as necessary. Voluntary contributions to superannuation may not be necessary unless the applicant can establish that they are in an occupation where retirement takes place comparatively early and where compulsory contributions would be insufficient to provide a reasonable retirement income. Where the applicant is self employed and not entitled to employer contributions under the superannuation levy it may be appropriate to allow superannuation payments at the rate of the levy applicable to the income.

Private health insurance contributions will not generally be considered necessary. However, the expense may be taken into account where the parent would have to pay a higher Medicare levy if they did not have private health insurance. Private health insurance may also be necessary if a parent has a medical condition.

Not every kind of contractual obligation will be 'necessary' (see below). The onus is on a parent to rearrange their affairs to financially support their child.

The Family Court has held that the proper approach is to take into account unavoidable or compulsory expenses (such as taxation, Medicare levy and compulsory superannuation) together with necessary living expenses (Mee and Ferguson (1986) FLC 91-716).

In all cases the test is:

    * is the expense necessary for a reasonable standard of living, and
    * is the expense unavoidable or compulsory.

'Reasonable' costs and expenses

There are no definitive rules to help decide if expenses are reasonable. Each case must be considered on its individual circumstances. What is reasonable in one case may be an excessive expenditure in other circumstances. However, a parent will need to show that:

    * reasonable measures have been taken to reduce expenditure;
    * items related to setting up a new household relate to basic furniture and whitegoods rather than to optional items such as a plasma TV;
    * the cost of the necessary item, such as a motor vehicle or accommodation, is what is required to meet the need rather than extravagant or luxurious expenditure; and
    * where the cost of the expenditure is tax deductible, this has been taken into account.

Contractual commitments may not be necessary

A commitment that must be paid such as a mortgage, credit card repayment or personal loan will not automatically be considered to be necessary.

Examples

Where a parent, knowing of their child support obligation, enters into a finance arrangement for cable television or a mobile telephone it would not be considered to be either necessary or a special circumstance.

A parent's commitment to a mortgage to buy a house is not necessary if it affects their ability to meet a previously attainable child support obligation.

A commitment related to acquiring an asset or a financial resource (e.g. real property, shares or an insurance policy) for the future will not be 'necessary' (Dwyer and McGuire (1993) FLC 92-420, Bassingthwaite and Leane (1993) FLC 92-410). Child support is intended to assist a payee to meet the recurring, day-to-day and often pressing expenses of maintaining a child. A child is not required to live in poverty now in the hope of a future expectation.

Are the costs of self-support significant?

Once a parent has established that there are special circumstances and that the expenses are reasonable and necessary, the third element is to consider if they significantly reduce the parent's ability to provide financial support.

CSA will compare the expenses with the available income (and any other benefits or relevant financial resources). Where a parent's necessary living expenses significantly exceed the funds available to them their capacity to provide financial support is likely to be significantly affected, and the reason will be established.

What period should a decision to change an assessment cover?

In most cases, short-term adjustments to the self-support amount or the annual rate of child support will be appropriate to enable a parent to refinance debts, reorganise their financial affairs, or dispose of assets.

Examples

A parent who has a complex salary package involving fringe benefits prior to separation may require time to reorganise their affairs following separation.

The costs necessarily incurred by a recently separated parent in establishing a new home are unlikely to be a long term consideration.


Reason 9 - the duty to maintain any other child or another person said
2.6.15: Reason 9 - the duty to maintain any other child or another person

Version 2.3, Last updated 14 October 2009 3:00pm
Information in this version of The Guide applies from 1 July 2008
Refer to the previous Scheme Guide for information until 30 June 2008

Context

A parent can apply for a change of assessment in special circumstances if his or her capacity to support the child is significantly reduced by their legal duty to maintain another person.

