16 year old getting Youth Allowance and I am still paying 45% care Child Support of $1200/month:
For the income of a child to be considered it has to be by the way of a departure from administrative assessment (frequently called Change of Assessment) under reason 4- Income of the Child. However, under the "Would a change be Just and Equitable" income support payments are not considered and Youth Allowance comes under Income Support as per
The CS Guide - 2.6.10 Reason 4 - Income of the Child said
The Registrar must disregard an income-tested pension, allowance or benefit (2.6.17) received by the child (or by another person on behalf of the child) when considering that child's income, earning capacity, property and financial resources (CSA Act section 117(7)).
the trail then gets to 2.4.11 via 2.6.17 which lists :-
The CS Guide - 2.4.11 Fixed Annual Rate of Child Support said
Income support payment
The term income support payment is defined in CSA Act section 66(9). Under 66(9)(a) the term has the meaning given by SSAct section 23(1). In that Act the term is defined as:
The references in SSAct section 23(1) to 'income support payment', 'social security benefit', 'newstart allowance' and 'youth allowance' are modified, by sections 91 and 93 of the Farm Household Support Act 2014, to be taken to include 'farm household allowance' under that Act. This means that the term 'income support payment' under CSA Act section 66(9) is taken to include 'farm household allowance'.
An income support payment also includes a payment under the ABSTUDY scheme that includes an amount identified as living allowance that is paid at the maximum basic rate (section 66(9)(b)).
So Wolfie, can you answer the question? Is there a potential to claim compensation for a wrongful VRO and if so how would one go about it? Perhaps Rod L will later ask for comments on the validity of his story.
Backdating payments is not consitent between Payer and Payee:
It appears that it may all be due to timing. That is CS is calculated (normally) according to tax returns and taxable income. So each year when a tax return is lodged the CS is recalculated.
So in May when you lodged the tax return CS was recalculated and the amount of CS increased dramatically, as the Tax return was lodged late, then it is backdated to the beginning of the Child Support period (i.e. when it was last amended which would likely have been when the other parent lodged their tax return). Effectively you are then in arrears (3 weeks to pay is the lengths they will go to collect, I don't believe there is any legislated period of 3 weeks to pay).
Now if this as in May then a lot depends upon when you lodge the 2016-2017 tax return, which it appears you haven't done.After receiving (I guess) another assessment due to the other parent lodging their tax return, the CSA use the latest available taxable income + some (adjusted taxable income indexation factor) and use that the the calculation, so you contact them and say that the income doesn't truly reflect the income you will be getting and they listen and change. This becomes an income estimate, which will be reconciled at the end of the child support period and fines may be applied.
Now in theory any parent can lodge an estimate (they can be refused), so yes both you and the other parent can lodge income estimates. They would rarely if ever be to increase income.
However, reconciliation (correction), does take place.
I would suggest that you need to do two things.
1) Lodge your tax returns, if they are less than the previous year's, as early as you can (as late as you can if greater tha last year + the indexation factor). Your CS will then be reduced.
SSAT hearing pending, guidance/ support needed - never done this before:
Thanks for the clarification. I understand now.
What I would try is to bypass them as the other parent appears to be agreeable is to a) go to private collect if not and then b) to negotiate a fair payment with the other parent (this could be done in the other parent is a party to SSAT, however the other parent may not be and the CSA will waste bucket loads of cash in order to say/report that they have collected one extra cent) just letting the CSA send out bits of useful paper. This "fair payment" may have to include consideration to cover the loss/reduction of FTB.
In regard to SSAT really the only relevant fact is that the CSA failed to apply the legislation when they refused to accept income estimate without grounds and that the registrar is provided the power to correct such a failing (can't recall where it says this).
Another tack would be to have the matter heard under The Administrative Decisions (Judicial Review) Act 1977 The CSA Guide - 4.3.7 The Administrative Decisions (Judicial Review) Act 1977 The basis of this ("The decision-maker did not follow procedures that were required by law when they made the decision;", that is they failed in their duty by refusing and income estimate without legislated grounds to do so; that; The person who purported to make the decision did not have the power to make the decision; that; The decision could not be made under the relevant legislation;….. (easy to pick which reason don't apply).
Another approach, independent of the others, would also be to seek compensation for the losses under the "If a customer suffers a loss due to inadequate service or advice, the department will do all that it can to redress the issue and remedy the loss. Compensation may be payable where there is no other remedy available." (perhaps add that in all your replies at the SSAT hearing). You seek compensation via CDDA (Compensation for Detriment due to Deficient Administration). The CSA Guide - 6.11.1 Compensation. Include the failure to correctly apply information in regard the addition/removal of a relevant dependant.
Lastly, I apologise for wrongly implying that you hadn't submitted tax returns (if seeking compensation perhaps include that as an injury you suffered due to the negligence and incompetence of the CSA to follow the legislation they are bound by).
