Taxable income versus bank account
I have a number of questions:
1. Is the Taxable income of a person all that the CSA are required to make an assessment on?
For instance, if someone obtains money from cash jobs and/or drug dealing and is silly enough to put the money into their bank account, can I use the person's bank account to prove that the person has a greater income than they are stating?
2. In an 'outline of case', can I say that I am relying upon a witness that I do not have an affidavit from?
To elaborate, I have someone who is willing to testify to the fact that they have known this person as a drug dealer, but the time has passed to submit an affidavit to that effect, so can I still call upon them as a witness if I state it in the 'outline of case'?
3. Are trips to the Hydroponic shop showing up on a bank account along with my own affidavit stating that the person is a drug dealer enough evidence to suggest that this person is or has been a drug dealer?
4. If the person says that they have obtained money from an inheritance or from their parents, is it enough to just say that or do they need documented evidence to prove it?
The other party has submitted affidavits from their parents and them self stating this, however there is no documented proof, do I ask for the them to produce this in court or do I just rely upon the magistrate having the brains to read between the lines?
5. Are trips to the local pub and money withdrawn there to the amount of $18,000 in one year relevant and if so how do i word this as a question when I attend court?
The person in question has stated that he wins money on the pokies at the pub and that is where he gets his extra money from, however I can only see money going out of his account when he goes to the pub. Occasionally there are cheques deposited, which he claims are winnings (along with the occasional cash deposit) but on his bank account there is no identifying information to say where the money came from.
6. Do pubs have to record who they pay and the amount and can I subpoena this information?
7. Or should I leave that up to him to prove by asking him at court?
Thank you to anyone who can help.
Under formula based assessment Yes. If a departure is made from formula based assessment by the way of the change of assessment process then not necessarily.
Jacqwil said1. Is the Taxable income of a person all that the CSA are required to make an assessment on?
I think that you can. However, I believe that you in your affidavit you would have to say what evidence that you are relying upon and that the witness would have to be made available for cross examination. However, as I'm not as knowledgeable as some in regards to family law, then I'd suggest waiting for more input.
Jacqwil said2. In an 'outline of case', can I say that I am relying upon a witness that I do not have an affidavit from?
I doubt it very much. If you think about it, if that were the case, all the police would have to do is arrest any person who visits such a store. However, if you're talking about Family Law, then a lifestyle that involves drugs is not necessarily a string argument.
Jacqwil said3. Are trips to the Hydroponic shop showing up on a bank account along with my own affidavit stating that the person is a drug dealer enough evidence to suggest that this person is or has been a drug dealer?
Possibly not, it would very much depend on where it is used, which is hard to ascertain, as you appear to be jumping between CS related questions and Family Law related property settlement and Family Law care related questions. Furthermore, from your example it is likely that an answer to that question would not necessarily be the answer you should be looking for as evidence from multiple sources, certainly in regard to Family Law would add weight to that piece of evidence; sometimes contrary to the expected use of that evidence (e.g. it could be evidence of a conspiracy rather than evidence of the event itself).
Jacqwil said4. If the person says that they have obtained money from an inheritance or from their parents, is it enough to just say that or do they need documented evidence to prove it?
Relevant to what? A drinking habit? Spending money? A person trying to control that person's pursuits? A person stalking another? and the list goes on. I think you'd have to be far more specific.
Jacqwil said5. Are trips to the local pub and money withdrawn there to the amount of $18,000 in one year relevant and if so how do i word this as a question when I attend court?
I believe that you have to have the courts permission to subpoena. A search on here for subpoena will very likely clarify this.
Jacqwil said6. Do pubs have to record who they pay and the amount and can I subpoena this information?
I'm not at all sure about this. You may not be allowed to ask for something without good reason unless it is in the affidavit. It could perhaps even result in a reason for adjournment. Again assuming this is property settlement (you very likely wouldn't be going to court for CS without having gone through COA and then SSAT (Social Securities Appeal tribunal), in which case I'm very surprised at the first question, and then it would only be on a matter of law, in which case such evidence could well be considered as irrelevant to the appeal as SSAT would not have based their findings upon this evidence, an exception would be if you are taking the matter to court for COA greater than 18 months ago).
Jacqwil said7. Or should I leave that up to him to prove by asking him at court?
I think you could do far worse than to rethink your questions and pose them detailing the context in which they are to be applied.
Further information from Jacqwil: I am seeking that the court depart from the assessment made which is older the 18 months. I have a final hearing at the end of this month. I have subpoenaed the respondents bank account records and found the there are cash and cheque deposits that show that his bank account is substantially more than the assessment figure the CSA is basing their assessment on. For instance, one year he deposits over $80,000 and in that same year he was assessed to pay Child Support on a figure based on around $24,000. So I guess I am asking whether or not under these circumstances (being that he is obviously not declaring all of the money he has to either the Tax department or CSA) I have grounds to ask to take leave or possibly an even better question would have been that considering we are at the stage that there will be a final hearing, how best to draw the magistrates attention to the undeclared money. I have written affidavits pointing out these discrepancies and included documented evidence outlining the deposits in the form of his bank statements, so what else can I do?