Legislative references

Sections 5, 98C, 98E, 117(2)(a) and 151B Child Support (Assessment) Act 1989

Sections 4, 4AA, 66L, 67B, 67C 72, 75, 90SB, 90SE and 90SF Family Law Act 1975

Sections 5, 135, 136, 205ZC and 205ZD Family Court Act 1997 (WA)

Explanation

There can be a reason for changing an assessment if, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

    * the commitments of the parent necessary to enable the parent to support another person that the parent has a duty to maintain; or
    * the special needs of another person that the parent has a duty to maintain; or
    * the high costs involved in enabling a parent to spend time with, or communicate with, another person that the parent has a duty to maintain (section 117(2)(a)).

The three threshold requirements are:

   1. there are 'special circumstances';
   2. the applicant has a duty to maintain another person; and
   3. that duty significantly reduces the applicant's ability to provide financial support for the child.

Special circumstances

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).

Duty to maintain

The words 'duty to maintain' are limited to a legal duty and do not include what is only a moral obligation to maintain another person (Vick and Hartcher (1991) FLC 92-262).

The principles established in Vick and Hartcher were later adopted in Dwyer v McGuire (1993) FLC 92-420 where it was found that a husband had no legal duty to support his elderly parents and sister.

Examples

A person may have a legal duty to maintain another person if:

    * they are supporting their husband or wife in accordance with section 72 of the Family Law Act;
    * they are supporting a de-facto partner in accordance with section 90SF of the Family Law Act or section 205ZC of the Family Court Act 1997 (WA);
    * they are paying spousal maintenance to a former husband or wife in accordance with an order made under the Family Law Act, or by a foreign court;
    * they are paying maintenance to a former de-facto partner in accordance with an order made under the Family Law Act or the Family Court Act 1997 (WA), or by a foreign court;
    * the person is male and is supporting the mother of his child (to whom he is not married, nor in a de facto relationship) for the childbirth maintenance period;
    * they are supporting a child (including a step-child) who is a relevant dependent child;
    * they are supporting an adult child in accordance with section 66L of the Family Law Act;
    * they are paying child maintenance for a child (including a step-child) in accordance with a court order made under the Family Law Act, or by a foreign court (i.e. not an administrative assessment of child support);
    * they have an obligation to support a child under State legislation (for example an order for child maintenance made under the Family Court Act 1997 (WA)); or
    * the Family Court has made consent orders recognising Kupai Omasker (the Torres Strait Islander traditional practice of adoption).

A person does not have a legal duty to support a person for whom they have provided an 'assurance of support' as a condition of that other person's migration to Australia. An assurance of support is the assuror's undertaking to repay the Commonwealth for certain entitlements that the assuree may claim while in Australia. It does not create a legally enforceable duty for the assuror to support the assuree.

Step Children

Generally, parents do not have a duty to support a step-child without a court order imposing such a duty. From 1 July 2008, a new change of assessment reason commenced (reason 10). This reason enables either parent to seek a change to the assessment because their capacity to provide support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child (section 117(2)(aa)).

Reason 10 may apply in circumstances where a parent has a second family that includes a step-child and the financial support of the step-child rests with the parent even though there is not a 'legal' duty to support the step-child. Reason 10 covers situations where the biological parents cannot meet the costs of their child due to illness, death, or incapacity to earn an income due to caring responsibilities.

Children of the payer and payee

Reason 9 does not apply in relation to the children for whom child support is transferable between the payer and payee (i.e., the children for whom the payer must pay child support to the payee). If the children have a special need, reason 2 may be relevant.

Reason 9 may apply if the parent has a duty to maintain a child other than the child support children.

Parent's relevant dependent children

The administrative child support formula already takes into account a parent's responsibility to support their relevant dependent children (i.e. the parent's children by birth or adoption) by deducting a relevant dependent child amount from the parent's income before calculating child support. A duty to maintain a relevant dependent child will not be a special circumstance that would warrant a change to the assessment, unless the child also has a special need.

Spouse or partner

A person may have a legal duty to maintain a spouse or de-facto partner if the spouse or partner is unable to adequately support themselves by reason of:

    * having the care and control of a child of the marriage or de-facto relationship who is under 18;
    * their age, physical or mental incapacity to obtain employment;
    * or any other adequate reason.

