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Overpayment to CSA - SSAT lodgement

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Just wondering if anyone else has gone through this…

Mr O had a private arrangement with ex in regards to Child Support. Mr O then was made redundant, found another job (much less pay). Ex then goes to CSA and wants "arrears" (there is none, but asks for it and gets it on the account anyway).

Mr O is also taken on old pay, has proven not on this wage, but assessment was not changed for 3 months.

3 months of overpayment, complaints to CSA, change of assessment form sent to back date. Received first decline to back date.

Reply to CSA with dispute, receive letter saying, (ultimately) "yes, you have over paid, but it's around $4k, so we can't take this off (ex) as that would put her in financial hardship, so no, you aren't getting it back".

Put in application to SSAT.

Has anyone gone through this or have any advise?

Thanks
If you have the admission of over payment in writing from C$A, pursue your claim.

They can make the ex pay off the over payment by reducing monthly payments. Don't let this one go!
Agree with fairgo, insist they credit the overpayment. The can reduce your monthly payments to cover the over payment, they just don't like doing it as it reduces the amount they collect.
Depending on the circumstances, you may have the right to lodge a comp claim for defective administration - there are plenty of posts about this.

You just gotta love CSA with their 'hardship' considerations which are used when convenient!
Simple, Dont pay CS untill the debt has gone.
If there is an ongoing amount of child support you still have to pay - refuse to pay it until the money is refunded. In that case CSA has the option of refunding it from Govt funds and then pursuing the other parent for that money, i.e. it becomes a commonwealth debt. They will only do that however if you refuse to make future payments as creating debts from the consolidated revenue fund must further the interests of the child support acts, i.e. the refund of your overpayment will lead to more payments for the kids.
storez said
….e.

Reply to CSA with dispute, receive letter saying, (ultimately) "yes, you have over paid, but it's around $4k, so we can't take this off (ex) as that would put her in financial hardship, so no, you aren't getting it back".

Put in application to SSAT.
What they should have said was that a 4k overpayment can be managed by allocation of the amount over a period of time and thus reducing your current deductions by a percentage to take up the amount over say an assessment period. Seems rather odd to me that they would have told you to take it to SSAT. I think this deserves noting and us to follow up with the operational teams as hardly consistent advice. It would be interesting to get more detail and speak to the CSA as to why (from the guide) that determination was made after your objection. Objections are supposed to come with some significant explanation (based on new COA decision rules) so you should already have their proper and full explanation in writing.

Executive Secretary - Shared Parenting Council of Australia
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You may find the following of use:

The CSA Guide - 5.5.5: Overpayments said
Context

Overpayments of child support occur when a payee has been paid child support to which they are not entitled, usually because CSA has made a retrospective variation to a child support assessment, or where a court makes an order or declaration with retrospective effect. A payer may choose to waive their entitlement to be repaid an overpayment.

The payer is entitled to take action against the payee to recover overpaid child support. CSA is also entitled to recover some overpayments from the payee.
Legislative references

    Sections 30, 72, 76 and 79 Child Support (Registration and Collection) Act 1988
    Sections 107 and 143 Child Support (Assessment) Act 1989
    Sections 44 and 47 Financial Management and Accountability Act 1997
    Section 1228(2B) Social Security Act 1991

Explanation

    Overpayments where there is no registered maintenance liability
    Retrospective variation after a terminating event
    Overpayments where there is a registered maintenance liability
    Recovery from payees
    Negotiated payment arrangements with payees
    Withholdings from future payments of child support
    Refunds to payers
    Ongoing cases
    Ended cases and ongoing cases where CSA decides not to refund

Where CSA makes a retrospective amendment to a child support assessment, or gives effect to a court order or declaration with retrospective effect, this can result in a child support overpayment.

Although the Assessment Act minimises the circumstances in which overpayments occur (for example, assessments are only amended prospectively when a parent estimates their income) overpayments do occur in the ordinary course of child support cases. It is important for CSA to deal with overpayments in a way that is consistent with the objects of both child support Acts and fair to both parents. Before seeking to recover an overpayment from a payee, CSA will contact the paying parent and ask if they wish to waive their entitlement to the overpayment. CSA will not recover from the payee if the payer does not seek repayment from the payee.

