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My CSA nightmare.

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Hi this is my first post. I have been reading this forum for weeks and its the most helpful information I have found. Thank you in advance to anyone who replies.
My husband has paid child support for 14 years in a private arrangement. Last year he was concerned about the health of one of the children and asked questions. From that day he was told he isnt allowed to see the kids ever again. The next week the x had called csa and arranged formal collection and our problems with csa began. She claimed he had under paid her and they gave him a huge bill. We learned the hard way about private agreements. We have spent over $10,000 in legal fees getting to see the kids and it has meant we have seen one of the children but mostly she ignores court orders. I have decided court orers really dont mean anything. They havent helped us.  We have run out of money to fight. Just as the accounts are empty my husband has been made redundant at work. He is pretty down as he has never been unemployed. Now in the last 6 months csa have breached confidentiality and told us they send a letter written to us to the x by mistake, made many mistakes with the maths which we have pointed out, rung constantly even at 10 pm at night etc. even though we make the payments. The x always complains and whatever she says they seem to believe. So friday was his last day at work. He rang csa to notify them. He was grilled and told to ring back today (Monday). Now they have told him his x will get a letter. She has to "approve" of him being out of work! If she says he isnt out of work then she can object. er how would she know, what would she know and of course she will object! How/what does this mean? She will for sure say we are concealing money/cheating or lying or something judging by what she has said already and it isnt true. We have no money left in the bank thanks to trying to see the kids. My husband has no income. He will be trying like mad to get a new job and wrote letters all weekend. I am terrified they will want money we do not have. Can anyone please advise and explain how can the x object? We have done the right thing by her and the kids. The money has run out for now. My husband is so frazzled Im trying to help by gathering information. With many thanks.
That sounds terrible and we went through similar. My husband is able to see his children now but is soon loosing his job. They need to investigate his employment and will likely call his old employer. If they don't you will need to take it to the SSAt. Now in our case the ex quit work and CSA accepted it, therefore I would get really annoyed if they do not accept this for dh.
They will likely try to get you on earning capacity, if the ex lodges a COA Reason 8.

This link has some info on a Reason 8 COA and earning capacity, read it carefully as it tells you the factors they look it when making an earning capacity decision.
http://guide.csa.gov.au/part_2/2_6_14.php#purpose_decision_working

You should try and get a letter from your OH's employer stating that he was made redundant and also keep copies of all job applications, to prove that he is trying to obtain employment.

My OH was made redundant and at the same time devolved a medical condition preventing him from working in the same high paying position elsewhere. His ex lodged a COA reason 8. We won the COA decision based on the evidence we provided, however the ex is now taking it to SSAT.
Thank you sm10 and Frenzy now I know what to read up on next. I feel we are assumed guilty of something as if we are criminals. Another one who feels no wonder so many men cant take it anymore. Thanks again.
The next thing you need to do is to immediately start refusing to answer any questions when the CSA calls on the phone.

Advise them that you consider their calls to be harassment.
(This wording is important - get them to acknowledge that they understand that YOU consider their calls to be harassment)

Advise them that you require all future contact from the CSA to be in writing only.

Once you have advised them of this, any further calls from the CSA can be viewed as an offense of using a carriage service to harass - this is an offense under the CRIMINAL CODE ACT 1995.

CRIMINAL CODE ACT 1995 said
 474.17   Using a carriage service to menace, harass or cause offence


             (1)  A person is guilty of an offence if:

                     (a)  the person uses a carriage service; and


                     (b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty:  Imprisonment for 3 years.


You should lodge an official complaint EVERY TIME you receive a call from CSA after you request all contact in writing, stating that you beleive the CSA Officer has breached the CRIMINAL CODE ACT 474.17 (1)(a) as the CSA has been previously notified that you consider their calls to be harassment.

You should immediately lodge an official complaint about them sending the letter to the ex by mistake.

You should only use the phone for general enquiries and all information relating to your case should be sent to CSA via registered post.

As advised by Frenzy, get documentary proof of the redundancy and any attempts to seek employment and send copies to the CSA.

You can object to decisions made by the CSA in writing, using the word "Objection" in the title of the letter.

You should explain which decision you are objecting against and the reasons for the objection.

I would also suggest that all bank accounts in your Husband's name should be closed and he only keep money in joint accounts with you - this will prevent CSA from stealing money from him using a 72a Order.
Frenzy is right, be aware of this. We are lucky, cause ex did volunterily quit work and is now self employed and claims a rediculis wage. If she would ever do a coa on us, we counter claim the same.
Also should have mentioned that as your OH was made redundant, the CSA may try to claim that your OH would have been given a redundancy payout that he has not declared. They tried this tactic on my OH.

