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Unfair Child Support due to Ex's New Baby

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Over 200% increase in child support due to my Ex having a baby with her new husband

Hi,

I was wondering if there is anybody who can help me with my current situation.

My daughters mother remarried a couple of years ago and has just had a baby with her new husband. When she went on unpaid maternity leave she advised the CSA that her income had dropped to $0. Since then they have accepted her estimate and my child support has nearly tripled, as she was on a higher wage than me.

The CSA haven't been helpful as they don't see anything wrong with the massive increase and I now feel like I am paying for a child that is not mine. I understand that the CSA can only go off of her income but her income for the financial year is alot more than $0. I also understand that I am "technically" paying to support my daughter but her mother has an obligation to support her as well, especially since her having a baby with her new husband by choice has nothing to do with me.

This really makes me feel sick every time I think about it.

Any advise would be appreciated.

Thanks
UnwantedFather,
                        the way that CS works for relevant dependant children (i.e. children who are only of one of the parents and are not of another CS case) is that only that parent's income is used in determining the cost of that child. As such if the other parent has no income then there would be no Relevant Dependant Child Amount, so as far as directly paying for that child is not the issue. The issue rather is that you are paying an increased CS amount because the other parent's income has reduced and thus drastically affected the CS paid due to the difference in the changed proportions of your incomes.

The CS legislation does offer some limited protection against such events by the way of the change of assessment process and more specifically a reason 8 (a parents income, property, financial resources, or earning capacity). It would be the earning capacity that you would primarily be contesting. However, there are 3 criteria that all have to be met. The first is that the parent is not working despite ample opportunity to do so or has reduced their weekly hours to below full-time work or has changed their work pattern, industry or occupation. This would appear to have been met (although some would argue that due to the new child the ample opportunity could be disputed).

The second is that the parent's decision is not justified by either the parent's caring responsibilities or the parent's health. It would very likely be successfully argued that the parent's decision is so justified and I doubt very much that the argument that the other parent should have given up their job would be entertained by the CSA as this would then result in less CS being paid and the CSA have shown on numerous occasions that collecting and transferring the most that they can is what is very frequently used as the basis for making decisions.

The third, that the parent's decision was not substantially motivated by the effect it would on the CS, wouldn't come into play and is in any case so worded that it's basically proving a negative, which cannot be done, and is thus really simply handing the decision over to the CSA to make. I have little doubt that the SCO would, for a recipient of CS, accept a new child as not being substantially motivated to effect the CS. On the other hand, i.e. if a payer made this claim, and SCO would likely not accept a new child as not being substantially motivated to effect the CS to obtain the result of a few brownie points for themselves and the CSA by the way of increasing the amount that the CSA collect or transfer and thus result in the prime factor behind CS, a reduction of the FTB paid out by the Government.

Perhaps Big Red or Fairgo will introduce other considerations that may be of benefit.

My thoughts are with you

Gidday mate, check my thread out..Having my Child support increased for another mans child, I can utterly sympathize with you as I am just about to take CSA on over the exact same issue.

We are basically fighting a losing battle but if you are serious about fighting the good fight, you'll find some usual information on here to help you out and there are some people on here that can offer good advice, such as Mike T, Fairgo and Bigred.

Basically what Mike T has told you about the Reason 8 change of Assessment appeal is our very limited and only hope of beating that bulls**t that CSA has thrown at us by forcing us to support our ex's while that have children with other men, unless you think you can meet any of the other 9 reasons for appealing.

Basically if you want to battle this and see this thru to the end, I suggest you just go thru the process with CSA and appeal it ( as I'm getting the impression that regardless of how airtight our arguements are, they will be ignored) and try and use this arguement when arguing for a Reason 8 CoA..(**thanks to Fairgo for this advice**)

 "I think that if the mother and her new husband can afford to have another child (by her reducing her work hours), then it's obvious that her husband has decided to support her in her decision and has the capacity to provide the short-fall in financial support. Therefore I believe he should be made responsible for the shortfall in financial support as he in partnership with his wife has decided to have the baby. So the wife in effect has access to his greater capacity to support the children. This would be a reason 8 change of assessment application. Otherwise the mother could give greater care to the father of the children."

Now as I stated earlier, this argument will probably fail but it then opens up the next avenue of appeal and so forth and so forth until it reaches court where I think we may get a fairer hearing but not assured but I can sense that sometimes the court takes pleasure in giving it to CSA but thats not always the case either.

Goodluck and keep me posted of your progress and if I learn anything of assistance I'll let you know.
JWB - As the mother has reduced her workload they (she and her husband or step father) will receive and increase in family benefits which is calculated using her's as well as her husband's income (not the biological father's income who is paying child support!). For this reason I would argue that the step father is financially responsible for the children as well as the biological father and should be providing further financial support due to his role in the decision to have another child. Otherwise his income should not be used to calculate family benefits for children that are not his.

The above could be cited as special circumstances.  

Ideally you would want to get to court via section 116 see below and not after a SSAT decision.

Can you work out how to achieve this?