Again try to get you Fedral MP involved. Additionally the MP who has the DHS portfolio (Marise Payne, contact Senator Marise Payne and/or firstname.lastname@example.org ) and George Christensen (email@example.com) who is chairing an inquiry of the Child Support Program of the CSA. Perhaps also complain through the Ombudsman (Commonwealth Ombudsmanombudsman@ombudsman.gov.au). You may also consider getting the media involved/interested.
SSAT hearing pending, guidance/ support needed - never done this before:
What decision are you contesting? Is the decision a reason 8 (capacity to earn) Departure from Administrative Assessment frequently termed a change of assessment (COA) or a decision based upon ATO information not being available?
For the latter there are two scenarios.
1) Determination where ATO income available for the year before the last relevant year of income. (relevant year of income for this year is now 2013-2014, last relevant year is 2012-2013, so this covers a tax return that existed for 2011-2012 but not for 2012-2013 or if you completed a "Non-lodgment advice" for the 2012-2013 tax year. This appears to be what your situation is. If so, then the registrar (CSA) may multiply that know income by the ATI indexation factor for that year 2012-2013. There may be reference made to Section 58(3) which is the section that covers this.
2) Determination where ATO income is available for an earlier year of income. In short no tax return for 2012-2013 and no tax return for 2011-2012 (again non-lodgement advice is informing the ATO of your income). If this case the greater of applying the ATI indexation factor or application of 2/3rds of the Annualised Male Total Average Weekly earnings (AMTAWE a core amount in the calculation of CS). Can be applied.
If either of these two above apply, as they are not Income amount orders, then you should be able to have an estimate of income accepted (I assume that such an estimate would be less than 85% of the last year of relevant income). I can't see why they haven't advised you of this or refused to accept an income. I have also assumed that there is no agreement that constitutes an income amount order (ie varies the annual rate, the adjusted taxable income or the child support income by setting the respective value).
This is why I think that a COA may apply.
If it's capacity to earn that you are fighting, then there are 3) requirements and all three must be met. They are:
1. The parent is either:
not working despite ample opportunity to do so (section 117(7B)(a)(i)); or has reduced his or her weekly hours of work to below full-time work(section 117(7B)(a)(ii)); or has changed his or her occupation, industry or working pattern (section 117(7B)(a)(iii));
2. The parent's decision about his or her work arrangements is not justified by either:
his or her caring responsibilities (section 117(7B)(b)(i)); or his or her state of health (section 117(7B)(b)(ii));
I think that you can easily argue that securing work for a short period is not reducing your hours but actually increasing them and also that your work arrangements were affected by health and also that you working or not had no effect on the child support assessment, supported by the CSA's refusal to issue an income estimate. Furthermore no decision as such was made other than to gain temporary employment. You didn't decide to leave that employment, the employment ceased.
There hasn't been much feedback from SSAT. Originally you had a good shot. However, I believe ex-COA team members, were then taken on, and it is very clear from what I have seen, that they apply bias against the payer and more so than the COA team. First piece of advice is watch out they will very likely try to get you to say things that you are not prepared for. If they ask a question that is not answered on your bullet points then say that you cannot provide that information at present but would be willing to undertake the necessary research to ascertain the answer if they pose the question in writing and are given an appropriate amount of time to do that research.
I'd also advise asking for the CSA to provide the receipt number for when you asked for the unemployed note to be added and from that receipt number for them to provide the recording of the phone conversation taken by "Agent Desktop".
If you can, also raise the matter with your local Federal MP. From what I have heard the CSA hates them getting involved, especially when they have not done their job as it very much appears the case to be.
Obviously also religiously do your tax returns or submit Non-Lodgement advices.
With regard to the other parent being provided all that is provided by the other parent, that is a requirement to ensure that procedural fairness exists.
The Child Support Guide - 2.6.5 Change of assessment process - application from payer or payee said
The Registrar must manage the change of assessment process in a way that is procedurally fair. The Registrar must ensure that a person is aware of any adverse information and that they have an opportunity to be heard and make submissions in support of their case. In addition to providing each party with a copy of the other party's response or application and supporting documents, the Registrar will also advise each party of any additional information that is intended to be taken into account in a way that is adverse to them, and invite them to comment upon that information. This would include information provided by the other party during conversations with the Senior Case Officer, or by a third party.
As malady says blank out any details which infringe upon your privacy or not supply but at the risk on non supply allowing far more scope for the decision maker too decide upon the omitted factors. Perhaps, perhaps not jeopardising the outcome.
Could anyone provide any insight into whether I should submit the COA with an explanatory note stating why I am not providing the other information, my payslip and the evidence of costs for braces and surgery?