So if you, you get hit with a COA & your OH never got a payout make sure you provide his last few pay slips and a letter (if possible) from the previous employer stating that he was not given any lump sum payments on termination.
Seriously, seriously, you are a legend. You guys are giving me heaps, Im reading everything I can now and we are keeping a record of all jobs applied for on the weekend as there are many already. Plus my husband had stress leave over all this, he was so low, shaky all the time the Dr insisted he have leave. So Im thinking we should keep all this as it is relevant. His Dr. still thinks his stress levels are over the top and is concerned so this is another thing we should be documenting. I do not think he will go back to such long hours as he was doing, he has been doing 12 hours a day. I wonder what for now, none of his efforts to do the max have rewarded him at all, all his rights dont seem to exist!
You could always ask your doctor for a copy of his file. Just a thought.
I have had some dealings with the CSA in regards to redundancy. The CSA rules are some what nebulas in this area (probably intentional knowing them).

Do everything by letter or email, NEVER by phone - they will become forgetful as to which version of the truth you were told, and it will be different from the one you heard. Redundancy payouts can only be attacked by COA.

Write a letter to your Federal MP to complain (CSA hate it) and complain to the ombudsman (CSA hate it). It will make the CSA a wee bit more careful when dealing with you.

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. 
There is a medical form on the CSA website, print it out and ask his doctor to fill it in. That is what we did. The CSA cannot over ride medical evidence or advice provided by a registered Doctor.

The redundancy, plus the stress (if backed up by the doctor) really should give them no grounds to asses him on earning capacity - but you'll have to go through the process.

If your OH ends up taking a new job with less hours and thus less pay, then his ex may argue that even though he was made redundant, he could still carry out the same type of work for the same hours & money elsewhere. Having documentation proving the stress that his previous long hours caused will be handy if he gets a lower paid job.

My other half previously worked in the mines, so we had the doctor write in the medical certificate about how the 12 hour days, and the weekly travel effected his health and mental well being. His income halved as he returned to a normal job after the mine laid him off, but as we had medical evidence his ex's attempts at trying to convince the CSA that he could just find employment with another mine, and thus keep paying her loads of CS failed.
I think if you can get a grip on C$A then you can concentrate on sorting the children issues.

Yes become write only with C$A as it's the only way you make them accountable. They use the phone to manipulate people to their own ends. As mentioned complain in writing every time you think something is not right. Make sure any savings are in a joint account as they can't touch these funds. Never agree to pay any penalties as you can always negotiate to have them remitted and watch C$A statements very carefully making sure they are as they say.

Re the children, they are old enough to decide for themselves where they want to live so perhaps work on this. Court orders do help if you follow the court processes and use them when appropriate. I suggest you become self represented litigants as the court becomes free of charge.
Thank you everyone. I really appreciate the time it take to reply and include links etc and you all have been a great help. Will let you know what happens.
Annabel,

I hear all your frustrations.  If Mike T was listerning…he would direct you to the three rules of your damned, damned, and damned - this is the test where a change of employment (earnings) was of choice, either through death - sic sorry but remember this, major family changes, and re-education…okay the death thingy is rather harsh…but genuine cases will be heard by CSA…it is about evidence, action and results.

I do appologise, that I am not home at the moment to look up the some cases whereby the principles of decisions under just and equitible consider hardship and the resulting debt of the payer, the supporting asset base and capacity to continue the current level of child support.  It is clear that child support is not to be financed from credit cards or other loan facility, without corresponding and appropriate asset base.  That is, if there was a share portfolio, providing investment income, yet wages earning was reduced because of a "choice", then the current level of earning capacity "could be" considered as being maintained, despite the temporary reduction in wages.

I am sometimes surprised that C$A (individuals) have a heart in circumstances as you described.  Sadly you may have to dive on the privacy sword to demonstrate your circumstance, to counter argue short term debt scenario…with that there may be a fall out of your x, who you may feel will be jumping with delight with the thwist of this sword… but if this be the price to resolve the C$A in realising that blood no longer weaps from the wound…then sobeti.
Thanks EMW. How can we flag down Mike T Im wondering? I will be offline for a few days... then will check back. If it is clear that CS should not be made from loans then my husband should be ok for the minute as he literally would have to borrow money to pay now until he gets new employment and all because he fought tooth and nail to be able to see the kids. He has no shares or anything like that. I dont think they have a heart. It was a woman who spoke to him and she was so mean, she said the x can object, she may have seen evidence we are lying like receipts or letters. Like we have her in the house. (not!) and anyway made him sound dishonest. He felt bad enough about the job, has never been unemployed in over 30 years and hates it. Thanks again. If you find the cases and have time please do post the links, Ill see them next week when Im back online.
Annabel,
           first I'd suggest that you make a formal complaint about the letter being sent to the wrong parent. In complaining you should not only send the complaint to the CSA, but also to the Commonwealth Ombudsman, your local Federal MP and the MP for the DHS.