116  Application for order under Division
   (1)   A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
   (a)   all of the following apply:
   (i)   the Registrar has, under section98E or 98R, refused to make a determination under Part6A in respect of the administrative assessment;
   (ii)   an objection to the refusal has been lodged;
   (iii)   the Registrar has disallowed the objection; or
   (aa)   all of the following apply:
   (i)   a decision has been made in respect of the administrative assessment;
   (ii)   an objection to the decision has been lodged;
   (iii)   in making a decision on the objection, the Registrar has, under section98E or 98R, refused to make a determination under Part6A in respect of the administrative assessment; or
   (ab)   the SSAT has, under section98E or 98R, refused to make a determination under Part6A in respect of the administrative assessment; or
   (b)   both of the following apply:
   (i)   the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
   (ii)   the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
   ©   in the case of a liable parentthe administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
Note 1:   For the orders that a court may make under this Division see section118.
Note 2:   With a courts leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
Note 3:   A court may make an order under this Division if the co
Hi All,  

Maybe if you throw this at CSA it may cause a few anxious moments

I have been reading the Child Support Assessment Act 1988 and I was wondering if anyone could clarify something for me,

12 Interpretationhappening of child support terminating events
(1) A child support terminating event happens in relation to a child if:
   (a) the child dies; or
   (b) the child ceases to be an eligible child under regulations made under subsection 22(1); or
   © the child turns 18; or
   (d) the child is adopted; or
   (e) the child becomes a member of a couple; or
   (f) none of the following subparagraphs applies any longer in relation to the child:
   (i) the child is present in Australia;
   (ii) the child is an Australian citizen;
   (iii) the child is ordinarily resident in Australia; or
   (g) the circumstances described in subsection 30AA(1) of the Registration and Collection Act apply in relation to the child.

12 1(e) states if the child becomes a member of a couple,

I could not find a definition of a couple in this act but could find the following which is an extract from The Australian Government  Australian Institute of Family Studies, glossary

Couple family*: A family based on two persons who are in a registered or de facto marriage and who are usually resident in the same household. A couple family without children may have other relatives, such as ancestors, present. A couple family with children may have adult children and/or other relatives present. (see also One-parent family)

If a payee remarries and has now become a couple with the new partner would that also mean that the child now becomes a member of that couple and in effect according to 12 1(e) of the act become a child support terminating event.

I am no doubt wrong, but who knows.

MikeT do you have any thoughts on this.

Cheers

ILG
I with you ILG,  I would have no problem using it and I'm writing it into my appeals letter to the SCO as we speak!..lol

Being serious tho, I have read it and I interpret the same way you do but I would need further clarification from someone with greater knowledge than myself but I couldn't imagine that the powers that be in the CSA would leave such a glaring loophole in their legislation. I mean it has happened before in other forms law but its so blatantly obvious that there must be a catch!!..lol
In my opinion you would drop out at the very beginning "A family based on two persons", a child then makes it three persons and that the child is children of the couple not a member of the couple or a member of the couple's family.

I could see that this could perhaps have the danger of the "Frivolous and vexatious" flag being waved and you get thrown out. However, all this is just theory and I don't really have a clue. Just see me as devils advocate in this one.
Hiya all,


From my understanding of interpreting law, I think it is a very interesting argument JWB4273 raises.


I see your point Mike T (in my view,  I think your info reaches "God Status" for memeaning I get


Heaps of value from it, hope that comes across in the right manner)


But wouldn't  "A family based of Two people" need to be read in it's entirety .


eg: A family based on two persons  (the first limb or tick in the box so to speak.)

followed by."who are in a registered or de facto marriage"   (the 2nd tick in the box required)..

followed by the word "AND" (which my understanding is different to the word "OR" whereby "AND" means this MUST occur.)

 "and who are usually resident in the same household."

Could this mean that this precludes a child or children and refers to the Adult parents???

Does this change your view, Mike T?

Just asking the question as maybe like JWB4273. I too am looking for that golden arrow for that long bow,

we payers seem to be given by default.

Also, JWB4273, not sure if I would be comprehensively outlining your "argument in a letter to your SCO If you mean in a COA, I would understand, I for one, would be very cautious in


Detailing a valid case to CSO hoping they will employ some "common sense, empathy, compassion, fair and equitable." Decision making processes.

 It must be a prerequisite in getting a job at the C$A.. If any of the above is present, then you would not be a suitable candidate. Tis what is (clearly) seems like to me.
It is clear to me that "and who are usually resident in the same household," does not have the meaning you are attaching to it. In this instance it is clear "resident" is intended to be read as a verb. (As in reside) You are taking "resident" as an adjectival noun. Sorry, but this bow is w-a-y too long.
mmmm…Jamula

It seems to me that you are confirming exactly the meaning the I think "resident" means…as in "to reside."

So I guess, if there are two people…in this case two adults as a child cannot be in a registered marriage or defacto marriage

Well not in this country anyhow.) and where they are living, (residing together) then… I for one will still be pulling the strings back as far as I can and taking the shot, so to speak.

Oh, and should say it was Isn'tLifeGrand that raised the very interesting point, Sorry I  mentioned it was JWB4273, (although it seems

this is of particular interest to him)..

Not saying your posts aren't plausible Jamula, however, like myself, you are a relatively new poster.

Again, I'd be very interested in the views of this by some of the long term posters in this forum.
Yes it means when a child enters a relationship with another person or even has a child on their own before the age 18, so there is not much room here for you to move with your situation.

Like I said before, I doubt C$A will ever rule on 98E & 98R for a application from the payer, as it allows them to bypass the merry-go-round Change of Assessment/Objection/Review/SSAT Process/Court SSAT etc… processes, and go straight to court for a decision.

C$A would probably just ignore the payers application etc… in an effort to get rid of them.

However for an COA application from the payee, it is in C$A's best interest to rule under 98E & 98R if they think the payee will get a better result in a court.

So for this and many other reasons (pay bonuses/collection mentality) if C$A refuse your COA application and objection for a review, but do not rule under 98E & 98R - (being a too complicated matter) - then I think you could convince a magistrate to accept your application for the reasons (C$A bias) given above.
On reading the posts that followed mine and re-reading the relevant parts of the Act, I do believe now that the "INTENT" of that part of the Act referes to the child commencing a relationship with another person and becoming a couple (1 of 2 people).
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