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The Right of a Paying Parent to Resign

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Resignation during sick leave 12 months ago has ex seeking Reason 8 CSA Review

QUESTION: How does CSA make a determination on whether a paying parent resigned from a position to avoid paying child support vs the job wasn't the right job for that person anymore and/or the individuals right to choose how and where they work? Additionally how does the UN Convention on the elimination of discrimination against women apply for:

Article 2: ensure that no public authority discriminates against women
Article 11: especially in the choice of profession

And finally, what are the possible outcomes if an assessor has a predetermined view that all must be guilty until proven innocent?

CURRENT STATUS: Daughter's Dad (never married to him)is seeking Reason8 CSA reviewbased on earning capacity of myself and property (jointly with my husband of 10 years). Father declares himself as retired, semi-retired & self-employed & full time Dad and is not actively seeking work - at the age of 42…… Mother since resigning senior position while on sick leave in 2009 reviews options and determines self employment as avenue to build own business, generate income and provide safe and healthy work environment.

BACKGROUND: Daughter 14 lives with Dad on acreage25 mins from coastline (i.e. not remote)

CSA Payments: Dad pays $96pm for 10 months in 2001; 2002-2006 private agreement only to jointly pay private school fees on full yr basis to receive discount & split 5-/5- uniforms etc. May 2007 Dad claims CSA from mother once he learns that she hascommenced a new job. Mother pays $1000pm 05/2007 - 06/2009 until mother resigns from her position. CSA determine mother not required to make payments as 07/2010 income to date insufficient

CARE ARRANGEMENT'S Child was genuine shared care from 2003 - March 2007; Prior to 2003 livedat Mum's; Post that April 2007 - daughter wanted to live at Dad's (separate legal advice suggested 'nothing' I could do to prevent that unless I was certain of abuse irrespective of whether healthy or not as subjective viewpoint); 2008 We take Dad to court to prevent him removing daughter from township etc. Awarded. Dad stays put. CSA determined residential split: 66% at Dads & 33% at Mums

MUM's EMPLOYMENT: 2006 Mum changes jobs maintainingtentative agreement from new employer to honour long hours one week, shorter hours the next to meet parenting commitments. This job paid $40k more than previousposition and tripled responsibility;Job is high complexneeds in disability service; a senior position.Position deemed by mother as unsustainable with hours, quality of life, risk, oncall nature, stressful environmentetc while in the midst of 5 week sick leave block. Employee chooses not to continue in role due to stressors of position and impact on wellbeing. 07/2009 mother registers new business name. Business development occurs as a sole trader. Large outlays from savings to fund set-up. Evidence of new 'enterprise' visible on the web.

DAD's EMPLOYMENT: ran his own Pty Ltd pre 1995 selling in 03/2008; regular write-downs of income. 2008 father declares himself 'retired'
Dad has continually undermined mother and step father with unrelenting effort to remove daughter from agreed schooling environment. Escalated in 2008 with Federal Magistrate Court Order preventing father from taking daughter for 6 months on indefinite horse rideand removing child from school, current township and communications with mother. However independent court appointed social worker determined it would destabilise child to tell her she couldn't go on trip and she had to leave her Dads so it was agreed that she'd keep onliving with Dads (and all the animals). On surface life gets back to normal…… until mother resigns.

NEXT STEPS: Dad no longer receives payments, fatherreopens debate to remove daughter from school, disregards mothers income level, he considers it personal, numerous email exchanges occur. Mother contacts solicitors in relation to breaches of court order by father, increasing child/mother alienation perpetuated by father when daughterin his care. Father lodges review with CSA after January refusal for daughter to be enrolled in distance education. Mother has been transparent with CSA from the day of initial resignation while on sick leave in 2009. 02/2010 Mother completes response for Reasons 3 & 8. Now CSA want mother to obtain a Medical Information Report (stating that it is voluntary…) from Doctor.

Now back to first person: I did not resign on medical grounds ie incapacity to do work. I resigned from my position because I was an exhaustedmess and I could see that the position and the organisation werenot healthy for me and it was MY decision to resign, doing so on good terms. I have supplied a bundle of pathology copies, a medical certificate; CEO references. I have proven evidence that I have been building my new enterprise. Where to now with this. How can I further prepare for my CSA meeting later this month?

