Donate Child Support Calculator
Skip navigation

Writting a letter to the Federal Magistrate

What do I write

I phoned the courts the other day asking if I can submit some questions to FMC as my hearing was on Wednesday.

I have drafted the following and I was wondering if someone can voice there opinion or re write further on what I have written.



Attention Associates to Federal Magistrate _______

File Number:-    1234



Request:-  To provide the opportunity ( via a face to face table conference) to answer any questions that the FM may have, or to present further information that may provide a further insight and assist the FM in making a determination in regards to the case presented.



Reasons:-   1. There is more to my claims against the Tribural than meets the eye, and than I was able to present in court on x x 2012

2:-   By representing myself, I was unfamiliar with the court process and thought that I would have been given an opportunity at the end of the session to summarise my case, present further information and/or to respond to matters raised by the legal representatives for the two respondents.



3:-  I am sure that after reading the documents supplied to the FM, she may require several questions to be answered before giving her final decision.



Court Details:-  I don't understand what I have to put here ?
I believe you are completely wasting your time and are wholly unprepared for Self Representation.

What is a Tribural?

If the matter has been heard and a judgement given or about to be given you will only have appeal rights. Sorry to so harsh but the fact is if you are going into this system as a Self Represented Litigant you absolutely need to be fully prepared. You will get some lee-way and accommodation within the court and some additional explanation where you do not understand a particular component of the Act and given extra time for appearance and document submission but you have to follow the process and you have to know the law and related sections you will rely on and are arguing as well as all supporting case law and interpreting commentary. You also have the Registry you can call for procedural assistance but not legal advice.

You cannot just write to the Federal Magistrate because you "Forgot something" or "What you said at the time was not clear and after having thought about it some more I have a few more things to add" It just doesn't work like that and there is no procedural fairness around all of that for the other side anyway.

If you did not have time to present material you should have asked for an adjournment or extension or summarised material in affidavit which could be pointed out as being important for the Federal Magistrate to read later.

Talk to the SOL-Resources team they may have some ideas that I do not.

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
 
A Tribural is a fat finger pressing the wrong key and I cant edit the post again once I press submit, sorry.

Its not the point of getting more information back the FM, but more a point that she may have more questions about the blunder the Tribunal have made in there findings of the facts.
Thanks for that. So you are in a Federal Magistrates Court making a case of some sort against a Tribunal.

I have written on very RARE occasions (Probably twice in 11 years) directly to a Federal Magistrate myself about a matter before them and usually when the solicitors for the other side have conducted such conduct as to be entirely unconscionable and in complete disregard of the both the Federal Magistrates interim orders and child's best interests and where had the conduct and actions of that solicitor continued it would have resulted in disciplinary actions being requested from the legal services commission. It entirely depends on the issues and when you are next before the Federal Magistrate. I have written on one occasion when we were back in court a week later.

The previous post in this case is still the view I have formed about your scenario unless for example the case you have is still being heard and you are back in say in a week or two but you can provide evidence by following the set down court rules in how evidence is presented. Have you had a bit of a read of the court rules around what you are trying to do? The court rules for the Federal Magistrates Court are fairly short compared to the Family Court. I am not talking about Acts either I am talking about the Court Rules something entirely different. You can also call the court registry and ask for an opinion. They would give you some direction also.

It probably does not help you today but other forum members may have other ideas.


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 think the SRL people would have had kittens reading the first post. taylor is proposing  a face to face conference some possible questions for the FM to ask and new evidence - whereas it is his case to present IN COURT. Now some FMs may allow some leeway if they received this type of communication whilst some others would get RATHER annoyed. Taylor better hope the FM is in a good mood on the day if he does not understand the procedures in the Federal Magistrates Court.
Conan, I was asking for help and guidance on what to do, or say. I have had 2 incompetent solicitors who tell me that there is no error of law in my case, but they like taking my money.

Thank you SPCA for your input.

This was the reply back from the courts.

" Except in a few, very limited cases," communications between parties and a judge can only occur in open court.  This ensures that all parties have the opportunity to respond, and that proceedings are fair to everyone.

What I am concerned about is Her Honour is going to make a decision on the incorrect facts supplied by the SSAT.
The evidence supplied to the courts from the SSAT are incorrect. Tax info says 2008 and 2007 but the period in question was for 2010 and 2011. There are facts talked about in there findings, but no evidence in the documents supplied.
Everthing that the SSAT has submitted with regards to the Law is correct, but there accounting is pathetic, none of there figures marry up with what my tax return says and I made a point to the FM about this. That alone is an Error of Law on something, dont know what it is called. ?
taylor said
…..

" Except in a few, very limited cases," communications between parties and a judge can only occur in open court.  This ensures that all parties have the opportunity to respond, and that proceedings are fair to everyone.

What I am concerned about is Her Honour is going to make a decision on the incorrect facts supplied by the SSAT.
But you were in court and had that information at the time. You say  "The evidence supplied to the courts from the SSAT are incorrect. Tax info says 2008 and 2007 but the period in question was for 2010 and 2011." then the question has to be asked why was that not dealt with?  You say "There are facts talked about in there findings, but no evidence in the documents supplied." well why didn't you ask for evidence in court?

Once the matter is heard you have appeal rights on a point of law not necessarily on the facts however I say that with some reservation as some recent SSAT appeal cases seem to have gone way beyond points of law to indicate that wrong facts are a point of law. I think I published something about this a few weeks ago so you can search that material.