Further information from Jacqwil: I have spoken to a solicitor today and they have advised me that I cannot call on or list any witnesses that do not submit affidavits. I am aware that if the case is adjourned then I can seek leave from the court to submit more affidavits.
Further information from Jacqwil: I am not sure what a string argument is, however, I am merely trying to back up my affidavit about saying that I have known this person in the capacity of a drug dealer. We have been through Family Law court and I got nowhere with this argument because I had no evidence to prove that he is a drug dealer because he has no police record. And I understand what your saying, just because I stand in the garage doesn't make me a car. Once again I am simply trying to put it out there for the magistrate to have the knowledge of his trips to the hydro shop rather than to use it as concrete evidence that he is a drug dealer.
Further information from Jacqwil: I have no idea what you mean about 'evidence of conspiracy' and I fully understand that my questions are vague, I am struggling to put this whole case together as I am clearly not a solicitor. The respondent has said in his affidavit that he has obtained monies from various different sources, including winning money at the pub, his parents etc. He has an affidavit from his father stating that he has given the respondent money, however the father has not backed it up with documented hard copy evidence. So I guess a better question to ask is, will the magistrate give much weight to his argument if there is no documented proof? Further to this, could I ask them (the father and the respondent) to produce the documentation?
Further information from Jacqwil: OK, I guess I am clutching at straws a bit here. I have noticed through examining the respondent's bank account records that he has spent well over $18,000 at the pub in one year, well actually it would be more accurate to say that he withdrew $18,000 at the pub (He could say that he withdrew the money and didn't spend it there I suppose) I am feebly trying to draw attention to the fact that the respondent goes to the pub a lot and takes a lot of money out when he is there and hopefully when questioned he will admit to spending the money there, who knows?
Further information from Jacqwil: Yes I have looked into the possibility of obtaining a subpoena and verifying the respondents claims about winning money at the pub.
I think you could do far worse than to rethink your questions and pose them detailing the context in which they are to be applied.
Further information from Jacqwil: Thank yo for attempting to answer my questions, I realise that I am being vague, it helps to know which court I am trying to address. I am in the Federal Magistrates Court and it isn't a property settlement, it is purely a CSA matter. I know I am confusing the situation with all of the other stuff, so think about it in terms of a financial matter. As I previously stated, I have asked the court to make a decision to ask the CSA to amend and depart from their previous assessments, and yes it is for the last 7 years. I used the CSA legislation-
112 Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
118 Orders that may be made under Division
(g) an order varying a parents adjusted taxable income;
I didn't know how to word this in my own Application so I gave it my best shot. This is what I wrote:
1. Request leave of the Court pursuant to section 112 of the Child Support Assessment Act 1989 to amend an Administrative Assessment that is more than 18 months old.
2. Disregard the Child Supports Administrative Assessment based on the Respondents taxable income for the period from July 2002 until July 2010.Amend the Child Supports Administrative Assessment to reflect the deposits in the Respondent's bank accounts
I also amended this application to seek that the court ask that the CSA assess the respondent on his bank account deposits rather than his taxable income, because once again, I had no clue what to write. As I can do nothing to change the application now any help on wording this better can be submitted via my 'outline of case' apparently, so if anyone has a better way of putting this I would be very grateful.
So I think your application would be something along the lines of.
I apply to the court to grant leave, pursuant to section 112 of the Child Support Assessment Act, for the registrar to amend the administrative assessment(s) …….. (from until)
Then I think you have your affidavit. I'd suggest rather than trying to make suggestions simply furnish the relevant facts (FM's aren't normally, if ever, stupid and may well ask relevant questions, like who's such and such). If you try to use their time as a means of attacking the respondent then that could count against you perhaps not even intentionally.
e.g. On ??/??/???? the a sum of $????? was deposited into account ?????????, account number ??????? from ??????????? (or via cheque #?????????)
I'd personally consider also including various sums (e.g. something along the lines of between ??/??/???? and ??/??/???? the sum of $???????? was deposited into account #??????? from (whatever the source is).
I'd also do sums of total income/outcomes. Perhaps placing the sums first with a reference to where they are split down.
Saying that I've never really gone to court.
I'd also advise trying to find some decisions on austlii in the Federal Magistrates Court (click database search, select Federal Magistrates Court - Family Law, use something like 112 and assessment as the search argument. Read and learn.
Explanation of the search argument
Entering 112 and assessment tells the database search engine (the program(s) that do the searching) to look for the word 112 (ok so it's a number but it will be looking for characters) and to look for the word assessment. The word and between 112 and assessment tells the search engine to only show results that have both 112 and assessment (if you search just for 112, you get 323 finds, if you search for assessment you get 1862, but only 274 have both).
e.g. doing that search the first of 274 finds is :-
Rawlings & Rawlings  FMCAfam 65 (2 February 2010)
Last Updated: 9 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
RAWLINGS & RAWLINGS
 FMCAfam 65
CHILD SUPPORT Application for departure for period between July 2000 and June 2008 whether leave should be granted in respect of administrative assessments more than eighteen months old matters to be considered reasons for delay balance of hardship special circumstance capacity to earn just and equitable costs.
