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COA in the 'New Formula' era

Hi All,

  • The decision on COA initiated by the payee (not me) was made on 24 Aug 08.
  • The CS period spans over march 2008 to may 2009.
  • The SCO made determination to change CS income for the payer (me) accepting that Reason 8 capacity to earn applies.
  • The CS income for the payer was set to amount twice as high as compared to taxable income for year 2006-2007.  That resulted in 2 determinations by the SCO
  • prior to 1 July 2008 and being approx $800/month
  • post 1 July 2008 and being approx $400/month
The level of care remains the same for both periods and amounting to 27%.

I understand that the difference is a result of a legislation change effective 1 July 2008.

However, there are three questions which I would like to put to our CSA gurus and advocates:

1. How is it possible still to apply the legislation which is fundamentally flawed and admittedly wasnt fair to the children and their parents.
2. How is it equitable, just and especially proper to have two totally different determinations for the same child given all the factors being the same
3. If I am to object the decision (primarily on the ground that capacity to earn the set income was not substantiated) what could be other grounds to do so.

Your opinion and feedback will be greatly appreciated.

da Vinci Code

Last edit: by rom007

rom007 said
Hi All,

  • The decision on COA initiated by the payee (not me) was made on 24 Aug 08.
  • The CS period spans over march 2008 to may 2009.
  • The SCO made determination to change CS income for the payer (me) accepting that Reason 8 capacity to earn applies.
  • The CS income for the payer was set to amount twice as high as compared to taxable income for year 2006-2007. That resulted in 2 determinations by the SCO
  • prior to 1 July 2008 and being approx $800/month
  • post 1 July 2008 and being approx $400/month
The level of care remains the same for both periods and amounting to 27%.

I understand that the difference is a result of a legislation change effective 1 July 2008.

However, there are three questions which I would like to put to our CSA gurus and advocates:

1. How is it possible still to apply the legislation which is fundamentally flawed and admittedly wasnt fair to the children and their parents.
2. How is it equitable, just and especially proper to have two totally different determinations for the same child given all the factors being the same
3. If I am to object the decision (primarily on the ground that capacity to earn the set income was not substantiated) what could be other grounds to do so.

Your opinion and feedback will be greatly appreciated.

da Vinci Code

1 & 2.

 I believe that the way the law works is that new laws cannot be retrospectively applied, thus however wrong the old legislation was, that legislation applies prior to the commencement of the new legislation.

3. As I understand it, a capacity to earn can never be substantiated as it is not a real value. Since the new legislation was introduced the measures for applying Capacity to Earn have changed and part of the change is with regard to the tests. Here's an extract of the new legislation :-
Child Support Assessment Act 1989 (section 117) said
(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parents earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

                     (a)  one or more of the following applies:

                              (i)  the parent does not work despite ample opportunity to do so;

                             (ii)  the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

                            (iii)  the parent has changed his or her occupation, industry or working pattern; and

                     (b)  the parents decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

                              (i)  the parents caring responsibilities; or

                             (ii)  the parents state of health; and

                     ©  the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.


My understanding, is that a b & c must all be met, any one not being met means that Capacity to Earn cannot be applied, thus if you consider that they have not been met then this may be an area for contesting the decision to apply capacity to earn.
 
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