My only suggestion to you is to write a very short letter with simply a summary on a single A4 page of the errors in fact and send it to the Judge and the other side and show on the letter the other side has it as well.  When I mean short summary I mean only deal with the two points you raise that is one the dates for (whatever the issue is) are completely wrong and a glaring mistake by SSAT and there is no evidence supplied for finding A, B and E etc… Look they may not admit it and most probably wont but someone will read it and you never know where it will end up and if it gets on the case file when someone is looking at the case they may take it into account. It will also give you piece of mind that you did something when you saw those errors.


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 am a carpenter trying to runa business and have been since 2002.

My case all started in 2008 I didn't have the time or the knowledge of the incompetent decision made by the CSA so I gave all my relevant documents to a recommended solicitor, from the Legal Aid adviser.

The first thing that the solicitor should have done was to lodge a Stay Order. Nearly 2 years had gone by and a hearing date was set down with the SSAT.

The 2nd thing that the solicitor should have done was to lodge an application for Leave so the SSAT could go back to when I made my first claim. SSAT made there decision with out back dating to 2008 and pre dated there evidence for the 2010 & 11 years using my 2007 & 8 tax returns and they should have gone back 18 months prior to the SSAT application date and also made an assessment on my 2011 year without considering my 2010 tax return.

I have spent the last 8 weeks trying to prepare for my day in court and I probably could have had another week to fine tune my case. Ifound some documents and evidence that was submitted to the courts, but a few days later when I reconciled everything I found further evidence that was missing and relevant to my case.

I am still learning more and more about the Agency every day. My business was made Insolvent in 2008 thanks to the CSA stealing funds from a bank account and I have slowly been treading water since then, but you can only stay afloat for so long before you sink. My doctor has just given me a referral to another doctor because I have a crisis of suicidal intent all because this Agency can not use a calculator.

My Case

 The CSA did a re assessment on my child support amount, so my claims to the SSAT were:-

 My initial claim against the CSA was for the periods 1st July 2008 to 30th June 2009 Therefore the 2008 tax return was required. The CSA gave me a default Taxable income of $ 36,504 based on the Aust average income.

The 2nd application was for the periods 1st July 2009 to 30th June 2010 Therefore the 2009 tax assessment was required. The CSA gave me a default Taxable income of $ 36,504 based on the Aust average income and the Case officer suggested that I have a Taxable income amount of $ 41,000


 Where CSA has made a determination of a parent's adjusted taxable income for a particular year and subsequently ascertains the parent's actual taxable income for that year (when a tax assessment issues for the parent), the child support assessment must be amended immediately. CSA must also amend the assessment if it obtains other new information about a parent's adjusted taxable income and makes a later determination of the appropriate adjusted taxable income amount (section 58A(1)).

  paragraphs (a) and (b) do not apply and the parent was genuinely unable to provide CSA with timely information due to the parent being unaware that an assessment had been made; illhealth; natural disaster; remote location; imprisonment; or other exceptional circumstances and the parent provided income information as soon as was practicable in the circumstances (section 58A(2) and regulation 7B(1));

 As stated to my case officer, my income amount for that year was around $ 8 052 of memory and the accountant had my tax information in August of that year and they were processing them as quick as possible due to an overload of work. I was also entitled to receive the government pay back scheme for low income earners for that year, but I missed out, thanks to an incompetent accountant. I told my case worker H that I had phoned my accountant several times to lodge my returns and that my tax returns were out off my control.

 3rd 2005 tax assessment with CSA They have incorrectly applied the wrong amount of child support in accordance to my Tax return. I have no idea where they have got my taxable income from, they just sent me an up to date assessment and after 2 phone calls and 1 letter and years later, they have never replied back. For me to dispute this matter would involve another change of assessment application and going through this whole unjust process again when it's an accounting error made by the CSA.

 4th The CSA did a reconciliation, change of assessment in 2008 on my 2000 year tax return outside of there jurisdiction past 18 months without a court order.

 How long should a decision apply?

 CSA cannot make a change of assessment decision that affects the child support assessment payable for a day that is more than eighteen months before the date upon which a parent or non-parent carer lodged their change of assessment application (section 98S(3B)(a)). In the case of a CSA-initiated change of assessment, CSA cannot make a change of assessment decision that affects the child support assessment payable for a day that is more than eighteen months before the date CSA notified the parties in writing of its intention to change the assessment (section 98S(3B)(b)).

 However, if a court has granted leave under section 112, CSA can make a retrospective change to the assessment for the period specified in the section 112 order (sections 98S(3C) and 112(6)). CSA is not obliged to make a change to the assessment for the period the court has granted leave (section 112(8)). The court cannot specify a period that includes a day that is more than 7 years earlier than the date of the application to court for leave to make a retrospective change (section 112(7)).

 The CSA did not apply to the courts for leave under section 112 of the act, they took this matter into there own hands and stole nearly $ 8 000 from my creditors bank account.

 Crabbe & Crabbe (SSAT Appeal) [2011] FMCAfam 24 (14 January 2011)

 Appeal from decision of SSAT consideration of whether one or more errors of law failure of Tribunal to distinguish separate legal entities

 ENTITIE:- Small or Large they are the back bone of the Australia economy. They are a registered PAYG Business, Company or Trust who pay there employees a net income and pay taxation on profits for that Entitie.

 findings without evidence as to interest in 'business'

 findings without evidence as to income

 fundamental errors in assessment of income

 "The respondent's liability to pay child support be assessed in accordance with the administrative assessment under the Child Support (Assessment) Act 1989 for the period 1 July 2008 and be based upon the Appellant's taxable income as disclosed in the Personal Income Tax returns lodged by him with the Australian Taxation Office and that the Child Support Agency shall issue assessments accordingly".

 LADD case, thank you

 

Last edit: by Secretary SPCA

1 guest and 0 members have just viewed this.

Recent Tweets