I am aware that the CSA have very recently introduced new policies in regards to debt collection. The CSA employers to adhere to the policies have to try to coerce you into taking out a loan as one example and if they can't they they will use a generic formula that does not consider situation specific items that should be considered (i.e. it is designed to try to screw more out of you than you can in fact afford). If you haven't then I would suggest that you only agree to pay an amount that you can afford to pay against any debts/arrears.

There are three considerations that MUST ALL BE MET if a capacity to earn is to be used. If the redundancy was not voluntary then the criteria cannot be met as the redundancy was not a decision made by the parent and thus it cannot be that the parent considered the affect on CS (condition 3) as the decision was not one made by the parent.


The CSA Guide - Reason 8 - a parent's income, property, financial resources, or earning capacity  (extract) said
Earning capacity

If the assessment is affected by a parent's reduced income, there may be special circumstances to justify changing the assessment to take into account the parent's earning capacity.
When can CSA take into account a parent's earning capacity?

From 1 July 2006, CSA can only determine that a parent's earning capacity is greater than is reflected in his or her income used in the child support formula if it is satisfied about all of the following three matters:

1. The parent is either:

    not working despite ample opportunity to do so (section 117(7B)(a)(i)); or
    has reduced his or her weekly hours of work to below full time work (section 117(7B)(a)(ii)); or
    has changed his or her occupation, industry or working pattern (section 117(7B)(a)(iii));

AND

2. The parent's decision about his or her work arrangements is not justified by either:

    his or her caring responsibilities (section 117(7B)(b)(i)); or
    his or her state of health (section 117(7B)(b)(ii));

AND

3. The parent has failed to show that the decision about his or her work arrangements was not substantially motivated by the effect this would have on the child support assessment (section 117(7B)©.

CSA must be satisfied that all three compulsory criteria are satisfied before it can change an assessment to take into account a parent's earning capacity, rather than his or her actual income.
If the parent's circumstances satisfy only one or two of the criteria, CSA cannot make a decision based on the parent's earning capacity.

CSA must also be satisfied it would be possible for the parent to increase his or her income by changing his or her work arrangements. That is, work must be available for the parent in his or her area and the parent must have the necessary qualifications and experience to perform that work.
Not working; working reduced hours; or has changed industry, occupation, or working pattern

This is the first of the three compulsory criteria for an earning capacity decision.

When considering the first criterion CSA must be satisfied that the parent:

    does not work despite ample opportunity to do so (section 117(7B)(a)(i)); or
    has reduced their weekly hours of work below the usual full-time standard in the occupation or industry in which he or she is involved (section 117(7B)(a)(ii)); or
    has changed his or her occupation, industry or working pattern (section 117(7B)(a)(iii)).

It is possible that a parent will meet more than one of these sub-criteria.

Except where the parent does not work, a parent who has not reduced his or her income cannot be found to have a higher earning capacity.

Example

A parent who refuses a promotion at work, maintaining his or her income at the same level, will generally not be found to have a higher capacity to earn.

Some reductions in income will not satisfy this criterion.

Example

A reduction from regular overtime to a standard working hours week or loss of bonuses which required additional effort beyond that required of a standard employee, cannot be considered as founding a parent's additional earning capacity.

Does not work despite ample opportunity

(section 117(7B)(a)(i))

A parent who is not working is one who is not engaged in work for remuneration, or in self-employment for profit.

A person can be said to be not working despite 'ample opportunity' to work if he or she has had offers of employment and refused them without adequate reason. Alternatively, if the person is not seeking work but there are job vacancies for which he or she is suitably qualified in their local area, this could also constitute ample opportunity to work.

Weekly hours of work reduced below the full-time standard for that occupation or industry

(section 117(7B)(a)(ii))

This sub-criterion may apply when a parent is still employed and has remained in the same occupation or industry. The relevant factor is that the parent now works less hours than they did previously. The fact that his or her hours have reduced is not in itself sufficient  the reduction must put those hours below the usual full time standard for the occupation.

The parent should be able to provide information about the usual full-time standard hours for their particular industry or occupation. Alternatively, CSA could obtain information from the person's employer.

Changed industry, occupation, or working pattern

(section 117(7B)(a)(ii))

This sub-criterion may apply when the parent is still employed, but has changed jobs, or rearranged his or her hours of work, or pattern of work. It is implicit that this change in industry, occupation or working arrangements has resulted in a lower income.

For a parent to change his or her occupation or industry requires a greater change than simply moving between employers or jobs. There needs be something in the nature of a change in career, or of working in the same type of job but in an entirely different field.

