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Reason 8 - Capacity to Earn

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I have a new question guys in relation to my previous posts…

I'm know that the income produced by my Ex's husband cannot be assessed when CSA comes up with her "reportable income" for my CS but another angle I'm working on and you guys might be able to offer some thoughts, is that since she commenced a recognised defacto relationship and then marriage to this guy, he started a personal training business.

Now, what I would like to investigate is (its like everything when you go up against the CSA, a long shot) the fact that in between my Ex commencing a legal defacto partnership and legally formalizing her marriage to her husband, he started his own Personal Training Business which is still running post marriage. 

As the legally recognized spouse of her husband, any income produced from this business would be used in contributing to the financial benefit of my Ex and their relationship, so in effect giving her access to more financial resources.

So I cames across this in the CSA legislation:

"Although a parent's most recent taxable income is used in the child support formula, CSA can look beyond the parent's taxable income when considering an application for a change of assessment. Income, earning capacity, property and financial resources which do not necessarily form part of a parent's taxable income can be added to or excluded from a child support assessment (Carey and Carey (1994) FLC 92-489).

Additional income, property or financial resources  namely "receives income which is not assessable or is exempt from tax"

What do you guys think, long shot or something worth throwing at CSA? or am I misreading the intent of the law?

You have got it correct - C$A look for this all the time to find payers who are trying to hide income in a partnership etc…

Under the C$A legislation his income could be seen as a financial resource as you have cite that she has access to.

Do you know what sort of entity they are using to runt he business? If a company you can do a search with ASIC to see who the owners and shareholders are.

Only problem is, because you are the payer C$A will probably ignore your requests as your are trying to reduce collection as their mandate is all about increasing collection.
Thanks Fairgo.

I guess what I'm trying now do is construct arguments that would get me somewhere potentially further down the appeals chain if you know what I mean..

Its plainly obvious from reading these forums that my appeal to CSA will be ignored or denied regardless of whether its legally valid or not and most probably in the SST too, maybe I might be lucky in AAT but thats 50/50 but I intend to see this right thru to court if need be, that's how strongly I feel about having to pay more CS that I should, especially for another man's child!
JWB - I believe the COA, Objection and SSAT processes are mostly a waste of time and are designed for greater collection, and appealing a SSAT decision only gets you back to the SSAT for them to make another decision.

If you want to get your appeal to a real court you need to satisfy the criteria in section 116, which means, you need to put an application for a Change of Assessment in that will be deemed to complicated by C$A and your objection has been refused.

However getting C$A to rule under section 98E or 98R would be almost impossible as it means you can take them to court and they don't like this as they tend to lose a lot when in court.

So if C$A refuse or ignore your requests or COA application, I believe you could still file an application to the court arguing that your application should be accepted as it is not in C$A's best interests to rule under section 98E or 98R as it would give you immediate access to a court to make decision instead of the merry-go-round SSAT process.

What do you think? Is it do-able?
I think it is do-able…

My appeal letter is already 4 pages long with multiple reasons why I am is for her not declaring income…two seperate issues are under reason 8..possibly more if they

I'm quoting legislation, CSA quidelines and anything and everything I can…I even have thought about disputing the SCO as to whether he even has the legal skills and qualifications to interpret the legislation to make a decision..just like a lawyer needs official qualifications to practice law..

I have one issue I'm contemplating raising that would possibly result in a direct passage to the courts..if you check out the post from "UNwantedFather"- "Unfair Child Support due to Ex's New Baby"…

Read "IsntLIfeGrand's" last post before mine and he brought up an interesting observation in some legislation..see what you think and let me know..I added my thoughts to what he was asking but then I looked at it from another point of view later on after I posted my comment…I'll whisper my thoughts to you…
I am not sure if this line of argument is still being read but will write the following anyway because it relates to Reason 8. I have only written a couple of previous comments which can be found - this is slightly similar but refers to Reason 8 more specifically. I am interested in the previous observations that the CSA is in the business on collecting money, not justice. I have never quite thought of it this way but it does indeed fit their behaviour. They have nil interest in arguments and objections from the payer, only caring about what they can collect. My payments have risen from about $200 to about $550 in less than a few months, nothwithstanding my former wife's and my own financial status not changing. Well that's not quite true actually. She has establsihed a vibrant and successful local business that earns a tidy income - the first since she tossed in her job in the corporate sector on settlement. So, she is laughing - living on OUR taxes and my income and skimming a handy income of her own. Good work and the CSA tolerates all this., And NEVER NEVER go to the SSAT. They entrap people - they claim in their preamble to set out to broker a deal and bring the case to an agreed solution but then you will be trapped into: (1) a full-fledged hearing that will NEVER go the payer's way (unless there is an administrative error (to which she can object anyway!); (2) most likely a rise in payments (mine was more than a 100% increase and (3) a gag that will silence you for life. They'll be ever so polite and you'll get a free glass of water though - it's not all bad. Avoid them!   
That's right mate - she can pull a small salary and keep a part pension so she can get all those discounts, get her FTB whilst you top it up with some child support. As long as she maintains 51% care she can live like this whilst you slave away in full time work with little flexibility or choice in the matter.
Yes, you're 51% estimate on care is almost precisely right by the way - she has slightly more contact time than me in the school term (one day a fortnight). Note that the Family Court and the CSA after them (not to mention all the bleeding heart feminist social commentators) will go on and on about how the amount of time is not important, it is a quality of time. In my court hearing, a Registrar said to me ("it's not about the number of nights") and yet the CSA predicates all its calculations on NUMBERS OF NIGHTS. Men must beware here, they'll try to sell you this pap knowing full well that every extra NIGHT will inflate the wife's payments. And the real point I wish to make, is that we have equal weekends and holidays (I might add, not because she was generous but because she did not want too much responsibility for our child). So, the point is that the leisure time (non-school days) are not even the basis for payments, its total nights.   

