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Section 72A

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Child Support issues around garnishee orders and S72A - Entity, personal or company

Hi all, I'm back once again.
More bulling tactics and harassment by the incompetent CSA.
They have lodged a Section 72A notice against me ( My name ) to my Real Estate who collect money from a rental property.
The monthly statement and payments are in my Company's name and the payment are then paying of a mortgage.
I instructed the Real Estate that the 72A notice is against my name and that you are paying my company and you can not make the rental payments back to the CSA. The real estate have sort legal advise by phoning the CSA and they have told the real estate that they have to pay or they will be in trouble, hence they are paying the CSA.

I am a write only customer to the CSA agency, yet they continue to harass me with phone calls. I have yet again had a right gut full of them, so I decide to phone my case worker who would not listen to a word that I said and would not agree to the law that is written in the Act.

Section 5.2.9 states the following  - Funds held in a bank account that is in the name of a company are held by the company as a legal person, not by the child support debtor. The funds in such an account cannot be said to be payable to the child support debtor, even if the child support debtor is the sole signatory to the account or the sole director or shareholder of the company.
Before issuing the notice, the whole of the debtor's financial circumstances must be considered.

A notice under section 72A cannot be effective against a joint bank account, an Entity ( Company )  because it is “not possible to identify any portion” as belonging solely to one owner (DFC of T v Westpac Savings Bank Ltd 87 ATC 4346).


The notice must not cause a default to occur on the debtor's regular loan repayments.

Well blow and behold. I Told my case officer all the above and she totally refused to comment on the facts.
I asked to be transferred to the complaints department where by that person agreed with my case officer and also ignored the facts above.
They then advised me that I must lodge a Income & expenditure form, where by they will then see if I can pay the child support debt. Totally ignoring the Section 5.2.9
I then wrote a letter to the Ombudsman in the hope that they would contact the CSA to make the Revoke there Section 72A. The Ombudsman agreed with my claims and said that I have a very strong case against them, so I need to get further documents from the AAT and waste more of my time in an appeal when the CSA refuse to do there job to the Law.

Does anyone here have any other suggestions.
Have you thought of sacking the real estate agent and either manage the property yourself on behalf of your company or find a private agent to manage it?
You are correct in following the Act at the Guide is not law so you should go through the objection and appeals process and once you get to the AAT, they should follow the Act.
In doing so you would need to keep a record of your costs such as taking leave from work or forgoing earning opportunities to attend to these matters, so once you have completed the process and hopefully won your case, you can then file a claim against the CSP for defective administration via CDDA process. I have been there and done it and although it took some time, my claim was paid.
Hi Taylor, having read your post I am not sure what you are really after when it comes to opinions and  or advice.  I think that if money is paid into a business account and not actually nominating a specific wage structure for an employee or otherwise, then I agree with section 72A.  On the other hand, I suppose you cannot expect the Real Estate Agency to get involved in your personal business, however in some way it is still you earning an income of sorts from your only source or another source.  The legalities in this matter might be better explored, and I think if what you have stated re the Ombudsmen's comments are correct then I would pursue that line of negotiation and see where to from here. (It seems like it might be your best option at this stage perhaps)

With regards to the information you have shared there are a few anomalies for the readers that might lead to further questions especially if you were going to pursue legal action:
 * Is this money the only income you earn? You have not mentioned anything in relation to this, and from my experience CSA will target the wage of the parent concerned.
 * As stated by you:"Before issuing the notice, the whole of the debtor's financial circumstances must be considered." …. have they done that? you have not said.
CSA and DOCS are government department who do not work with emotions, they are machines with a job to do, and that is what they do very well.

It might be of some advantage to you to seek legal advice, and there are some members on FLWG who might be of more assistance to you in that area.

Cheers.
I have found that the CSA staff are supportive and helpful as far as they can be if customers are very polite and patient , even if you do not agree with them.
At times it is frustrating  as different staff members at CSA can give you different answers dependent upon their level of knowledge. You can lodge a departure from the Child Support Assessment if you believe you have sound legal grounds. :thumbs: 
The facebook group "Child Support Australia - Time for Reform and Fairness." might be able to help.
Do be aware that the CSA may be monitoring it.
Basic Instincts said
Hi Taylor, having read your post I am not sure what you are really after when it comes to opinions and  or advice.  I think that if money is paid into a business account and not actually nominating a specific wage structure for an employee or otherwise, then I agree with section 72A.  On the other hand, I suppose you cannot expect the Real Estate Agency to get involved in your personal business, however in some way it is still you earning an income of sorts from your only source or another source.  The legalities in this matter might be better explored, and I think if what you have stated re the Ombudsmen's comments are correct then I would pursue that line of negotiation and see where to from here. (It seems like it might be your best option at this stage perhaps)