Until 1 March 2009 the duty was limited to a married spouse and did not include a de facto partner (section 72 Family Law Act). From 1 March 2009 changes to the Family Law Act established a duty to maintain a de-facto partner in the same circumstances (section 90SF Family Law Act).

A de facto partner is a party to a relationship between two persons who are not legally married to each other, are not related by family and who have a relationship as a couple living together on a genuine domestic basis (section 4AA Family Law Act).

This definition of de facto relationship includes relationships between two persons of different sexes and relationships between two persons of the same sex (section 4AA(5) Family Law Act).

The duty to maintain a de facto partner may exist if:

    * the relationship is of at least two years duration, or
    * there is a child of the relationship, or
    * the person being supported made significant contributions to the relationship, or
    * the relationship is or was registered under a prescribed law of a State or Territory (section 90SB Family Law Act).

The Family Law Act also provides that a person is liable to support their spouse or de-facto partner only to the extent that they are reasonably able to do so, taking into account the matters listed in section 75(2) or 90SF(3) of the Family Law Act, or section 205ZD of the Family Court Act 1997 (WA).

Example

F is liable to pay child support to M for their child B. F has remarried. Her husband O is unable to work. There are no children of F and O's marriage. F may have a legal duty to maintain O, depending upon the reasons for O's inability to work.

As noted above, the administrative child support formula already takes into account a parent's responsibility to support their relevant dependent children by deducting an amount from the parent's income before calculating their child support (See Chapter 2.4.7). The formula does not take into account a parent's responsibility to support a dependant spouse. However, the fact that a parent's spouse is staying home to care for the children of the marriage does not, of itself, meet the reason 9 test. Nor is it sufficient that the parent's income does not meet the needs of the household, as a result of the spouse's unemployment (or underemployment). The applicant must also be able to show that there are 'special circumstances' in their case.

Examples

M and F have a child support case for their child A. M has remarried. He and his new wife N have a disabled child, C. N is unable to return to the workforce because C's disability prevents C attending school or using childcare. C's disability is a special circumstance and M has a legal duty to maintain N, as well as a legal duty to maintain C. M's legal duty to maintain N and C significantly affects his capacity to provide financial support for A.

F and M have a child support case for their child A. F is married to H who has a child S. S's other parent is deceased. H is not employed and has no personal income. H provides full-time care at home for S, who has special needs. F has no legal duty to maintain S, as S is not F's child. However, F does have a legal duty to maintain H.

Where a person applies under this reason because their spouse or child has a medical condition, or requires medical treatment, CSA will require them to provide appropriate medical evidence of that condition.

Note: The South Australian Parliament has not referred its powers regarding de facto couples to the Commonwealth, therefore the de facto provisions in the Family Law Act do not apply in South Australia. A person in South Australia will generally be unable to establish that they have a duty to maintain a de facto partner under this reason.

Mother of the child/child birth maintenance period (where the parents are not married nor in a de facto relationship)

The father of an unborn child may be liable to pay maintenance to the mother, and reasonable medical expenses in relation to the birth, in most cases for a period of 2 months prior to the birth and 3 months after the birth (sections 4 and 67B Family Law Act, or sections 5 and 135 of the Family Court Act 1997 (WA)). Section 67C of the Family Law Act sets out the matters that are to be considered in determining the contributions the father is liable to make (or section 136 of the Family Court Act 1997 (WA)).

Where a person applies under this reason because they have a legal duty to support the mother of their unborn child, CSA will require them to provide appropriate medical evidence of the pregnancy and the expected date of confinement. CSA will also require information about the mother's financial circumstances (see section 67C of the Family Law Act and section 136 of the Family Court Act 1997 (WA)).

Adult children

A parent does not automatically have a legal duty to maintain a child over 18 years of age.

