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overpayment - arrears - 2 cases

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why isn't everyone treated equally?

Case 1 - mum has 3 kids, dad works, rarely pays any child support & doesn't do tax returns.  CSA works out an estimate for dad to pay - arrears building up (mum & dad separated in 2000). End 2008 dad does 00/01 tax return, dad earnt less than CSA estimated. Assessment changed to refect true income (dad still has debt of $20,000). Mum is made to repay the "overpayment" even though there is still a large amount of arrears owing to her. CSA takes a % of what she receives in child support of 2nd paying father.  Why couldn't the overpayment amount be used to reduced the debt that the dad has????

Case 2 - mum has 3 kids, dad on dole, moves in with new girlfried in 2000 so mum gets nasty & tells CSA dad is working. CSA estimate dad earns $32,000 for 00/01 period.  Dad tells CSA he on dole & won't earn that. CSA won't accept dads estimate.  Much dispute…. COA lodged end of 2001 as dad earnt under $9000 for year on dole.  Beginning 2002 dads wages garnished for arrears (breaks up dads new relationship due to financial difficulties).  April 2002 CSA conceeds dad only earnt what tax returns state & that minium rate is all he should have been charged.  May 2002 CSA says only the remaining arrears will be removed as the mum has now been overpaid & would cause her financial hardship if she were made to repay it. Dad said not asking to repay, just an account credit so he wouldn't have to pay child support until the credit ran out. CSA declined this also on the grounds that she may suffer financially by not receiving child support.

Why are 2 mums treated so differently???? What can be done in either cases?

Any help would be greatly appreciated.
Unfortunately this seems to be very common - cases treated so differently. The same set of rules applied by CSA but with so many different officers interpreting it in their own way, it can end up like this.

Case One  - I would put in writing your suggestion (send it registered mail) about reducing paying parents arrears. It would seem reasonable and standard for the CSA to do that anyway but there you go! Also if the receiving parent did COA back then when CSA did the estimate it would have been set for that amount and the tax return would have not been able to change anything. COA's set income overrides tax returns. Just a idea for the future.

Case Two - Dad needs to write letter (or have one written for him - with him signing it) saying he did not agree to "gifting the overpayment to receiving parent" and that a percentage of the overpayment be used (say 30%) with him making up the rest of the payment as usual in order to avoid financial hardship for the children and receiving parent. Propose to do this until overpayment has been used up. Everybody wins. Of course send this correspondence by registered mail.
Thanks for advice, but:

case 1 - letters, phone calls & face to face with CSA to have them take the debt off dad 1's bill, and each CS officer has a different reason as to why ths can't be done.  Excuses include dad 1 has already been reimbursed by CSA (reply was, why would CSA reimburse him when he owes $20,000+, CSA replied that is the way things are done) BUT dad 1 says they have never paid him money back, which he may be a lousy payer, but he's not a liar. They must collect the overpayment for that period, in which it will be paid back to mum when it is repaid in full to come off the debt that is there.  My personal favorite is the excuse that the money is actually owed to the Govt, not the dad (this reply came after CSA was asked exactly where the money is going that they are withholding from 2nd dad's child support payments), stating that the CSA had paid mum money i antisipation of them receiving payment off dad 1, so when dad 1 didn't pay, debt was created.  However the debt as they call it didn't surface til 2008 when dad 1 lodged tax return and why wasn't the amount used as arrears for money dad 1 owed from previous years of not paying.  Dad 1 has never been up to date with payments, so has always been a growing debt. How does CSA thinks it's fair to withold % of money received from dad 2 because dad 1 hasn't made payment for months.

case 2 - dad was told to lodge a COA to have his actual income taken into account & had to send in copies of his tax returns, after they received the application they began garnishing 20% of dads wages and it wasn't til dad stopped working (& CSA was getting no more money)that they responded to his COA. Dad has tried to dispute that there should be a credit applied, even again now that he has a large debt, but he has been told that no-one can change the COA which was put in place to avoid raising a debt against the mum.  Surely there has to be a way of having this unfair decision looked at & overturned?
Have you had a read of the CSA Guide and also the relevant CSA Legislation?

In the first instance, it would be good for you to have a read through these to give you an overview of what's happening, why its happening, and what your options are.

There are options available to have a decision reviewed, however, there are also time limits which apply.

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
Case one - The mum could try objecting to the decision made by CSA to withhold payments from dad2 instead of reducing dad1's arrears as would be fair. I am of the belief that any decision CSA makes can be objected to. Possibly even the thought of someone taking it further would be enough for them to reconsider what they are doing. Perhaps going to local member or ombudsman would likewise prompt them.