With regards to the information you have shared there are a few anomalies for the readers that might lead to further questions especially if you were going to pursue legal action:
 * Is this money the only income you earn? You have not mentioned anything in relation to this, and from my experience CSA will target the wage of the parent concerned.
 * As stated by you:"Before issuing the notice, the whole of the debtor's financial circumstances must be considered." …. have they done that? you have not said.
CSA and DOCS are government department who do not work with emotions, they are machines with a job to do, and that is what they do very well.

It might be of some advantage to you to seek legal advice, and there are some members on FLWG who might be of more assistance to you in that area.

Cheers.

Its  a long drawn out process. Numerous letters to the CSA and there refusal to respond to any letter is very frustrating.
* My only source of income is through the business. The rental does not produce an income, the rental money pays for 3/4 of the monthly loan repayments.

* As stated by you:"Before issuing the notice, the whole of the debtor's financial circumstances must be considered." …. have they done that? you have not said
  No they have not. They did it back in 2008 stealing money from my business account and the mortgage account. They have done the same thing on this matter and now they have contacted my previous accountant asking them for information about my company details so they can issue a section 72A notice against the company.
Its amazing how they can take the Law into there own hands and ignore the Law as it is written.
  
Are you up to date with your tax returns??? They don't like it if you are behind.
Guest said
Have you thought of sacking the real estate agent and either manage the property yourself on behalf of your company or find a private agent to manage it?
You are correct in following the Act at the Guide is not law so you should go through the objection and appeals process and once you get to the AAT, they should follow the Act.
In doing so you would need to keep a record of your costs such as taking leave from work or forgoing earning opportunities to attend to these matters, so once you have completed the process and hopefully won your case, you can then file a claim against the CSP for defective administration via CDDA process. I have been there and done it and although it took some time, my claim was paid.

I did sack the Real Estate after showing them the CSA Law as its written and they refused to follow my suggestions as they had an obligation to fulfil with the section 72A notice.
I am in the process of a CDDA but I just need a dam good solicitor who knows the Law
So who's name is on the title to the house. Is it yours or the company. If it's yours then the CSA would be in the right.
We know the law extremely well when it comes to Child Support matters. There are many questions in your posts that leave gaps. What sort of Company is it? Are you a  Shareholder, or Director and an employee? Are their other shareholders/directors employees? Do you pay weekly or fortnightly wages and are you paying PAYG.  How is your income structured? Regardless of protestations income is income at the source so if you are collecting rent from a rental property and it goes into any entity it is income to that entity. If the property is in your name it is your income. Regardless of what it is paying contemporaneously and or any other outgoings. ie mortgage. This is especially so if you simply use your current account through the company bank account to ebb and flow daily operating funds. It is simply a recipe for disaster to use the company (pty Ltd) account as a slush fund for daily expenditure OR any sort of entity. I have seen case after case where business owners or majority shareholders treat the operating account as their own when it is not. This gets you into strife with CS and with ATO.

The big question is what sort of arm's length transactions are going on. Are you simply creating entities and or conducting transactions through entities to avoid Child Support or to reduce amounts. Are you running a current account where you take lump sums from the company into your own personal account and operate your life expenses and repayments through that?  You cannot mix funds without significant problems.

The Realtor, in this case, was doing what they were instructed to do by CS  via the s72 notice. it seems via way of a garnishee order which CS issue many. Often they do issue them against the wrong entity. It was not their problem to query it but yours. Dumping the agent was hardly a reasonable approach as the order required them to deduct from rental income. The rent income would have gone into their consolidated rent account earmarked for you and been paid to your nominated account LESS the order amount. Are you suggesting that the Realtor rent receivable account was a shared or mixed funds account and as funds were mixed therefore your rental income was unable to be garnished?

Child support is straight forward where you have a PAYG based regular income. It becomes very problematic where you have rental properties, sole trader business arrangements, Pty Ltd or Offshore companies or any entity that generates income from multiple sources and where the Payer is not clearly defined through business accounting practice. Few Payers understand the impact of depreciation on calculations, and as well as a potential earning ability where CS consider payments are low and where the Payer (or the receiver in cases) has an ability to earn more.