A child support assessment for a child ends if the child turns 18 years of age unless the payee applies for an extension of child support to the end of that school year when the child is still a full-time secondary student (section 151B). An extension can be made without a change of assessment.

A court can make an order for the maintenance of an adult child if it can be established that maintenance is necessary to enable the child to complete their education or because of a mental or physical incapacity (section 66L Family Law Act). A parent must be able to show that they have a legal duty to maintain an adult child before an assessment can be changed. If CSA is satisfied that the child meets the criteria set out in section 66L a reason can be established even if an order has not been made (Bienke v Bienke-Robson (1997) FLC 92-786).

CSA may recommend that an application be made to a court having jurisdiction under the Assessment Act (section 98E) in cases where it is too complicated to determine whether the 'adult' child is continuing education or whether they have a mental or physical incapacity. However, in most cases, CSA will be able to make a finding on the basis of evidence supplied by the applicant and respondent.

When deciding if a parent has a legal duty to maintain another child over 18 years who is proposing to undertake tertiary education, CSA may consider (Cosgrove v Cosgrove (1996) FLC 92-700):

    * whether the child's dependence upon its parents had ceased and the application amounts to a reinstatement of that dependence;
    * the period between the initial cessation of dependence (if any) and the application;
    * whether the child had completed the course of education intended by the parents to outfit them for employment sufficient to support the child;
    * other assistance, benefits or education which the child has received;
    * the ability of the child to complete the course in question;
    * the likelihood of the child completing the course in question;
    * the financial capacity of the child to maintain himself or herself to the completion of the education;
    * the financial circumstances of those responsible for the support of the child (generally the parents); and
    * the filial relationship between the child and the person from whom maintenance is sought.

Kupai Omasker

A legal duty to maintain a child will be established where the Family Court has issued consent orders that recognise Kupai Omasker, the Torres Strait Islander traditional practice of adoption.

Special needs

The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child, or the other person, relate to a condition or disability that is out of the ordinary. This can be because of a physical, mental or learning disability or because of a special talent or ability (Lightfoot v Hampson (1996) FLC 92-663).

Examples

A child's learning disability.

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 or mental disability.

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).

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 parent making the application to provide evidence of the net expenditure associated with the special need.

This reason does not apply in relation to the special needs of a child for whom child support is payable (who would be covered by reason 2).

Costs of enabling a parent to spend time with, or communicate with, a child or person

If a parent has high costs in enabling them to spend time with, or communicate with, a child or person they have a legal duty to maintain (other than the child support child), this may also be a reason for a change of assessment. The principles that apply to calculating costs to spend time with, or communicate with, a child or person under reason 9 are the same as those applying to reason 1.



Reason 10 - responsibility of the parent to maintain a resident child said
2.6.16: Reason 10  responsibility of the parent to maintain a resident child

Version 2.2, Last updated 13 October 2008 5:00pm
Information in this version of The Guide applies from 1 July 2008
Refer to the previous Scheme Guide for information until 30 June 2008

Context

Either child support parent can apply for a change of assessment in special circumstances if his or her capacity to provide financial support for the child(ren) of the assessment is significantly reduced because of the responsibility of the child support parent to maintain a 'resident child'.

NOTE: Prior to 1 July 2008, reason 10 applied in cases where the child support assessment was unfair because the paying parent earned additional income for the benefit of a resident child. As of 1 July 2008, parents can request that extra income earned post separation be exempt from their child support assessment, without a change of assessment application (see Chapter 2.5.2)

Legislative references

Sections 98C, 98S, 117(2)(aa), 117(4) to 117(10) Child Support (Assessment) Act 1989

Terminology

In this section the term Child support parent refers to the parent who is a party to the relevant child support assessment. The term biological parent(s) refers to the biological parents of the resident child.

Explanation

There can be a reason for changing an assessment if the capacity of either child support parent to provide financial support for the child(ren) is significantly reduced because he or she has a responsibility to maintain a resident child.