Case two - It disgusts me how many inexperienced workers are at the CSA misinforming parents on their rights. Anyway he could try objecting to csa decision of not applying overpayment against his arrears. This will in no way cause any further financial hardship to the other parent. All COA's can be objected to, although obviously if it is more than 28 days after decision it might have to go through an extremely long process. Applying for an extension of time (objecting when csa doesn't accept it) then appealing to ssat. Ombudsman may take the case on if you have letters stating how much was overpaid and what the csa was planning on doing with it would help. Has the father put forward a payment plan to csa for the arrears? It would be helpful for csa to know he is trying to do the right thing. How long has father been on the dole? How long has he been assessed on minimum payment? These are all things that are looked at by csa and determine how they treat you. If the father has been on minimum payment for years (while lets face it he could be working) maybe he should look at the bigger picture and see that maybe it balances out? The debt and what he would have been paying for that time if he had a job I mean. Obviously i don't know the entire situation so just a thought, if he has been working and supporting kids since then i take it back. It is hard not to get caught up when fighting one battle after another and not notice the kids suffering and being permanently affected by bitterness of both parents. It might be worth the dad ringing up the mum and cutting a deal eg: I will get a loan and pay you all arrears in lump sum if you ring csa and tell them you received non agency payment of the amount I overpaid. Might be tempting enough for custodial parent struggling to pay the bills to accept. Also at the same time cut a deal with csa to take off late payment penalties - which they can happily do if you wipe entire debt.
By babygirl said
I am of the belief that any decision CSA makes can be objected to.



CSA Guide - 4.1.2: Decisions made under the Assessment Act to which a parent may object said
4.1.2: Decisions made under the Assessment Act to which a parent may object

Version 2.2, Last updated 11 September 2009 5:00pm

Context

A parent or non-parent carer may object to certain decisions under the Assessment Act.

Legislative references

Sections 79D and 80 Child Support (Registration and Collection) Act 1988

Child Support Legislation Amendment Act 1998

Child Support Legislation Amendment (Reform of the Child Support Scheme  New Formula and Other Measures) Act 2006

Explanation

A parent or non-parent carer may object to particular decisions made under the Assessment Act. A person cannot apply to the SSAT for a review of a decision unless they have already objected to CSAs decision. In most cases, a person cannot apply to court about a child support assessment unless they have already objected to CSAs decision about that assessment and have also sought a review of the objection decision by the SSAT.

Section 80(1) of the Registration and Collection Act provides that parties to an assessment can object to the following decisions by CSA that were made under the Assessment Act:

    * to accept an application for assessment (unless the ground of objection is that the person is not the parent of the child);
    * to refuse to accept an application for assessment (unless one of the reasons for refusal was that CSA was not satisfied that a person who was to be assessed in respect of the costs of a child is a parent of the child);
    * as to the particulars of the assessment;
    * as to the particulars of a notional assessment;
    * to make or refuse to make a change to the assessment under Part 6A of the Assessment Act;
    * to accept or refuse to accept a child support agreement;
    * to terminate a limited child support agreement; and
    * to refuse to remit an estimate penalty in whole or part.

Prior to 1 January 2007 the objection provisions relating to decisions made under the Assessment Act were contained in Part 6B of that Act. The Reforms Act repealed those provisions and resulted in the current arrangements. Objections provisions for decisions under the Assessment Act were introduced by the Child Support Legislation Amendment Act 1998 and apply to decisions relating to assessments from 1 July 1999.

A decision to accept an application for assessment

A parent who is assessed in respect of the costs of the child can object to CSAs decision to accept an application for a child support assessment. The objection can be on any grounds other than the ground that the person is not a parent of the child (item 9, section 80(1) and section 80(4)).

Example:

CSA accepts Fs application for an assessment of child support for her child A, payable by M. F provided a statutory declaration signed by M, stating that M is the father of A.

M advises CSA that he did not sign the statutory declaration and he does not accept that he is As father.

M cannot object to CSAs decision to accept the application for assessment. His objection is on the basis that he is not a parent of the child concerned. Therefore his option is to apply to a court under section 107 of the Assessment Act for a declaration that he should not be assessed in respect of the costs of the child because he is not a parent of the child.

Example:

CSA accepts Fs application for an assessment for child support for her child A, payable by M.

M advises CSA that he does not believe he should have to pay child support for A, who is aged 17, as she is living in a de-facto relationship with her boyfriend.