If you want to write up the scenario and exact circumstances we will take a look at it. You can send a private post and attachment.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
I totally agree with you taylor. How can this agency ignore the Law and just take the Law into there own hands. Hope that you can get some solid advise on this matter as I am going down the same path. 
Twilight said
So who's name is on the title to the house. Is it yours or the company. If it's yours then the CSA would be in the right.

I here you and I understand what the CSA can do.

But my point is that I am reading the CSA Law and it tells me the following. I believe that they have Breached that Law.
Am I not understanding the written terms of the CSA Law ?
or is this matter Defective administration ?

A section 72A. Before issuing the notice, the whole of the debtor's financial circumstances must be considered. The debtor must be allowed ordinary living expenses and the notice must not cause a default to occur on the debtor's regular loan repayments.  
How does the CSA gain knowledge that you have funds in an account ?

How do they distinguish if an account is in a joint name ?

Are they reading information from your tax return or gaining knowledge from the ATO ?

Are they able to look into your banking details - Credits & Debits - to see what funding transaction are taking place ?
 
72A should not be issued on a speculative or 'fishing' basis.

What does that mean, How does that stop the CSA from issuing the notice. ????

What is stopping them from just sending the notice out
How does the CSA gain knowledge that you have funds in an account?

They have access to bank accounts.

How do they distinguish if an account is in a joint name?
Not sure but I guess that information would be available by accessing the account.

What is stopping them from just sending the notice out?
Theoretically, the requirement of any public servant to follow the law. However,  in practice the CSA, the DHS and even the Attorney General can and have been proven to do nothing to prevent public servants from following the law. In fact they have even supported such anarchism.

That is I still believe that that Lisa Lambert is still used as an associate even though it has been brought to the attention of the above mentioned bodies, and others, that Lisa Lambert actually invented the existence legislation as part of her multiple abuses of power in an attempt to defraud a parent assessing that a sum of $200,000 should be treated as $260,00 by grossing up that amount as if it were a flexible benefit.

Extract taken from the notification sent :-

In a Change of Assessment decision letter, dated 20th November 2014, Senior Case officer Lisa Lambert, Delegate of the Child Support registrar, states:

Lisa Lambert said
"The Act requires the department to use the gross income when calculating the financial support that is to be provided by the parents. This being the case, net income must be "grossed up" using the relevant taxation scales"


The fact is that the legislation, the Child Support Assessment Act 1989, does not state this. In fact, the legislation does not contain any instance of the word gross nor does it contain any instance of any word that contains gross as part it. The statement above is a fabrication of legislation existing and an act of abuse of power of the highest magnitude by the Department of Human Services via the CSA.

The CSA, as an agency, act under legislation. To state that they can do otherwise under the guise of "invented" legislation is very obviously wrong and perhaps even contrary to the constitution of Australia. It is also a form of anarchy.


Considering that I have been involved and thus scrutinised just 2 departures from administrative assessment, the other itself also a complete travesty (the classic being an admittance that both parties contribute equally to the company but that the payer conveniently earns well over 10 times the other party as income). as per :-

. SSAT reached a conclusion that both the applicant and the applicant's spouse "genuinely work in the xxx equally", yet SSAT have apportioned $46,697 of the $50,058 profits, as the equal share of the applicant and that for the equal share, as per the SSAT finding, that the applicant's spouse should receive $3,551.


Then you can guarantee that the CSA pervert the cause of justice 100% of the time, or to use CSA methods of fair(sic) calculation, some 1300% of the time and of course being given the role of judging there has to be some application of grossing up that can be invented to be then applied.
Not sure but I guess that information would be available by accessing the account.

If this is true, what gives the CSA the Power to access Credit & Debit information in a Company Account.?

How can I find out?
Who do I need to talk to?

EG:  From my Company Bank Account a Debit on the 24th June to a Trading account.
18th July  s72A notice issued to the Trading account and my money is gone.
If this is true, what gives the CSA the Power to access Credit & Debit information in a Company Account.?

The power is that they have access, I believe, to bank accounts. However, they may well be abusing their power. Simple fact is there is little if anything that is specific if you follow various paths.

For example you would probably start with the guide as per :-

CAS Guide - 6.2.4 said

6.2.4 Information Gathering Powers under the CSRC Act Context

The Registrar has statutory powers to obtain information for the purposes of collecting child support.

A court can also use these powers to obtain information if a payee is exercising his or her right to enforce a debt via court proceedings (see 5.4.7).