The three threshold requirements are:

1. There are 'special circumstances';

2. The child support parent has the responsibility to maintain a 'resident child'; and

3. the responsibility significantly affects the child support parent's ability to provide financial support for the child of the child support assessment.

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).

The Assessment Act defines 'resident child ' at section 117(10).

A 'resident child' of a child support parent is a child who:

    * normally lives with the child support parent, but is not a child of the child support parent; and
    * the child support parent is, or was, for two continuous years, a member of a couple; and
    * the other member of the couple is, or was, a biological parent of the child; and
    * the child is aged under 18; and
    * the child is not a member of a couple; and
    * one or more of the following applies in respect of each biological parent of the child:
          o the biological parent has died;
          o the biological parent is unable to support the child due to the ill-health of the biological parent;
          o the biological parent is unable to support the child due to the caring responsibilities of the biological parent; and

    * the resident child requires financial assistance

In circumstances where a parent has a 'legal duty' to support a child then an application should be made under Reason 9, Chapter 2.6.15.

Normally lives

The term 'normally lives with' is not defined in the Assessment Act. Generally a child will be considered to 'normally live with' a person if they live with the person for at least 35% of the time over a 12-month period. This does not exclude an extraordinary circumstance involving less than 35% care, for example, where a person is meeting the costs of a child at boarding school.

Member of a couple

The term 'member of a couple' is defined (section 5) as meaning:

    * a person legally married to another person and not living apart and separately from them on a permanent basis; or
    * a person living with another person of the opposite sex as their partner on a genuine domestic basis although not legally married.

The child support parent may need to provide evidence to CSA that they are or were a member of a couple.

A child support parent does not have to have a current partner to apply under this reason. The resident child can be a child of a former partner of the child support parent, if the child remained with the child support parent after they separated (section 117(10)(b)) or if the partner is deceased and the child remained with the child support parent (section 117(10)(f)(i)).

Unable to support the child

When the Registrar is considering if a biological parent is 'unable to support the child' because of 'ill health' or 'caring responsibilities', an ongoing income stream, although the most obvious way a parent has of supporting the child, is not the only avenue of support available. The Registrar must also consider if a biological parent has any other way of supporting the child i.e. savings, social security benefits, compensation, assets etc.

Note: if a biological parent is receiving a social security pension or benefit they would be considered able to support their child, even if this is only at the minimum annual rate. The only exception to this would be if the parent's circumstances would otherwise qualify them for a reduction under s66A.

Ill health of a biological parent

If a biological parent has health problems, this may mean that he or she is unable to support their child(ren).

CSA will take into account any evidence that the biological parent presents about his or her state of physical and mental heath. It would usually be expected that a biological parent's state of health will have been diagnosed by a qualified medical practitioner and they are being treated for the condition. Therefore, the biological parent would usually be able to provide medical certificates or reports from his or her treating doctor, and/or reports from any specialist to whom the parent was referred.

The following factors are relevant in considering whether a biological parent's state of health affects his or her ability to support their child(ren):

    * the biological parent's condition;
    * the expected duration of the condition;
    * any recommended treatment, and the impact that this has on the biological parent's ability to support the child(ren);
    * the availability of light duties, if the biological parent could work in a restricted capacity.

CSA will weigh up the evidence about these and any other relevant matters in order to decide whether it is satisfied that the biological parent's ill-health is such that they are unable to support their child(ren).

Caring responsibilities of a biological parent

The type of caring responsibilities that might justify a biological parent's inability to support their child(ren) will only be a personal responsibility to care for another person. Caring responsibilities include caring for their parent, elderly relatives or friends.

The following factors are relevant in considering whether a biological parent's caring responsibilities affects his or her ability to support their child(ren):

    * the relationship between the biological parent and the person being cared for;
    * whether the biological parent has a legal duty to maintain the person for whom he or she is providing care;
    * if the biological parent does not have a legal duty, whether they have a moral duty and the extent of that moral duty;
    * the degree and type of care provided;
    * whether the biological parent has some capacity for part time or casual work in conjunction with his or her caring responsibilities;
    * the availability of alternate care (personal and institutional);
    * whether that alternate care is suitable and/or affordable; and
    * the previous and proposed duration of the period of care.