The Financial Management and Accountability Act 1997 requires CSA to deal with Commonwealth revenue in an efficient, effective and ethical manner (section 44). It also requires CSA to pursue all relevant debts owed to the Commonwealth unless the debts are not legally recoverable or CSA considers that it would not be economical to pursue recovery of them (section 47).

There are two kinds of child support overpayments:

    overpayments where there is no registered maintenance liability
    (which are not debts the payee owes to the Commonwealth); and
    overpayments where there is a registered maintenance liability
    (which can be debts the payee owes to the Commonwealth).

Overpayments where there is no registered maintenance liability

There is no registered maintenance liability if a liability that was registered was never entitled to be registered.

When CSA receives applications to register liabilities or make child support assessments, provided all the requirements of the law are satisfied, CSA must register the liability or make the assessments. Sometimes other evidence or a subsequent court order requires that the registered liability be cancelled. In these circumstances, the liability was never entitled to be registered.

CSA cannot recover overpayments that occur when there is no registered maintenance liability because they are not debts due to the Commonwealth under section 79 of the Registration & Collection Act. A payer can take action to recover these overpayments from the payee in a court with family law jurisdiction. If child support was paid under a child support assessment, the payer can make an application to the court under section 143 of the Assessment Act to recover from the payee any child support paid. If the registrable maintenance liability arose under a court order or court-registered agreement, the person may be able to take recovery action against the payee in the court that made the order or registered the agreement.

Example:

A court makes a declaration under section 107 of the Assessment Act that M should not be assessed in respect of the costs of child C. The effect of the courts declaration is that CSA is taken never to have made a child support assessment in relation to C. The payee, F, is taken never to have been the payee of a registered maintenance liability. The child support that CSA collected from M and paid to F is not a debt due by F to the Commonwealth under section 79 of the Registration & Collection Act.


If the court makes a declaration that the payer should not be assessed in respect of the costs of a child because the payer is not a parent of that child, the court is obliged to consider making an order for recovery of that overpayment (sections 107(6) and 143 of the Assessment Act). If the court orders the former payee (i.e. the payer of the order) to repay a specified sum to the former payer (i.e. the payee of the order), that parentage overpayment order can be registered with CSA for collection. Upon registration, the specified sum repayable by the payer of the order becomes a child support debt due to the Commonwealth under section 30 of the Registration & Collection Act. CSA can collect the specified sum for disbursement to the payee (i.e. the former payer) (see Chapter 3.1.2 for more information about parentage overpayment orders). The administrative and other measures that CSA can use to collect the amounts owed under a registered parentage overpayment order are discussed in Chapters 5.1 through to 5.4 of The Guide.

A payer (or former payer) is also entitled to apply to a court for an order under section 143 of the Assessment Act in any other situation where he or she has overpaid child support to the payee under a child support assessment. However, CSA can only register the order for collection if it is a parentage overpayment order and it requires repayment of a specified sum.

If an overpayment occurs when there is no registered liability, CSA will advise a payer that section 143 of the Assessment Act specifically provides for them to make an application to a court for recovery of child support paid where a liability no longer exists. The payer must name the payee as the respondent to their application, as the child support paid to CSA is taken to have been paid to the payee for the purposes of section 143 (section 143(4)).The court cannot make an order requiring CSA to repay the overpaid amount to the payer (Child Support Registrar and Z and T (2002) FamCa 182; Mercer v the Child Support Agency [2004] FCA 465).

Even if a payee is still a payee of a registered maintenance liability for other children in an assessment, the overpayment that relates to the child/ren for which the section 107 declaration was made is not a debt to the Commonwealth that is recoverable from the payee under section 79 (Mercer v the Child Support Agency [2004] FCA 465).

Under section 143 of the Assessment Act, the court may make whatever orders, in relation to the payee, it considers are just and equitable in the circumstances to give effect to the rights of the parties and the child(ren) (section 143(3)). If the court is considering whether to make an order for the former payee to repay an overpayment arising from a declaration under section 107 of the Assessment Act, it must have regard to the matters listed in section 143(3B) of the Assessment Act. These include:

    whether the former payer or payee knew (or should reasonably have known) that the former payer was not a parent of the child;
    any conduct of the former payer and payee that led to CSA accepting the application;
    any delay by the former payer in making the application to court for a declaration under section 107 of the Assessment Act;
    whether child support is or will be payable for any other child of whom the former payer and payee are parents;
    the former payers relationship with the child; and
    the former payer and payees financial circumstances.