Act references CSRC Act section 120, section 121A CSRC Regs section 27, section 33 Obtaining information

The Registrar or a court can require a person to: provide information (section 120(1)(a)), attend and answer questions (section 120(1)(b)), and produce documents (section 120(1)©).

These powers can only be exercised for the purposes of the CSRC Act.
  • Example:
  •  
  • The Registrar must not use the powers contained in the CSRC Act to obtain information to verify an estimate of income.

A person who is required to attend under section 120(1)(b) (other than a payer, payee, or their representative) is entitled to expenses (CSRC Act section 120(2) and CSRC Regs section 27).

A notice must also be properly served on the person (see 6.7).

A notice must give the person a reasonable time to comply. What is a reasonable time will depend on the type and extent of the information sought.

The Registrar will not collect information that is not necessary for its purposes or intrudes unreasonably on a person's privacy (see information about the Privacy Act 1988 in 6.3.1).

Whilst it can be appropriate for the Registrar to seek information from other departments via informal arrangements, a notice can be issued to another government department. However, there will be instances where secrecy provisions and/or privacy obligations will prevent other departments from disclosing information in the absence of legal authority to do so.

The Registrar may collect and use information from third parties (see 6.3.4).

Obtaining information from residents of reciprocating jurisdictions The Registrar can request a person who is or was a resident of a reciprocating jurisdiction, or request an overseas authority of a reciprocating jurisdiction, to: provide information (section 121A(a)), attend and answer questions (section 121A(b)), and produce documents (section 121A©). A notice under section 121A can be given to the payee or payer in a reciprocating jurisdiction by giving it to the relevant overseas authority (CSRC Regs section 33).

https://guides.dss.gov.au/child-support-guide/6/2/4


Which would lead to :-
CS Registration and collection act said
120  Obtaining of information and evidence

             (1)  The Registrar may, for the purposes of this Act, by notice in writing, require a person:

                     (a)  to furnish to the Registrar, within a reasonable period, and in a reasonable manner, specified in the notice, such information as the Registrar requires;

                     (b)  to attend before the Registrar, or before an officer authorised by the Registrar for the purpose, at a reasonable time and place specified in the notice, and then and there answer questions; and

                     ©  to produce to the Registrar, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.

https://www.legislation.gov.au/Details/C2018C00277

and also
CS Registration and Collection regulations said
27  Scale of expenses

                   For the purposes of subsection 120(2) of the Act, the prescribed scales of expenses to be allowed to a person (other than a person who is a payer, payee or a personal representative of a payer or payee) required to attend under section 120 of the Act are as follows:

                     (a)  the amount provided for in the High Court Rules (as in force at the commencement of this section) for expenses of witnesses;

                     (b)  if the person is required to be absent overnight from his or her usual place of residence–such amount as is reasonable for meals and accommodation.


(33 is irrelevant)

https://www.legislation.gov.au/Details/F2018L00313

How can I find out? Who do I need to talk to?
I have no idea, perhaps you local Federal MP but odds on they will do nothing. Of course if any Government official at any level was ethical then they would ensure that those who they serve are served and would therefore be able to find out the specifics by asking any such official.
 
Twilight asked a very important question. The rental statements and payment maybe made to the company, but it does not mean the company has title to the property.
Taylor do you own the property under your personal name?
if the CSA did a title search, they may have sent the 72A notice based on this.
good luck anyway.
 
A copy of the current document issued to my banking institution which is in the Company name. The CSA have requested the following and obtained a statement on the Company information…… What gives the CSA the right to do this ?

 In relation to  ( My Name ) , either solely, jointly or severally with any other person/s or entity, provide the information and documents below.
If the above named is a person/s; In relation to means about the abovenamed person/s and for any business entity (excluding publicly listed companies or registered associations) of which they are an owner, principal, partner, trustee, director or any other position of control, that they operate either solely, jointly, or in partnership with any other person/s or business entity.
1.   The current or last known residential, business and postal addresses and any current or last known business, residential and mobile telephone numbers for the abovenamed.
2.   In respect of each account held by your organisation supply:-
(a)   the account number;
(b)   the type of account;
©   the name(s) in which the account is held;   
(d)   the name(s) of all signatories to the account;   
(e)   the balance of the account at the date you respond to this notice;   58 (1)   the source of regular deposits if known, eg salary payments;   ~
(g)   a list of all transactions that occurred in the 90 days prior to the date you respond <2 to this notice where statements issue on the account;   
(h)   a list of all transactions that occurred in the 30 days prior to the date you respond 2 to this notice where statements do not issue on the account.
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