CSA will weigh up the evidence about these and any other relevant matters in order to decide whether it is satisfied that the biological parent's caring responsibilities are such that they are unable to support their child(ren).

A biological parent who has been in the workforce may cease work, or reduce his or her work commitments to accommodate their caring responsibilities. Where this is a longstanding arrangement (e.g. one that existed prior to becoming a member of a couple for 2 continuous years with the child support parent) the biological parent's ability and opportunity to undertake paid employment is diminished by their caring responsibilities and their absence from the workforce.

If the biological parent's caring responsibilities would not prevent work, or additional work, CSA may consider that their caring responsibilities do not affect their ability to support their child(ren).

The resident child requires financial assistance

When deciding if 'the resident child requires financial assistance', generally, FTB should be disregarded. The Registrar will consider the costs of the child and these costs are calculated using the Cost of the Children table which already takes into account any FTB being paid for the support of the child.

Income and financial circumstances to be considered

As the legislation requires that the resident child must require financial assistance (section 117(10)(g)), an application under this reason will require CSA to consider the income and financial circumstances of the applicant and the other child support parent, as well as the circumstances of both biological parents of the resident child. If there are other sources of income that already adequately provide for a resident child, or could do so, it would not normally be just and equitable to assess the child support parent's resources as affected by the resident child's needs. A child support parent will not be considered as being required to meet the resident child's costs unless both biological parents are unable to do so due to death, or inability to earn income due to ill health or caring responsibilities.

CSA can consider the following in deciding if a change is fair:

    * the source and amount of any benefit paid to or in respect of the resident child (e.g. Centrelink payments);
    * whether child support is being paid for the resident child;
    * the cost of caring for the resident child;
    * the income and resources of the applicant's partner and the other biological parent of the resident child;
    * whether the assessment has already been adjusted to take the resident child into account:
    * whether any other adult who has a legal duty to maintain the resident child has a capacity to do so;
    * the total expenditure outlaid to maintain the applicant's household; and
    * any assets and other resources held by, or available to, all the members of the child support parent's household and both biological parents of the resident child.

Privacy considerations

To establish a case under this reason, a child support parent may be asked to provide financial information to CSA about a third party e.g. the child support parent may be asked to provide full child support details relating to the resident child. To provide this information to CSA, the child support parent requires the approval of any third parties to whom the financial information relates. The change of assessment application form includes a declaration that must be signed by the child support parent stating that they have obtained consent from third parties to use their information. CSA will not accept an application that contains details of a third party's financial circumstances unless the declaration is signed.

See Chapter 6.3 on Privacy, secrecy and POI for further information on privacy.

'Just and equitable' and 'otherwise proper' - the decisions that CSA can make

Once a child support parent has established a reason to change their assessment CSA must consider whether it would be fair or just and equitable in relation to the children of the child support assessment, both child support parents, the community and the resident child to make a particular decision (sections 98C(1)(b)(ii), 98C(3) and 117(4) to 117(9)).

CSA's decision will depend on the circumstances of the case and any other reasons being considered.

If this reason is established, the types of decisions that CSA can make are set out in Chapter 2.6.4 (section 98S).

When making a decision under this reason CSA will usually adjust the parent's self support amount to reflect their responsibility to maintain the resident child. CSA will set out the basis for determining this in the decision.
MikeT
At what stage, if any, can a person seek to apply subpoenas as a means of discovery in CSA matters?
Is it wrong to assume that matters before SSAT and Federal Magistrates are reviews, rather than an opportunity to adduce evidence?
Are there any discovery options available to a payee?