Retrospective variation after a terminating event


Where a registered maintenance liability exists and CSA is advised of a terminating event, CSA must vary the liability from the day the terminating event occurred. Although backdating a terminating event cancels part of the liability, it is not the same as cancelling a liability completely. Backdating a terminating event is a variation to a liability that is entitled to be registered. Any overpayment can be recovered by CSA from the payee under section 79 of the Registration & Collection Act.

Example:

F is required to pay child support to M for the child C from 12 December 2006. On 7 October 2007, M notifies CSA that C left home on 15 August 2007. CSA varies the child support assessment by removing C from the assessment from 15 August 2007. M has received payments under 76 of the Registration & Collection Act which are repayable by CSA to F. CSA can recover these amounts from M under section 79.


Overpayments where there is a registered maintenance liability


There is a registered maintenance liability if, at any time, a liability was entitled to be registered. Overpayments that occur in relation to registered liabilities are debts due to the Commonwealth and are recoverable from the payee by CSA under section 79 of the Registration and Collection Act. For there to be an overpayment under section 79:

    there must be a registered maintenance liability;
    CSA must have paid the payee an amount that it collected in satisfaction of the liability (section 76) or the payee is taken to have received an amount because CSA offset amounts between the payer and payee (section 71AA); and
    the payee was not entitled to be paid the amount or the amount is subsequently repayable by CSA to the payer because of a subsequent variation to the liability.

Examples:

CSA makes a payment of child support to M after it intercepts Fs tax refund. The ATO later advises CSA that the tax refund was for another taxpayer with the same name as F. M has received a payment under section 76 but was not entitled to be paid that amount. M has been overpaid and the overpayment is Ms debt to the Commonwealth under section 79.

CSA receives a payment from F by cheque and makes a payment to M, the payee. Fs cheque is later dishonoured. M has received a payment under section 76 but was not entitled to be paid the amount because CSA did not receive the amount from F. M has been overpaid and the overpayment is Ms debt to the Commonwealth under section 79.

M has received payments of child support from CSA. Ms entitlement is subsequently reduced because CSA allows Fs objection about the level of care that F has. M has received an amount under section 76 which is now repayable by CSA to F. M has been overpaid and the overpayment is Ms debt to the Commonwealth under section 79.

Ms child support assessment has ended as all the children are over 18. CSA amends the assessment retrospectively by replacing a default income figure with Ms taxable income as advised by the ATO. This amendment reduces the amount of child support that M was entitled to receive. M has received a payment under section 76 which is now repayable by CSA to F. M has been overpaid and the overpayment is Ms debt to the Commonwealth under section 79.


CSA can amend an assessment in relation to the days in the child support period(s) before a terminating event even though the case has ended (see Chapter 2.9.5 Amending Assessments). Any overpayment of child support arising from such an amendment is the payees debt to the Commonwealth. Similarly, CSA can recover arrears from a payer where CSA amends an assessment in relation to the days in the child support period(s) before a terminating event and that amendment increases the amounts payable.

A payee does not owe a debt to the Commonwealth where CSA makes a payment using funds transferred from consolidated revenue for top up.

Recovery from payees

The administrative and other measures that CSA can use to collect a specified amount owed under a registered parentage overpayment order by a former payee (who is now the payer of the order) are discussed in chapters 5.1 through to 5.4 of The Guide. The remaining information in this chapter relates only to overpayments that are recoverable from the payee under section 79 of the Registration & Collection Act.

If a payees overpayment is a debt due to the Commonwealth under section 79 of the Registration & Collection Act, CSA will contact the payee to discuss payment in full or a negotiated payment arrangement.

Negotiated payment arrangements with payees

Any payment arrangement will take into account a payees capacity to pay. CSA will explain how the overpayment occurred and the options available for repayment. Although the overpayment should be paid in a lump sum where possible, CSA will seek a payment arrangement that:

    reflects the payees capacity to pay;
    will not disadvantage the child(ren) by minimising ongoing child support;
    reflects the size of the debt and a reasonable repayment period; and
    takes into account the circumstances surrounding the overpayment.

A payee can pay instalments directly to CSA.

If a payee does not agree to repay the amount owed, CSA has statutory powers to recover the debt by:

    withholding an amount, determined by CSA, from future payments of child support (section 79(2));
    arranging for Centrelink to withhold an amount from any Centrelink payments to a payee (section 1228(2B) Social Security Act 1991); or
    withholding an amount from the payees income tax refund under section 72 of the Registration and Collection Act.