M can object to CSAs decision to accept the application for assessment. The ground of his objection is that A is not an eligible child as she is a member of a couple.

A decision to refuse to accept an application for assessment

An applicant can object to CSAs decision to refuse to accept their application for an administrative assessment unless one of the reasons for refusal was that CSA was not satisfied that the person who was to be assessed in respect of the costs of a child is a parent of the child (item 10, section 80(1) and section 80(5)).

If an applicant disagrees with CSAs decision to refuse their application because CSA is not satisfied that the person who was to be assessed in respect of the costs of the child is a parent of the child, they can apply to a court under section 106A of the Assessment Act for a declaration that the person should be assessed in respect of the costs of the child because the person is a parent of the child. If a court grants the declaration, CSA is taken to have accepted the application for assessment.

If there was more than one reason for refusing the application, the applicant can apply to a court for a declaration that they are entitled to have CSA reconsider the application because the person who was to be assessed in respect of the costs of the child is a parent of the child. If the declaration is granted, then CSA must reconsider the application.

A decision as to the particulars of a child support assessment

Parents and non-parent carers can object to CSAs decision about the particulars of their administrative assessment (item 11, section 80(1)).

The particulars of a child support assessment are all the elements of the child support formula including:

    * the adjusted taxable income of each parent;
    * the child support income of each parent;
    * the self-support amount of each parent;
    * the income percentage of each parent;
    * the care percentage of each parent;
    * the cost percentage of each parent;
    * the child support percentage of each parent;
    * the costs of each child; and
    * the annual rate of child support

Example:

M disagrees with CSAs decision to reduce the child support assessment because F has lodged an estimate of income. M can object to CSAs decision because it is a decision in relation to a particular of the assessment i.e. the adjusted taxable income of F, the parent who lodged the estimate.

Example:

F disagrees with CSAs decision to change the care percentage used in the child support assessment. F can object to CSAs decision because it is a decision in relation a particular of the assessment, the percentage of care used in the assessment.

Example:

F disagrees with the amount of child support CSA worked out in accordance with his child support agreement with M. F can object to this decision because it is a decision in relation to the annual rate of child support, a particular of the assessment.

A decision as to the particulars of a notional child support assessment

Parents and any non-parent carers can object to CSAs decision about the particulars of their notional assessment (item 14A, section 80(1)). There are no review rights in relation to a provisional notional assessment, as either party can ask for certain variations to the provisional notional assessment. Once a provisional notional assessment has become a notional assessment, an objection can be made to the particulars of the notional assessment.

A decision to make or refuse to make a determination under Part 6A of the Assessment Act (change of assessment)

A parent or non-parent carer can object to CSAs decision to make a change of assessment decision or to refuse to make a change of assessment decision (item 15, section 80(1)). The person who objects does not have to be the person who applied for the change of assessment.

A decision to accept or refuse to accept a child support agreement

A party to the child support agreement can object to CSAs decision to accept or refuse to accept their child support agreement (item 14, section 80(1)).

A decision to terminate a limited child support agreement

A party to a limited child support agreement can object to CSAs decision to terminate their agreement if the decision to terminate resulted from an election to terminate the agreement being lodged one of the parties to the agreement (item 13, section 80(1)). The election to terminate may have been made because the notional assessment was varied by more than 15% or because the agreement was made 3 or more years prior to the election to terminate.

A decision to refuse to remit an estimate penalty in whole or part

A parent who requests CSA to remit their estimate penalty can object to CSAs decision in relation to the remission of that estimate penalty (item 12, section 80(1)).


CSA Guide - 4.1.3: Decisions made under the Registration and Collection Act to which a parent may object said
4.1.3: Decisions made under the Registration and Collection Act to which a parent may object

Version 2.1, Last updated 10 October 2008 5:00pm

Context

A parent may object to certain decisions made under the Registration and Collection Act.