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Verdad,
           uhhm, you like to ask the difficult things. My guess is that SSAT can consider new evidence. In fact in a meeting just this week, the CSA representative appeared to blame the rate of decisions set aside, varied or not affirmed on new evidence being made available. Personally I do not consider this to be the case, rather that SSAT look at the evidence rather than cherry pick the evidence that suits.

As for FM's I'd have to ask an SRL :) as I've seen little if any (other than the one you sent me, which was really confusing and not run of mill stuff p.s. I forgot to thank you for passing that on) FM decisions in regard to CS decisions. About the only thing the old grey matter can recall at present is that it appears to be common that FM's/Judges will pass things back to the CSA, telling them to do their job properly.

Sorry, perhaps at some time I'll try to get the time to look into things like that more.  

:$
at a loss - Mike has provided some great info to help.

Only questions I have:

1) Do you receive child support from your ex?

2) How did the 8k debt accrue?
Hi Fairgo,

I closed my child support case as my ex was very abusive towards myself and our son. As he works in a cash based job and was still collecting govt benefits we were entitled to less than $12 per month in child suppport. It has been almost 4 years now since we have had absolutely no contact with him. At the time of the break up I let him know a PO Box and mobile phone number by which he could contact us but he has not bothered so I cancelled them.

As far as the debt goes my husband racked it up during the couple of years that he was on again/off again with his ex wife. As they were fighting amongst each other he was refusing to pay as she was refusing him access to his children. He left her the family car (financed under his name) during the time of the divorce to make it easier for her and the children to get around but of course she never kept up the repayments so he still has a year before that black mark comes of his credit file making it impossible for him to obtain a loan to pay it off. In hindsight it was a big mistake. The loan would have to go under my name if we were able to get one to pay off this CS debt, at this stage though we are not in the financial position to do so. It is quite embarrassing as it isnt a massive amount.

Even with me working on a casual basis and my husband working full time, we will have to wait until our boys are school age before our cash situation will improve (when I can work full time again)  When my husband was paying over $250 a week in CS about 2 years ago I had to work full time night shifts then come home and look after our baby boys getting around 2 hours of sleep every night just so we could get by. I am not willing to do that again to pay back the debt as it really took it out of me and was unfair to our children as I was walking around like a zombie the majority of the time.

Sorry, I am rambling on a bit in this post but just trying to let you know as much info as I can.

Thank You to everyone who has responded so far. Your thoughts and information are greatly appreciated.
Thanks for the info.

I don't think you will be able to use reason 10 in a change of assessment application as the father of your child is still around and could provide support if made to.

Maybe reason 9 will work as both of your children are under school age.

Depending on your husband's financial settlement with his ex and as you are suggesting that she is doing well now, you might be able to use reason 8  or this may support a reason 9 application.

As far as the debt goes I would not pay any of it. I would use the appeals process to file a departure order application through the FMC and get the debt reduced or removed. If the ex is building a new house and you are struggling with rent then I think your application would be successful.

verdad - I have seen C$A records subpoenaed in a FC trial. The SSAT, AAT and FMC all allow further sworn evidence to be submitted although the SSAT is more relaxed in this area. The SSAT generally follows the C$A guide in making its decisions unless the difference between the guide and legislation is clearly shown. The FMC and AAT has more discretionary powers with regards to fairness and the intention of the legislation.
Fairgo said
The SSAT generally follows the C$A guide in making its decisions unless the difference between the guide and legislation is clearly shown.

Naughty, naughty! They must follow the legislation NOT a general guide written for the CSA. The law is the law; a guide is just a guide - unless CCH et al have written it!