Lodged my appeal

Well guys, I finally lodged my 4 page appeal and CSA rang back in response, this it what they said…

Firstly they agreed that her salary scarificing would be investigated, which is a positive but whether they actually do it, is another matter.

Secondly my Reason 8 appeals where denied instantly. They told me under no certain circumstances they would make it impossible for me to prove and they will never grant it.

They kept saying that because she is pregnant, they will never rule she must get additonal income for extra work, when I advised them I wasn't seeking that but I was arguing that she has access to extra financial resources thru her husband and their Personal Training Business and that as he is the biological father of her child, so should be responsible for the shortfall in their income, CSA pulled the old "we don't use his income in assessing CS", ignoring the fact its a joint business and told me to P**S off.

When I read legislation that is available on their own website for gods sake backing my arguement up, they still denied I was right!!!!

Next they denied my 98E & 98R request as I knew they would, they say the case is straight forward and a SCO will handle it, when I asked them if the SCO was a qualified legal practitioner (lawyer) considering he was making a legal ruling based on Federal law, they refused to answer me!!

They then said I could lodge my own COA and then tried to put me off by describing it as a witch hunt and if I persued it I would be opening up a can of worms and could have my CS increased once they probe every aspect of my financial affairs. They also said the refuse to rule on my Reason 8 unless I lodge my own COA..

Both the COA team and the complaints team knew I was right in everything I said but as far as they are concerned they dont care if she is rich, poor, pregnant, working or not working, whether legislation backs me up or not, they are only inetersted in how much she is earning, so if she says her income has dropped from $51K p.a to $36k p.a, I pay more!!

So now I need to consider my next step.. So can anyone help me with these questions?…

(1) If I lodge my own COA, how bad is it actually?

(2) Does the SCO have to be legally qualified?..I would tend to think he would have to be wouldn't he??, I cant just walk into court and start making legal decisions!! So could I actually legal challenge his right to make decisions?

(3) Where does the legal ombudsmen fit into the scheme of things?

(4) Any suggestions on what to do?

Thanks guys.
I have not idea except to say that the CSA is not in the business of justice, nor due process, so don't get your hopes high along those lines. I say this very advisedly, not as an insult. They have little integrity and an underlying culture of punishing men if at all possible. As for the qualifications of their staff, I doubt they have any criteria. They'll say that they have limited powers and if you want to appeal, there are courts for that (knowing full well that they are out of most people's reach). Beware of a CoA - it is dangerous teeritory and is possibly playing into their hands as it gives them a mechanism to turn the screw. Publicity is the best approach - keep putting the facts of these cases out into the public domain and don't relent. That will slowly lift the scales and either embarrass them into change or persuade them that inevitably, a big fish will take them on in the courts they so happily recommend, and win. I wish you well.     
JWB, i would strongly recccomend that you speak to your local member (MP). That phone call that tou made- the descrption they made of the CoA process was quite amazing. If you recorded this and sent it to Today Tonight or A Current Affair then they would love this! Think of it- One rule for one party and another set of rules for another- the CSA would squirm with embarressment. Or maybe write a letter to Alan Jones- he loves this sort of thing and he will read your letter- has has a reputaion for reading all corro sent to him. I would consider this angle if you are desperate. If a governemnt department is publically embarressed then they will be more reasonable. It worked for Paul Hogan last week- the ATO let him go back to the USA by cancelling his DPO.
Yes, this is a tragic indictment but what familyman2008 says is quite true. It has come to this sort of shabby tabloidism (they're my words of course, not his) to achieve change when a rational conversation based on fundamental ethics would help so much. The impediment to this happening more often is that most people are intensely private and we do not have a cutlure of celebrity, by and large. This is a firewall that the CSA & SSAT use to protect themselves. Easy for me to say but be courageous and do it. Ask for names to be changed to protect the children, at least?     
JWB4273 - Pity you spoke to them over the phone as I'm guessing you wont have anything in writing from them over this?

If you lodge your own COA then you will need to be confident that there is nothing in there that will bite you in the backside, as they will try to increase your liability after they advise your ex to respond to your COA with a counter claim which will then justify their actions against you. They need to justify their jobs by showing that in everything they do, collection has been increased.

SCO qualifications are not relevant as they are acting on behalf of the child support registrar.

I was on the phone to the Ombudsman today and they informed me they will only get involved in a child support decision after the objection and SSAT  processes and not before.

I think the principle that parents have to support their children is not being applied fairly when you have to to pay more child support because the ex is having another child with a new partner where it is clear that they have the financial resources to do so.

I think this might be a question of law and may be accepted by a court after a SSAT appeal.
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