A parent who has changed his or her working pattern may still be in the same job, or employed in the same occupation or industry. What is relevant is whether the person has changed his or her hours of work, for example, by choosing not to work nights or weekends.

A parent may change his or her working arrangements, for example, to being a consultant or sub-contractor rather than an employee. In these situations CSA is satisfied that there has been a change in their working pattern.

If CSA is satisfied that the parent meets the first criterion (i.e. because he or she meets one or more of the three sub-criteria discuss above) it may be appropriate to make a decision to base the assessment on that parent's earning capacity. However, CSA may only make a decision of that type if the parent's circumstances also meet the remaining two compulsory criteria discussed below.
Decision not justified by the parent's caring responsibilities or state of health

This is the second of the three compulsory criteria for an earning capacity decision.

When considering this criterion CSA must be satisfied that the parent's decision not to work, to reduce the number of hours, or to change his or her working pattern is not justified on the basis of:

    the parent's caring responsibilities (section 117(7B)(b)(i));or
    the parent's state of health (section 117(7B)(b)(ii)).

This is an objective test. CSA must consider whether an ordinary, reasonable person would consider the parent's decision to be justified, rather than whether the parent who made the decision considers that their decision was justified. It is also important to note that if the parent's caring responsibilities or state of health do not adequately justify the parent's decision about his or her work arrangements, then CSA must then consider the third criterion below, relating to the parent's purpose in making that decision.

Parent's caring responsibilities

(section 117(7B)(b)(i))

The type of caring responsibilities that might justify a parent's decision to change his or her working hours will only be a personal responsibility to care for another person. Caring responsibilities include responsibilities to persons other than the parent's own children, such as their own parent, a new partner or step-children, elderly relatives or friends.

CSA will take into account the following factors when considering whether the parent's decision to change their working arrangements because of their caring responsibilities is justifiable.

    the relationship between the person being cared for and the parent providing care;
    whether the parent has a legal duty to maintain the person for whom he or she is providing care;
    if the 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 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 parent's caring responsibilities are such that they justify his or her decision to change his or her working arrangements.

The parent who is primarily responsible for care of the children for whom child support is payable may not be employed, or may be working part-time in order to accommodate his or her child care responsibilities. Where this is a longstanding arrangement (e.g. one that existed prior to separation, or since the children were born) the parent primarily responsible for care of the children may not have an additional earning capacity, because his or her ability and opportunity to undertake paid employment is diminished by their child care responsibilities and their absence from the workforce.

A parent who has been in the workforce may cease work, or reduce his or her work commitments to accommodate their responsibilities to care for a child. The child for whom the parent provides direct care could be the child from a former relationship (for whom child support is payable), or a child of a new relationship. In such cases, the parent (whether he or she is the payer or payee in the case) may still have an unexercised earning capacity that makes the assessment unfair. CSA may consider the following relevant facts over and above those considered in other earning capacity cases:

    the age, health and number of children being cared for;
    the practical availability of child-care;
    the economic cost of child-care compared with income available to be earned;
    the proposed period of the parent's absence from the work force; and
    whether the parent has appropriately balanced his or her obligation to support all of his or her children.

When making a decision about the effect a parent's caring responsibilities have on their earning capacity, CSA must have regard to government policies and initiatives designed to encourage parents back into the workforce. If the parent's caring responsibilities do justify his or her decision about his or her working arrangements, then CSA must not make a decision to base the child support assessment on the parent's earning capacity. However, if the parent's caring responsibilities would not preclude work, or additional work, CSA must proceed to consider the third criterion below, namely, the parent's purpose in making the decision about his or her working arrangements.

Parent's state of health


(section 117(7B)(b)(ii))

As with a parent's caring responsibilities, if a parent has health problems, this may mean that he or she does not have an earning capacity that makes the assessment 'unjust and inequitable'. If the Registrar is satisfied that the parent's state of health is such that he or she does not have an unexercised earning capacity that makes the assessment 'unjust and inequitable', it will not be necessary to consider whether the parent's circumstances satisfy the criteria in section 117(7B).

CSA will take into account any evidence that the parent presents about his or her state of physical and mental heath. It would usually be expected that a parent who claims to have made a decision to change his or her work arrangements because of his or her health will have been diagnosed by a qualified medical practitioner; treated for the condition and have made that decision based on medical advice. Therefore, the 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 the parent's decision about his or her working arrangements is justified on the basis of the parent's state of health:

    the fact that the parent is suffering from a medical condition and the effect that this has upon his or her capacity to work;
    the expected duration of the condition;
    any recommended treatment, and the impact that this has on the parent's capacity to work;
    the availability of light duties, if the 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 parent's state of health is such that it justifies his or her changed work arrangements. If the parent's state of health does justify his or her decision about his or her working arrangements, then CSA must not make a decision to base the child support assessment on the parent's earning capacity. However, if the parent's state of health would not preclude work, or additional work, CSA must proceed to consider the third criterion below, namely, the parent's purpose in making the decision about his or her working arrangements.
Purpose of the parent's decision about working arrangements

This is the third of the three compulsory criteria for an earning capacity decision.