Legislative references

Sections 4, 79D and 80 Child Support (Registration and Collection) Act 1988

Explanation

A parent or non-parent carer can object to the following decisions made under the Registration and Collection Act:

    * A decision to register or refuse to register a registrable maintenance liability;
    * A decision to refuse to enter the particulars of a liability;
    * A decision about the particulars of a registrable maintenance liability entered in the Register;
    * A decision to vary or refuse to vary the particulars in the Register;
    * A decision to delete an entry from the Register;
    * A decision to credit all or part of a non-agency payment under section 71, 71A or 71C of the Act (payee only). (See chapter 5.3);
    * A decision to refuse to credit all or part of a non-agency payment, under section 71, 71A or 71C of the Act. (See chapter 5.3);
    * A decision to refuse an election that employer deductions not be made;
    * A decision to refuse to grant an application for collection of arrears for more than 3 months;
    * A decision to refuse an election to end CSA collection;
    * A decision to refuse an election to have CSA collect;
    * A decision to refuse an overall non-care period;
    * A decision to make deductions from Family Tax benefit payments;
    * A decision to start or refuse to start a low-income non-enforcement period;
    * A decision which results in failure to collect an amount payable that has been unpaid for 6 months if legal proceedings have not commenced for recovery of the amount or proceedings have commenced and at least 3 months has elapsed since the proceedings were commenced (payee only); and
    * A refusal to remit late payment penalties imposed on payers and employers (party upon whom penalty has been imposed only).

Section 26 sets out the particulars that CSA must enter in the Child Support Register in relation to each case. As noted above, a parent may object to a decision to vary or refuse to vary those particulars. The particulars entered in the Register include the following:

    * Details of the child support assessment, court order or maintenance agreement (including matters such as the name of the parents, the periodic amount and the basis of the liability);
    * Details of the payment period and the payment rate (including the initial period, payment period and rate of payment);
    * Details of the enforcement period and any suspension of liability; and
    * Any other particulars that CSA chooses to include (such as the daily rate or statement concerning employer withholdings).

An objection to a decision to vary the particulars in the Register can only be made against the particulars varied or other particulars affected by the variation (section 80(3)).
babygirl said
 How long has father been on the dole? How long has he been assessed on minimum payment? These are all things that are looked at by csa and determine how they treat you. If the father has been on minimum payment for years (while lets face it he could be working) maybe he should look at the bigger picture and see that maybe it balances out? The debt and what he would have been paying for that time if he had a job I mean. Obviously i don't know the entire situation so just a thought, if he has been working and supporting kids since then i take it back. It is hard not to get caught up when fighting one battle after another and not notice the kids suffering and being permanently affected by bitterness of both parents. It might be worth the dad ringing up the mum and cutting a deal eg: I will get a loan and pay you all arrears in lump sum if you ring csa and tell them you received non agency payment of the amount I overpaid. Might be tempting enough for custodial parent struggling to pay the bills to accept. Also at the same time cut a deal with csa to take off late payment penalties - which they can happily do if you wipe entire debt.
 

Worse thing with this case is his ex is very bitter because on paper they separated in 1992, because she wanted the benefits of a single mum's pension. Meanwhile dad was working on & off over the years between being in & out of goal.  He finally decided to move on with his life (being they shared the same house & expenses, but she would only have sex if she was allowed to have another baby, he said no more kids unless you get off the pension) so he moved out in 2000 & got himself a girlfriend.  She then stopped him from seeing his kids & told CSA huge amounts of lies.  CSA listened to the 'poor struggling mum' (who owned her own house that dad helped pay off, which they built) and put his child support up, even though he was trying to get back on his feet (she wouldn't even let him take his own clothes when he left, all he had was the clothes he was wearing).  The kids suffered her ongoing lies about what his girlfriend at the time was like, and not to go to him because the girlfriend would kill them etc.  The dad eventually mediated with their solicitors & gained access on school holidays in a Parenting Plan. First lot of school holidays, the youngest one was too scared to go in fear of her life, so the dad didn't make her. Two older kids had a ball. The next set of holidays, Dad went to pick them up - no one was home. He sought help from the local police, only to be told that the Parenting Plan wasn't worth the paper it was written on.  He was told, go back to court (that's great if you have the money).  He hasn't been able to have contact with them since 2001.  In the period he was with his girlfriend, they paid bus fairs, brought school uniforms, school shoes, purchased a car & got it on the road for his childrens needs.  His ex also stole money out of his bank account via phone banking, as well as used his money to pay her electricity & phone bills.  But did CSA take any of this into account - NO.  Admittedly he had no receipts for bus fairs, uniforms & shoes, but he did for everythng else & all the mum did was say that he consented to this & it wasn't to be used towards child support.  Her kids wear name brand clothes, they eat all expensive brand food, use expensive brand products, go on holidays 3 times a year, go to the movies and the list goes on, meanwhile the dad's girlfriends kids suffered. They couldn't even afford to buy 2nd hand unforms when her eldest started year 1, the child was sent to school in clothes that were too small because they couldn't afford to buy any at all. They brought nothing but generic brand food & cleaning products etc.  Her children have NEVER been on a holiday in their lives. They can't afford to go to the movies, they can't even afford to hire DVD's.  Neither of them smoke, drink, gamble or waste their money in any way, yet her children suffered because of the CSA's decisions.