Surely commonsense prevails? What other legislation exists to challenge the CSA Act on this issue?

Thanks for your time.

An adoring Mumxx
PayingMum said
Article 2: ensure that no public authority discriminates against women
Article 11: especially in the choice of profession

The CSA are not discriminating against women, they have applied the legislation (not that I am saying rightly or wrongly) to a parent, so a mother this time, perhaps a father next. The have not said we are applying this because you are a woman and that women must be treated this way separate to how men are.

The CSA are not restricting or enforce any choice of profession. They are (again not necessarily rightly) saying parent has the capacity to earn, as the parent has demonstrated by earning.

The legislation requires the the parent provides evidence that the decision was not made partly on the grounds of CS. It is very had to prove, especially to the CSA's evidence(sic) handling skills and especially when it comes to a factor that increases the amount collect or transferred.

The parent would likely have more success objection to the decision, then assuming the objection fails, taking the matter to SSAT and if that fails to court (court is free) on a matter of law. The parent has to put their case that the three grounds for capacity to earn don't exist.

Trying to run against this on discrimination grounds will probably hit vexatious and frivolous very often and virtually certainly with failure and likely make the parent suffer far more than they did at the job.
Prepare with the material you have to support the reasons you had to resign your employ.

MUM's EMPLOYMENT: 2006 Mum changes jobs maintaining tentative agreement from new employer to honour long hours one week, shorter hours the next to meet parenting commitments. This job paid $40k more than previous position and tripled responsibility; Job is high complex needs in disability service; a senior position. Position deemed by mother as unsustainable with hours, quality of life, risk, oncall nature, stressful environment etc while in the midst of 5 week sick leave block. Employee chooses not to continue in role due to stressors of position and impact on wellbeing. 07/2009 mother registers new business name. Business development occurs as a sole trader. Large outlays from savings to fund set-up. Evidence of new 'enterprise' visible on the web.

I would not be pushing the "Being self employed as a main thrust that you intend to get back into the earning community with a vengance" thing…  Nothing is harder than getting a new business up and it is extremly consuming of time and energy. Registering a business name is one thing. To make some real money is another. Currently you have very limited, if not negative earnings and are considering developing self employment ideas slowly as your mental and physical capacity allows.

When you are operating and filing tax returns then that will give an indicative position of what you are earning. Until that time your position is hardly upbeat. You will need to show VERY convicingly the reasons behind the requirement to leave your very lucrative employ to become unemployed. Failing that a determination on potential earnings ability will be applied. The Guide has a lot of information about that on the CSA web site. The problem with potential earning determinations are, that in a start up company, you will simply have no funds for the business and any funds will go to Child Support… thus before you start up the business it will be in a  negative cash flow position. Unless you can reverse that to build the business and thus earn more money to enable you to increase business cash income AND pay more Child Support, as the income increases, then you will be faced with a hopless task.

Don't bring up the COA and CSA initiated assesments on small business at this stage. Thats another thread we are running.


Executive Secretary - Shared Parenting Council of Australia
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Paying Mum

I am not sure if you have had a chance to digest s. 117 of the Child Support (Assessment) Act as yet, but my question to you would be, can you meet the necessary limbs to qualify your decision. For yourself if it were me I would be looking at s 117 (7B) of the act. It is a new section inserted as a result of debate from the raising of the amendment bill for the CSAA.

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
There is more info on this in the CSA Guide on earning capacity, here:

http://www.csa.gov.au/guidev2/TheGuideMaster.aspx?content=2_6_14#a_parents_earning_capacity

I have just been the respondent in a COA Reason8 earning capacity application myself. In the decision, the SCO and subsequently the Objection Officer went through every line of the earning capacity clause and how it related to my situation. They were very thorough. However, a forced termination is hard to argue with once you provide the evidence, and I also could demonstrate I had made every effort to resume earning to my capacity since that occurred, therefore the application did not meet the criteria that "the parent failed to show the decision about his or her work arrangements was not substantially motivated by the effect this would have on the child support assessment" as it was not my decision to leave my job, and therefore the COA did not succeed. Can your previous employer assist with any evidence that may help your argument in relation to leaving there for health reasons ?
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