Child Support (Assessment) Act 1989 , ss.98B, 98S, 111, 112 , 114, 116, 117, 118
Family Law Act 1975, s.117
Federal Magistrates Court Act 1999, s.3
You may also be able to get an idea of which FM(s) you'll get.
You can likely build part of your affidavit along the lines of how the decision is written. However, I'd suggest trying to keep things concise.
You could write your application and affidavits up and take them to a legal person to look over (perhaps).
From the above case, here's the reason, with perhaps a warning (i.e. it looks as though you may well be expected to answer why you've left it this long):
In the Best Interests of Children Reforming the Child Support Scheme: Report of the Ministerial Taskforce on Child Support published May 2005 saidAn application for change of assessment may currently be made for a virtually unlimited time. This is highly undesirable, as it may open periods to re-examination which have long past, to the detriment of the other parent who finds past child support obligations being retrospectively reviewed. Particularly where a parent wishes to avoid complying with large outstanding child support debts, a belated application to reduce the assessment may be available, undermining the CSAs ability to enforce debt. In practice, most decisions are not retrospective. However, the currently open discretion to make an application to vary past periods should generally be limited to the immediately preceding child support period.
However, there may be some exceptional circumstances where a parent has a legitimate reason for delaying their application for a change to a past assessment . One such reason is because information has only recently come to light about a payers hidden income. In such cases, a process should exist to enable this general limit on retrospective applications to be eased. A court is in the best position to consider the past rights of the parties, and determine whether making an exception is appropriate. For this reason the Taskforce proposes that an application should be made to a court (in practice this would be the Federal Magistrates Court), to grant leave to apply out of time. This would be similar to the existing process under s.44 of the Family Law Act 1975 in relation to property and spousal maintenance applications.
Where such application has been made to a court, and the court is inclined to grant it, the court may have before it much of the necessary information and evidence from the parents to consider making a departure order. It may be inefficient to require the parents to return to the CSA to seek administrative determination of the application. In such cases, the court should have a discretion on application by a parent to proceed to determine the substantive departure application itself.
I think the last sentence is covered by section 118 (however I'd suggest that an FM is more than likely to get the CSA to do all the working out).
Perhaps Fairgo (I think I've recalled the correct username) may provide some advice as that user has had court experience in regards to CS.
I have stated all of this in my Affidavit as the reason that I have not previously pursued the matter.
If I were to do what you suggested with all of the individual bank deposits wouldn't the FM be inundated with the pages of entries that I would submit? Also wouldn't I also have to annexure that actual bank statement for every deposit to show that it actually happened and that I am not just making it up?
Sorry for all the newbie questions, be patient with me please…
Not on here on AUSTLII (to do and on here you use + before the word, like google if using the google search (i.e. click on search at the top right). I doubt (pretty sure in fact) that you'd not find anything on here, other than discussion about going back past 18 months).
Jacqwil saidI have attempted to find cases relevant to mine here before, however I didn't have much success. I will take your advice and use the search words '112' and 'assessment' with an 'and' in between.
I don't think that would be a good idea. Why not something along the lines of. I kept on trying to get the CSA to chase matters up, whilst not really understanding what they were saying in regards take it to court. It was only until I came across a helpful website that the process was explained, after which I then started researching into how to go about this process as I was sure that could not afford to employ a solicitor. What I have little idea of, is whether you would be questioned to provide in-depth detail (e.g. dates and times when you contacted the CSA).
Jacqwil saidI don't really know how I am going to answer the magistrate about why it has taken me so long to take action, but I would have to say that without proof I did not think that it was time well spent.
Then sum up the accounts perhaps on a monthly basis. No matter what you will need to annexure the bank statements, they are the proof. If this is longer than one year. The perhaps make an application per year (tax year) within your application. That gives the FM the ability to say too old, to one and fine to another rather than too old I can't do, or some are too old, re-apply. Again it's quite likely that Austlii will give you better clues as to what to do.
Yet again I'll re-emphasise that I have no court experience and hopefully some who have may come in and provide better advice.
havent read all of the thread but something i caught on and found interesting, are u asking for a percentage of child support from money earned illegally? and are u asking for information on spending habits of your ex? if your ex is behaving illegally why couldnt the police act on his behavior? seems u have alot of information that could lead to him being in trouble but should it go that way and he get arrested then not be able to work then u would miss out on the child support he is paying thru his regular job :/?
asking the CSA to delve deeper to ascertain where money is coming from and then determining that yes he is earning money and you know where and how he earning this money and u getting a percentage would that implicate you as being a benificary of crime?