Why do people instantly judge dads as being dead-beats?  Some people are not well educated, so get stuck doing the worst paying jobs out there (and lets face it, someone has to do it). Secondly, how many fathers out there made the choice to become a father?  This particular dad was told by his partner at the time that she was medically unable to fall pregnant (which her GP confirmed) and yet within 6 months of getting together, she was pregnant. But the man has no rights to force her to terminate the pregnancy. Thirdly, why is a father expected to work, but it is fine for the mother to stay home, even when the kids are all at school?  I was a single mum with 5 young kids & I worked full time to support MY children.  Lastly, what about mum's who end up as single mums, not because of a marriage breakdown, but because of death?  These mums are not offered extra support because the husband had be earning X amount when he died, instead, these mums have a huge amount of grief to get though as well as manage to sort out their finances with the main income gone.  I think CS would not be such an argued issue (and would save the govt heaps) if the mums Family Allowance was reduced dollar for dollar ie for each dollar the mother recieved in CS, the govt would save by not paying in FA.
Without all the relevant information (that is now supplied) it is impossible to determine what the exact particulars in a situation are. I did not say "poor struggling mum" just that a lump sum maybe tempting enough for the custodial parent struggling to pay bills to accept in regards to the overpayment which was mismanaged by CSA.
It seems clear that in all cases like this, a similar trend happens with non custodial parents being blindly trusting with non agency payments or paying for stuff without receipts that could normally be called prescribed/direct payments. A pamphlet for all newly separated parents should be supplied advising parents on pro's and con's of these payments and other csa payment options. The real deal with it all - in simple format. It always seems better if ex's on either side are untrustworthy or if it is unknown what their actions will be, that payments should only go to the CSA and then on to the other parent. Nearly always it seems paying parents have to find out the hard way, losing sometimes thousands of dollars of unrecognised child support payments by their (totally justified) wish to directly support their children. Also if newly separated parents do not immediately freeze credit cards and close joint accounts they can be burnt badly in a separate arena.
I didn't mean for it to sound like I was attacking you directly. It just seems that usually single mums are portrayed as struggling, when in reality it is quite the opposite. Speaking from experience, I'm much better off being a single mum, where home ownership was out of reach when I was with my ex, I have worked hard, but I now own a brand new home (the ex is still renting & he doesn't pay a cent in child support). When I wasn't working I still did fine.

I have a wide array of friends who have their own individual problems with the CSA, and although some have very similar problems, the CSA appears to deal with them in very different ways.  I believe there should be an overhaul of the way CSA staff make decisions. ie. if there is an overpayment there should be only one option, either it be "gifted" or it be paid back, not give the case officer the option to choose.  The system needs to be fairer so what goes for one, goes for all.  Then payers & payees would know exactly what to expect.  Just my thoughts.
  Overpayments in my opinion should never be gifted, to me that is not fair. They automatically should be applied as a credit on the account of the paying parent. A paying parent doing the right thing should not be penalised by being coerced by the CSA into "gifting it" and hence saving the agency a bit of work.

  I personally wasn't better off as a single mum, so I am glad for some it is better. Definitely not ideal, with how you are looked down upon (even now) in society. I don't believe that some single mothers are portrayed enough as struggling to the extent that they really are.
  It is more common that SM's are looked upon as leeches and want to just have babies to unsuspecting men. Are these men not aware of the birds and the bees? Even though there is a percentage out there that may do that, take comfort in this : It may come as a shock to these individuals when all their children are over eight years old,  are no longer eligible for the single mothers pension, and therefore are expected to work at least 15 hours a week. It is not advisable to breed for money - at least in the long run.
  It is a mistake for people to judge others, without knowing their individual situation. Do not begrudge a family or mother for having lots of children, it is possible they really love children and live for them (you know - have them for the right reasons!) - it is entirely likely that some of these will end up with jobs in aged care - I'm thinking we will need to have a major workforce in that area! Better than importing a workforce don't you think?

  I do agree with you CSA hates me in one of your previous posts you thought family tax benefit should be reduced "dollar for dollar" for child support received. This would be fair in my opinion too. Instead of the reduction of 50(?) cents in the dollar or whatever it is at the moment. You can email this suggestion to any government website. I will do the same and anyone else who feels this to be a good idea should too…
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