When considering this criterion CSA must be satisfied that the parent has failed to demonstrate that affecting the assessment of child support was not a major purpose of his or her decision to not work, to reduce hours or change his or her occupation, industry or working pattern (section 117(7B)©.

The test is framed as a 'rebuttable presumption'. The starting point is that affecting the child support assessment is presumed to be a major purpose of the parent's decision about his or her working arrangements. The parent can rebut this presumption by demonstrating, to CSA's satisfaction, that affecting the child support assessment was not a major purpose of his or her decision.

This is a subjective test. CSA must consider what the parent's purposes were in making the decision about his or her working arrangements and whether a major purpose was to affect the child support assessment. It is not necessary that CSA is satisfied that the parent's decision was objectively reasonable, but the reasonableness of the decision is a factor for CSA to consider in deciding whether it is satisfied that the parent has demonstrated that affecting the child support assessment was not a major purpose in his or her decision.

In considering the reasonableness of the decision, it needs to be kept in mind that this policy on earning capacity is intended to be flexible enough to allow parents to make decisions about their work and life, for example, choosing to pursue a different career. It is not the intention to micro-manage a parent's life on the basis he or she may have made a better decision about employment than he or she did in fact make.

The provision refers to 'a major purpose' not 'the major purpose'. This means that the parent can have more than one major purpose in making the decision. A major purpose does not have to be the dominant purpose. It is more than a 'significant purpose'. A suitable test would be whether affecting the child support assessment was one of the most important factors in the parent's mind at the time of making the decision about his or her working arrangements.

The usual way for a parent to rebut the presumption would be to show that there were other factors that he or she considered which were the major purpose and that affecting the child support assessment was not a major purpose. CSA will ask the parent to explain:

    the factors they took into account in making their decision to reduce their earnings or not to work;
    what financial arrangements exist to enable them to support themselves; and
    the consideration they have given to the arrangements to support the children for whom child support is payable after they changed their work arrangements.

CSA will also take into account any other relevant information that is already available in CSA's records, including:

    statements the parent may have made when advising CSA about their change in work arrangements;
    statements he or she may have made when CSA was discussing collection activities; and
    comments made by the other parent in the course of the change of assessment proceedings.

In particular cases, CSA may also contact the parent's employer or former employer to establish what reason the parent gave when he or she notified the employer of his or her decision.

If the parent cannot demonstrate that affecting the child support assessment was not one of the major purposes in the decision, he or she will fail to rebut the presumption and it may be appropriate for CSA to make a decision to base the assessment on that parent's earning capacity.

It is more likely that a parent will be found to have a higher capacity to earn where he or she has voluntarily made a change resulting in a reduction in his or her income. Where a parent has made a change involuntarily, such as being made redundant, he or she will be unlikely to be found to have a higher capacity to earn where he or she has made reasonable efforts to resume income earning activities. Documentation which should be available to CSA to substantiate claims relating to unemployment includes:

    separation certificates and termination statements;
    a 'job diary', as required by Centrelink for some 'Newstart' beneficiaries; or
    copies of job applications and responses.

Study

A parent might decide to leave their employment (or reduce their hours of employment) in order to undertake a course of study. If the parent cannot demonstrate to CSA's satisfaction that affecting the assessment of child support was not a major purpose of his or decision to undertake study, it maybe appropriate to base the child support assessment on the parent's earning capacity, rather than the parent's reduced income.

CSA can consider the following relevant factors:

    the parent's reasons for undertaking the course of study;
    the length of the course of study;
    whether the parent took into account his or her obligation to provide financial support for the children during the period of study;
    the needs and situation of the children at the time of the application and during the period of study;
    the manner in which the parent will support himself or herself during the period of study;
    whether part-time work or part-time study was available;
    the length of time the parent had been planning to undertake the course of study;
    the likelihood of securing employment, and of deriving increased income, after the course of study; and
    the qualification that would be awarded on completion of the course of study.