CSA will take all necessary action to recover an overpayment from a payee.

CSA can recover overpayments in a court with a civil debt recovery jurisdiction. However, CSA will not take legal action where an arrangement to pay has been made and the payee is complying with the arrangement. CSA will consider legal action if it has not been able to successfully recover an overpayment using its administrative powers.

Unlike a child support debt, a payees overpayment can be extinguished by bankruptcy. Where a person who is overpaid is discharged from bankruptcy the overpayment becomes irrecoverable at law (see Chapter 5.7.1 Non-Pursuit of debt).

CSA cannot use a section 72A notice to recover an overpayment from a third party (see Chapter 5.2.9 Collection from third parties).

CSA may decide not to pursue a debt if it is uneconomical to pursue or is irrecoverable at law (see Chapter 5.7.1 Non-Pursuit of debt).

Withholdings from future payments of child support

CSA can recover a payees overpayment by withholding an amount from future payments of child support. However, CSA can only make further payments to the payee if the payer continues to make payments to CSA. In most cases, this means that the payee must have made a payment arrangement and the CSA must have refunded the overpaid amount to the payer. If no refund is made to the payer, the payee will not receive any further payments until the overpayment is fully absorbed by the ongoing entitlement.
Refunds to payers

CSA does not have authority to refund amounts overpaid to payers where the overpayment is not recoverable from the payee under section 79.

Even if the overpayment is recoverable from the payee under section 79, CSA is not obliged to refund amounts overpaid until the amount is recovered from a payee. CSA will not refund overpaid amounts to child support payers until they are recovered from the payee unless:

    it will further the objects of the Act; and
    the interests of the Commonwealth are protected; and
    the interests of the payee are taken into account.

Furthering the objects of the Act

One of the objects of the Act (see Chapter 1.3 Objects of the scheme) is to ensure that periodic payments of child support are paid on a regular and timely basis. The Child Support Registrar must take this into account in exercising any discretion to refund amounts to payers.

Overpayments that are repayable by a payee under section 79 interrupt the regular and timely payment of child support unless the payee repays the overpaid amount immediately or enters into a suitable payment arrangement, allowing a refund to the payer. If no repayment or payment arrangement is made, the overpayment will be credited against ongoing maintenance until the credit is exhausted, meaning the payee will receive no payments until there is no overpayment left.
The interests of the Commonwealth

If the amount of overpayment is refunded to a payer (before recovery from the payee) the Commonwealth bears the cost until it recovers the amount from the payee. Whilst CSA has statutory powers to recover these debts, the debt may take years to recover or attempts to recover may be unsuccessful. CSA will generally not refund overpayments if it is unlikely to be able to recover the amount from the payee.
The interests of the payee

When an overpayment occurs, a payee may be able to seek to have the liability increased to reduce the overpayment.

A payee may be able to:

    object to the decision that gave rise to the overpayment;
    apply for a change of assessment; or
    make an application for SSAT review or to a court for an increase in child support payable.

CSA will advise a payee of their rights to obtain a review of decisions that gave rise to an overpayment and the options open to them.

In some cases, refunding an amount to a payer may affect the success of a payees action to have the child support payable changed retrospectively. Decision-makers, such as Senior Case Officers and Judges, may take into account any hardship to a payer in repaying an amount once a refund has been made and may decide not to make a retrospective change (Halge v Carroll (1998) FLC 98-002). Even if a payee is successful in gaining an increase it may be difficult to recover lump sums already refunded to a payer, particularly if the payer has expended the amount on day-to-day living or on assets that cannot be liquidated easily. This may cause hardship for both parents.
Ongoing cases

In ongoing cases, CSA will consider whether it is appropriate to refund amounts in order to continue regular and timely payments of child support. If the overpaid amount is refunded to the payer, any further amounts received from the payer for the ongoing liability can be paid out to the payee under section 76.

To balance the interests of the Commonwealth and to promote regular and timely payment of child support, CSA will refund amounts overpaid if all of the following conditions are met:

    the case is ongoing and likely to continue;
    the payer has a history of making full and regular payments and there are no new circumstances that indicate that this will change;
    CSA and the payee have negotiated an amount to be deducted from continuing payments of child support that will result in the overpayment being fully repaid before the case ends; and
    the payee is not seeking to have the liability increased retrospectively.