Monti

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
at a loss said
During the time of the divorce my husband managed to rack up a $8,000 debt with the CSA. We now as a family have to pay this back to his ex wife, I understand this. I work on a casual basis and my husband works full time. The CSA has now asked for my income so it can be included in thier assessment of a reasonable amount to pay off the debt each week.
 
from what you write it sounds like this has nothing to do with using your income to changing an assessment, so no need to go down the coa road with it (been there done that, would never willingly do that again)

instead it sounds like it all to do with repaying the debt that is there already.
Has your husband entered into a payment arrangement? and was it deemed an "acceptable" payment arrangement. If it was then there is no more that needs to be done.
However if circumstances have come up and he now cant sustain that payment arrangement he'll need to renegotiate (much like any debt if you need to drop your payments)

CSA has a form if you want to drop your debt repayments below what they think you can afford to pay off (much like banks have loan repayment calculators based on how much you earn I think csa has the same thing if you earn $x then you should be able to pay off $y to pay off your debt in z years.
If you believe you cant afford to pay it off at $x per week, then you'd need to propose a rate you can pay it off at and justify why $x is too much.

the form is here https://www.csa.gov.au/forms/AssetsAndLiabilities.aspx

it does ask if you have a spouse and if they work, but doesnt ask how much they earn.

the reason csa may pester you to provide a spouses income is if they think you are lying about how much your living expenses are and making it look like you dont have much money left every week to repay the csa debt.

that form looks pretty much like a standard bank loan form - adn the only time you'd even think about filling it in is if you want to pay off a debt at a smaller weekly amount than what their debt repayment calculator says you should be paying it off at, of if you have a current accepted payment arrangemnt but you get a case manager who thinks you can suddenly start paying more
Monti - You are 100% correct however the SSAT often justify using the C$A guide and quote the famous Drake case to back themselves up.

In the AAT case over care percentages and nights v's hours count (I'm sure you know the one I am referring to - it's on here) the member overturned the SSAT's decision and followed the law or the intention of the law and commented on the SSAT's use of the Drake case.
Thanks again to everyone who has given us information, it is greatly appreciated and we will continue to stand up for ourselves and our family. We have entered a payment arrangement which has been accepted so that is a start. My husbands case officer went berserk when he advised her that our application for a loan to pay off the debt didnt go through, she was quite upset and told us we would have to try again within three months. Our financial situation will not be changing within that time so I dont really know what she expects. We will be looking into getting a change of assessment possibly regarding the costs involved in contact with the children as well as other factors as they live in a different state.
at a loss,
             I don't believe that the CSA has any legislative backing to get angry nor I believe do they have any right to expect you to enter into a proposal that will increase your debt by taking out a loan to repay the debt. Rather the guide says "The CEIs authorise CSA to arrange for a debtor to pay a debt by instalments.". I cannot see anything that says that the CEI's authorise the CSA to put pressure on persons to take out a loan.

CEI's is "Chief Executive Instructions" from the Secretary of the Department of Family and Community Services (FaCS).

I believe that you have a right to make a complaint regarding this officer's actions by trying to put pressure on you to unnecessarily and artificially increase the overall debt by trying to make you take out a loan. I also suggest that you inform the CSO that you will not be looking to take out any loan in the future, that is unless they obtain a court order against you ordering you to take out a personal loan, again this is a matter that I believe you have every right to complain about. In fact if I recall correctly this issue, of the collections teams suggecting that loans be taken out, was raised at the State(NSW) stakeholders meeting earlier in the year.

Perhaps Secretary_SPCA can recall what was said. Perhaps this needs to be raised as an emerging issue with the National stakeholders engagement group.

Perhaps you could contact the CSO and ask them to assist you in preparing a waiver of the debt as per section 6.11.2 of the guide. :)
at a loss said
My husbands case officer went berserk when he advised her that our application for a loan to pay off the debt didnt go through, she was quite upset and told us we would have to try again within three months.
Quite interestingly, the easiest way I have found to stop them making demands that are unreasonable, is to ask them to put the demand in writing. They simply won't do it…

They also seem to quite agitated when you ask for things in writing, so be prepared for an earful. :P
"at a loss", of course the CSA can not do as reported simply because it is not allowed by the legislation

but it is imperative you must apply for an injunction s 98 of priv act

that allows you to completely get around the so called priv commissioner who is simply there to ALLOW CSA Telstra etc to abuse privacy

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