Even if CSA is satisfied that affecting the child support assessment was not a major facto in the parent's decision, failure to resume work following the anticipated course of study may leave the parent open to a further consideration of his or her earning capacity.
Change of occupation or industry

A parent's decision to change occupation or industry while maintaining full-time employment, resulting in a reduction in income, is not likely to lead to a finding of an increased earning capacity, especially if the parent's previous employment was dangerous or required significant travel and time away from home.
What is a parent's earning capacity

In respect of the earning capacity of the unemployed or under-employed parent, CSA may enquire as to the 'ability of' and 'opportunity for' that person to seek and gain employment (DJM and JLM (1998) FLC 92-816). CSA will consider the parent's qualifications, skills, age and employment history.

Examples

A parent who has been caring for children and has not been in the paid workforce for many years may have difficulty entering the workforce.

A parent who has been in the same job for 20 years, and is made redundant, may have similar difficulty.

On the other hand, a parent who is qualified in an occupation in high demand would be expected to enjoy considerable flexibility in their choice of employment.

The other relevant consideration is whether or not there are any special, local or other factors that affect a parent's capacity to secure employment. Opportunities for employment vary from place to place and between occupational groups.

In determining the extent of the parent's earning capacity, CSA may consider the following (Scott and Scott (1994) FLC 92-457):

    the circumstances in which the parent became unemployed or without income;
    the reasons for the unemployment or loss of income;
    the nature of the parent's previous employment;
    the efforts which they have subsequently made to obtain employment; and
    the property or financial resources that are, or should reasonably be, available to the parent.

CSA must weigh up the individual factors of each case in deciding whether a parent who has ceased work, or reduced his or her hours, has the ability and opportunity to earn a greater amount, and whether that additional earning capacity makes the child support assessment unfair.

If you are working and your partner cannot get any income support then you may wish to apply for

The CSA Guide - 2.5.4: Application to have the minimum annual rate of child support reduced to nil said
2.5.4: Application to have the minimum annual rate of child support reduced to nil
Version 2.3, Last updated 8 March 2011 10:27am
Context

Where a child support formula produces an annual rate below the relevant minimum annual rate, and the fixed annual rate of child support does not apply, a minimum assessment will generally be payable. A parent may apply to have the assessment reduced to nil if their income is less than the amount of the minimum assessment multiplied by the total number of the parents child support cases.
Legislative references

    Sections 5, 7B, 65A, 66, 66A, 66B, 66C, 116, 153A and 155 Child Support (Assessment) Act 1989
    Part 5, Schedule 3 Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008
    Regulation 7D Child Support (Assessment) Regulations 1989

Explanation

    What is the minimum annual rate of child support?
    When can a minimum assessment be reduced to nil?
    Meaning of income
    Nominated Period
    Decision on Application
    Amending an assessment if section 66A requirements no longer satisfied
    WA ex-nuptial cases and applications made prior to 6 January 2009

What is the minimum annual rate of child support?

A minimum annual rate of child support of $320 per case is prescribed in the Assessment Act (section 66(5)). This amount is increased each year by an indexation factor (section 153A). The total liability of a parent under this provision is capped at three times the minimum annual rate (section 66(6)). See Chapter 2.4.12 for information about the minimum annual rate of child support.
When can a minimum assessment be reduced to nil?

A parent can apply directly to a court for a departure order (section 116(1)©) or can apply to CSA to have the minimum annual rate reduced to nil for a particular child support period (section 66A).

A parent must satisfy CSA that during the nominated period they have very low income, less than the minimum annual rate multiplied by the total number of the parent's child support cases (section 66A(2)). The information that the parent must provide will depend upon when the circumstances of their case and when their application was made.
Meaning of income

'Income' is not restricted to taxable income. For the purposes of this provision it is defined as (section 66A(4)):

    any money received, earned or derived for personal use or benefit, or
    any periodic payment by way of gift or allowance.

The only exclusions to this definition are prescribed in the regulations (regulation 7D). They are:

    amenity allowances or gratuities (incidental payments for personal items or other minor expenses, but not payments for work, study or participation in approved programs) paid to prisoners; and
    disability support pensions, pensions paid to veterans who are totally and permanently incapacitated and Special Rate Disability Pension for veterans, where at least 85% of the pension is paid to another person for the provision of ongoing care to the pension recipient.

Example

M, who has been assessed in respect of the cost of their child A, has been incarcerated since January 2008. For a child support period commencing on 16 November 2008, M has been assessed to pay the minimum annual rate. M makes an application to have the minimum annual rate reduced to nil. M advises that they work in the prison and expect to receive about $7 a day (above the basic amenities allowance) in payment or approximately $1,600 annually. As their income is more than the minimum annual rate of $339 the application is refused.