Before making a decision, CSA will examine the payers payment history and ask the parents if there are any changes in circumstances that may affect that record or lead to an early end to the case. CSA will also ask the payee if he or she is intending to take any action that could lead to a retrospective change to the child support payable.
Ended cases and ongoing cases where CSA decides not to refund

If a payees ongoing entitlement to child support has ended, CSA will seek to recover the debt from the payee and will refund any recovered amounts to the payer as and when they are received.

CSA will also seek to recover overpaid amounts from the payee in ongoing cases where it has decided not to refund overpaid amounts to the payer. CSA will refund any recovered amounts to the payer as and when they are received.

Where there is an ongoing entitlement but a suitable payment arrangement cannot be made with the payee, CSA will generally decide not to refund the overpayment but will offset the overpaid amount against the ongoing liabilities. The payer will not have to make further payments until the overpayment credit is exhausted.
Thanks all, they have said that being as the child in mention is 14, if they put the $4k down as a credit, then O wouldn't have to pay again (most probably for the rest of the childs time through Child Support) and this would cause the mother financial hardship.

The papers are with the SSAT, we received a letter stating that they received the papers and are going through them all, they needed all the same stuff (financial records, income and expenditure accounts etc etc) and they too send it all onto the mother to show her what he is applying for.

I will update you when I know more, but that's it at the moment.

We have also applied to the Commonwealth Ombudsman for them to have a look to.
Mike T

That was interesting reading.

In my case the CSA and SSAT have both made errors in the law and prior to there decision the csa
had taken money from my bank. I dont have a hope in hell getting the money back from my Ex as she will cry poor.
As far as I can see that the CSA have made this mistake, so why cant I sue the CSA for the money.

Storez.  Becarefull what you say to the SSAT when you answer there question. I have been there a few times now and all they seam to do is back up the CSA decision and find extra things in your financials to claim against you. They will not give you time to back up any of your claims as they just want to get you in and out the door as fast as possiable.

Mick
Fingers crossed, we have the phone interview next week  O_o
Dont do the phone interview.

TELL them that you dont have the time for a phone conference.

TELL them to put there questions in writting.

That way you can give them the correct answer without being put on the spot, because they will put there words into your mouth and they will get the answer that they want to here and it may not be your correct answer.

DEMAND that they put it in writting.

That's correct as you can only appeal a SSAT decision on a point of Law not if they got the facts wrong!
Be careful.
The system is a joke
It shouldnt have to go to the SSAT.

Why cant the CSA take the responsibility and get the all facts correct and then have a 1 on 1 interview and get some kind of compromised decision that is excepted by all parties.

We all know that the SSAT take sides with the CSA decision, so you have to be very carefull in what you say.
I am sure there are words out there that you could say to the SSAT that will get you a date in the court because this BS about an error of the law is an invertation for a solicitor to suck thousands of dollars out of you and if you dont have the funds to cover it, you loose your case to fight on what you beleive should be a fair, just and equitable decision   Ha Ha Ha Ha

Not


With C$A there is no compromise. If you are the payer, they will do their best to extract as much as possible from you.
Secretary SPCA said

Objections are supposed to come with some significant explanation (based on new COA decision rules) so you should already have their proper and full explanation in writing.

Secretary SPCA, could you please elaborate on the "new COA decision rules". Since when have the rules become operational. Any reference to the source will be much appreciated.
Can you ask that there be no phone conference? We were under the impression it was phone conference only and that was it... :S
storez said
Can you ask that there be no phone conference? We were under the impression it was phone conference only and that was it… :S

In your Child Support Appeal Form you were asked which type of hearing you'd prefer. There are two options you had to select from: 1. In person 2. Telephone/Video conference
My telephone conference was all about additional information that had to be supplied to the SSAT prior to the hearing.

They asked me and my X to supply all the relivent info so they could get a better understanding of the income from both of us.

At the hearing my X didnt supply 8 months of financial statements and got a smack on the hand.
I left out 1 bank account detail that had $7 in it and had been at the balance for about 3 years, didnt I get scutinised over that.

Point being is that if you ask for all written information to be supplied, then the little things that they ask for wont get left out because you have the written evidence.

We can't do a in person meeting as their office is over 3 hours away and we both work, kids etc… So had to do the phone. Hopefully O will make sure he has a pen handy to write what they need down.
This just sounds like too much fun  O_o
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