In reality not without knowing the "Officer", basically they will make a decision and have the power of a judge/magistrate invested upon them (just a gross mistake that they are not required to have anything like the expertise of anything other than pushing pens). Saying that, on your side, is that fact they work in an environment that surrounds with one basic driver, that is to grab as much as they can from one parent and give to the other. As the recipient you stand to win.
An example. I think, that is quite relevant to this topic. I am pretty sure that the CSA guide, for many years has said:
The CSA Guide - 2.6.8 Reason 2 - the special needs of the child said
The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child. They may result in costs that are essential for the childs welfare that are outside the ordinary costs of a child that can be met from an administrative assessment ('Lightfoot v Hampson (1996) FLC 92-663').
The costs of orthodontic treatment that is considered to be essential for a childs welfare may be significant enough to affect the costs of maintaining the child.
Now it says:
The CSA Guide - 2.6.8 Reason 2 - the special needs of the child said
The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child. They may result in costs that are essential or desirable for the childs welfare that are outside the ordinary costs of a child that can be met from an administrative assessment ('Lightfoot v Hampson (1996) FLC 92-663').
The costs of orthodontic treatment that is considered to be essential or desirable for a childs welfare may be significant enough to affect the costs of maintaining the child.
Now, the legislation hasn't changed it stills says at Section(117(2)(ia)) "because of special needs of the child; or" and I'm pretty sure that decision in Lightfoot v Hampson hasn't magically changed over time.
Nope the CSA have, I believe, changed this so they can say a desire is a special need. However, they have also tried to say later when it suits that a desire isn't a special need as in:
The CSA Guide - said
The desire for expenditure on hobbies, entertainment, and holidays does not amount to a special circumstance.
(OH and of course no reference to any ruling saying that it doesn't).
Is it possible, if the CSA officer does demand to see those details of my personal finances, that I can withdraw the COA?
Procedurally I can't see that it says you can't but also it doesn't say that you can. However, there are ways out that could perhaps persuade the officer that it would be futile to not remove the application. Once such method would be to try to make the application "too complex" and thus have it refused (sorry I think it's too complex to explain what would constitute too complex). The other way would be to get via an agreement:
The CSA guide - 2.6.5 Change of assessment process - application from payer or payee said
Agreements and change of assessment
Parties can make an agreement while the Registrar is considering a change of assessment application (section 98T). An agreement must be accepted if the Registrar is satisfied that it is a child support agreement (section 98U(1)). However, if the agreement is not a binding agreement, the Registrar can only accept the child support agreement if it is just and equitable to do so (section 98U(2)).
If an agreement is accepted while the Registrar is considering a change of assessment application, the assessment will be based on the agreement rather than on a change of assessment decision, although the change of assessment process may continue for the purpose of varying a provisional notional assessment and therefore the notional assessment amount. The notional assessment is used to determine the receiving parent's entitlement to Family Tax Benefit (section 146D(3)).
Where parents already have an agreement in place, and a new provisional notional assessment has been issued, a parent may request a change of assessment to vary this provisional notional assessment (section 146C). A change of assessment decision will relate only to that provisional notional assessment.
If the agreement ends and the assessment reverts to the administrative formula or is based on a new agreement, any change of assessment decision affecting the previous notional assessment will not affect the assessment. Parents can apply to change their assessment or to vary the provisional notional assessment that is issued under the new agreement by applying for a new change of assessment decision if they still require a change due to the special circumstances in the case.
Appealing to court in regards to SSAT - A matter of Law:
I sincerely wish you luck.
However, I could imagine that there is the potential for a veritable nightmare. Unfortunately I believe that some court decision makers may try to shirk away from dealing with CSA matters (few are well oiled in that area) and may summarily dismiss. I'm certainly aware of 1 matter that took this path. It was on as the magistrate was "very interested in this one", my understanding was that it was a no-brainer (eg just 1 of the many points was that the "parent and partner equally contributed to the businesses that they ran according to CSA/SSAT" but managed to equally share the income between them with the parent's income 5 times the near slave income attributed to the partner). However, that magistrate was taken ill, the replacement "summarily dismissed".
It would surprise me little if SSAT were aware of such, that they would then take a dismissal as reason for no case.
Will123, an application has to be made to the CSA before they have the authority to register a case. Only parent's or eligible carer's (non parent carers) can apply. As such you could apply and perhaps this is the way to go. There are also limitations as to how far back a parent can claim. Normally 3 months (take CSA's normal with a great pinch of salt) or 9 months if exceptional circumstances apply (and the CSA can very easily consider normality as exceptional).
There could be many reasons, only the other parent could tell you this and then only if they wanted. Do you see the child? If not, then that could be some sort of indicator.
You may also want to use the Calculator available on this site from the home page to determine how much CS you would be liable for (cover yourself by assuming that they will additionally try to grab 9 times the monthly payment). Note only the Advanced Calculator is up-to-date.