Example

F, who has been assessed in respect of the cost of their child A, is a resident in a nursing home. For a child support period commencing on 7 April 2009, F has been assessed to pay the minimum annual rate. F makes an application to have the minimum annual rate reduced to nil. F advises that they receive a disability support pension and have no other sources of income. They also advise that at least 85% of their pension is paid to the nursing home for their care. As the pension is excluded by regulation 7D, that income is not considered. As their income under section 66A of $0 is less than the minimum annual rate of $356 the application is granted.
'Money':

    includes coins and bank notes, cheques and deposits into bank accounts (but not goods, services, or some other benefit, even if the payment is capable of being valued in monetary terms);
    is 'earned' when it is received in return for labour or service, in compensation or as profit;
    is taken to be 'derived' in accordance with ordinary business and commercial principles. It includes capital payments, trust distributions and royalties;
    is taken to be 'received' when it comes into a person's possession. This covers most money which comes into a person's hands including capital payments, e.g. a tax refund, Lotto wins, lump sum compensation, profit from the sale of an asset, deposits into a joint bank account;
    must be received for the person's own use or benefit. Income received by a person in another capacity isn't included.

Examples

A trustee does not receive trust funds for their own use or benefit.

A person receiving Family Tax Benefit or child support is receiving that money for the children concerned and not for their own use or benefit.

A partner in a 'Business Partnership' only receives money for their own use or benefit when the person receives their individual share of the partnership profit.

Only net income is considered. CSA will deduct the person's expenses (that would be recognised for taxation purposes) that directly relate to them earning the particular type of income from their gross income. However 'paper expenses' (such as depreciation of property or assets or carried forward losses) should not be deducted, as they are not considered to relate directly to earning the income and/or do not reduce cash flow.

If expenses claimed are discretionary (e.g. repairs to a rental property) CSA must be satisfied that they were necessary before they will be deducted from income.

Example

The landlord of a rental property should be able to show that the property would not have been let if the repairs claimed were not carried out.

Although taxable income is calculated by taking the total amount of deductions away from the total amount of assessable income CSA will consider each individual source to determine the parent's income. Losses from one source will not be deducted from income from another source.

Example

A liable parent has applied for a minimum assessment to be reduced to nil for a child support period starting 1 August 2008. The liable parent has only one child support case and has the following income:

Net dividends $200

Net interest $80

Net distribution from family trust $100

Loss from rental property $500

The loss from the rental property is not taken into account in calculating the liable parent's income. Only net income from each source is considered and losses are not offset against other income. The liable parent's income is $380 ($200 + $80 + $100). The liable parent's application for a reduction will not be accepted as the minimum annual rate of child support for that period is $356.
Nominated period

In their application a parent must nominate a period for which they are seeking a reduction of the minimum annual rate to nil. This period can be either:

    the whole of a child support period, if they are assessed at a minimum annual rate for this entire period (section 66A(1)(b)(i)); or
    part of a child support period, if that part is at least 2 months long and they are assessed at a minimum annual rate for the nominated period of time (section 66A(1)(b)(ii)).

The parent must provide CSA with information on the income that they did or will receive during the nominated period (section 66A(2)).

If a parent wants to reduce their assessments for a period of time that includes more than one child support period after 1 July 2008 they must make an application for each child support period, or each nominated period within a child support period.

Example

M has been assessed at the minimum annual rate since the application for assessment was accepted on 1 February 2009. An assessment was later made for a child support period commencing 1 May 2010. M was not aware of the child support case until August 2010.

M explains that have been in receipt of a disability support payment since 2008. M can make an application to reduce the minimum annual rate to nil for each child support period, or any relevant nominated period of time.
Decision on Application

CSA will grant a parent's application if it is satisfied that the parent's annualised income, based on the income for the nominated period, will be less than amount of the minimum annual rate multiplied by the total number of the parent's child support cases (section 66A(2)). If a reduction is granted, it will apply to the days in the nominated period that are subject to a minimum assessment.

Example

M, who has been assessed in respect of the cost of the children in three cases, becomes unemployed on 7 December 2009. The child support period runs from 1 February 2009 to 30 April 2010. On 17 December 2009 M elects to use an estimate of income to have the assessment reflect their changed circumstances. M advises that they will receive no income for the remainder of the child support period as they are being supported by their partner. After the assessments have been amended M is assessed to pay the minimum annual rate in two of the cases.

M makes an application to have the minimum annual rate reduced to nil. CSA is satisfied with the income information provided for the nominated period, from 17 December until the end if the child support period. As M's income of $0 is less than three times the minimum annual rate of $356 ($1,068) the application is granted. The assessment is reduced to nil for the period 17 December 2009 to 30 April 2010.

A parent's annualised income is calculated in the following way (section 66A(3)):

Parent's income for the nominated period/Number of days in the nominated period x 365

Example

F has one child support case with a child support period starting 1 September 2008. The assessment is the minimum annual rate. On 1 August 2009 F makes an application for the minimum assessment not to apply. The application is for the period from 1 March 2009 to 22 July 2009 when F was in prison and did not receive any payment other than the basic amenity allowance. The only income F received in that period was $50 in interest income. F has recently been released from prison (on 23 July 2009) and is in receipt of a benefit payment.

In the 144 days between 1 March 2009 and 22 July 2009 F received $50. F's annualised income is $50/144 x 365 = $126.74. As F's income is less than 1 times the minimum annual rate of $356 the application is granted.

If CSA refuses to grant an application for a reduction, the unsuccessful applicant must be notified in writing (section 66C). That person can then object to the particulars of the assessment.

If CSA grants an application to reduce the assessment to nil, the nil assessment will remain in place until the end of the nominated period. If the other parent disagrees with CSA's decision to grant the application, they may object to the particulars of the assessment. If they believe that the assessment does not reflect the liable parent's actual capacity to pay child support, they can apply for a change of assessment.

If CSA grants an application to reduce the assessment to nil and the minimum assessment was based on an estimate of income supplied by the liable parent, CSA is still able to amend or reconcile the estimated income. Also, the liable parent can make a further estimate of income should their circumstances change.
Amending an assessment if section 66A requirements no longer satisfied

CSA may become aware of a change in the liable parent's circumstances after the assessment has been reduced to nil under section 66A. If CSA is satisfied that the parent no longer meets the requirements for the reduction then the assessment may be amended to have the minimum annual rate again apply (section 66B(b)).

CSA will amend the assessment from:

    the date of the change in circumstances that led to section 66A no longer being satisfied, if that date can be ascertained;
    the date the minimum assessment was first reduced, if section 66A was never in fact satisfied; or
    the date CSA became aware of the change in circumstances that led to section 66A no longer being satisfied.

Example:

F was assessed to pay the minimum annual rate to M for their children A and B. F has only the one child support case. F made an application under section 66A to reduce the minimum annual rate to nil for the entire child support period. CSA was satisfied that F's income for the nominated period was less than the relevant minimum annual rate. A decision was made that the assessment be reduced to nil.

Three months later, CSA became aware that F is now working part time. As F's income is now more than the minimum annual rate F no longer satisfies the requirements of section 66A. CSA amends the assessment under section 66B to reinstate the minimum annual rate from the date that F commenced work.

CSA must notify the liable parent in writing that the assessment has been amended and that the minimum annual rate is now payable (section 66C). That person can then object to the particulars of the assessment.
WA ex-nuptial cases and applications prior to 6 January 2009

The Further 2008 Budget Measures Act amended section 66(A) from 6 January 2009. Those amendments do not apply to applications made prior to 6 January 2009.

In relation to applications made prior to 6 January 2009:

    a parent's application to reduce a minimum annual assessment to nil must be made in relation to every day in a child support period for which the minimum annual rate applies; and
    CSA will grant a parent's application if it is satisfied that the parent's income for the 12 months starting from when the parent makes the application will be less than amount of the minimum annual rate multiplied by the total number of the parent's child support cases (regardless of the period to which the application relates).

Those amendments now apply to WA ex-nuptial cases.

See Chapter 1.4.3 for details of the date from which various provisions had effect for WA ex-nuptial cases.

The CSA Guide can be found here The CSA Guide
Annabel

Wright & Wright & Anor (SSAT Apeal) [2009] FMCfam979 (14 September 2009) at 19 ' The artifice of finding that a person can pay child support at a greater level on the assumption that they could borrow money, when they have no assets for security, nor any other financial resources, was simply not open to the Tribunal in this case.  The rejection of such a reasoning process occurred long ago in the Family Court where the Court made clear that 'a capacity to borrow is not property' : per Lindemayer J in Walters & Walters [1986] FLC 91-733; [1986] FamCA 8: [1986] 10 Fam LR 1006 at [17]."
This reference as you can see was reasonably tested recently…mind you, I did use it in the SSAT releam and they ignored this principle…my SSAT appeal is on 25 May…but for you I am pleased that Mike T provided the wonderful resource.  I am very grateful for the information that is provided by Mike T - Thanks Mike T…EMW1965
intresting reading, My partner has a court date to apply for leave for csa to reasses child support assessment that are over 18 months but less the 7 years, having served the court papers on the other party ( the mother). She is asking the court to dismiss the application, dont think she understands that it is only a hearing to give leave, its then upto the csa to make a determination if they will reconcille his child support assessment to his actual tax assessment. funny thing is she refused mediation for contact, but when my partner served the court paper she was quick off the mark to try and have the case dissmissed.
Thank you so much Mike T and EMW. You have been so helpful. I really appreciate it. I will post what happens now as we are waiting to see what comes in the mail. Thanks again.
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