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Post #16509 by greebo on September 18th 2008, 12:18 AM (in topic “Treatment of pension by CSA”)

Treatment of pension by CSA:

Case law sets the 50/50 divorce settlement split in the UK.  It cannot not take into consideration that the non custodial parent may go abroad and get an unreasonable amount of child support.   I do not think it is reasonable to expect a court ruling to try and legislate for the potential action of foreign legislation 6 years down the line.  After all if all marital assets are treated as capital for the purposes of a settlement by the courts (both UK and Australian), why should CSA think it is ok to treat money available from a pension fund differently to an equal sum of money given to the payee upfront on divorce?  After all payee shouldn't she be expected to use this to generate income rather than claiming dole?

The 800 UK pounds/month payments increased to about $35k/pa under the Oz CSA. But this is irrelevant now.  I must admit that I am bitter that CSA basically agreed that payer could not support himself but still dismissed it.  Without my help (I paid for everything for 3 years), payer would have gone bankrupt.  This would have lost him his job and hence payee would have got minimum payments!

I agree CSA do have the right to assess payer as generating the max possible income but their own documentation states that discretion should be used.  To quote the CSA's own documentation "once CSA has determined that parent's income , earning capacity are not reflected in child support assessment, it must decide whether this produce an unfair result".  Letters from the payee's solicitor show that payee agrees that the payer will take the lump sum to re-establish himself so it seems harsh that CSA should effectively support her in reneging on this deal by effectively saying that payer should not be able to do this (payee told CSA about lump sum in cross application).   CSA guide also says "in each case it will be necessary to decide whether the (lump sum) payment results in one parent being in a better financial position compared to the other parent".  In the CSA's guide, the example given of when a payer's financial resources are taken into account is that of a payer who has a low income but has a lump sum (not from his divorce settlement) which can pay off his mortgage, while the payee is unemployed and lives in public housing with 3 kids.  In our case, payee is working, and has almost paid off house, while payer is retired, has 2 other dependents, lives in military housing (provided for only as long as I stay in military) and has no assets apart from the lump sum (which is less than capital in payees home and would pay for less than 50% average property in UK) and is his share of settlement.   Our argument to SSAT would be on natural justice grounds that CSA have not considered whether decision was fair to both parties or the relative financial situations.

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Post #16477 by greebo on September 17th 2008, 5:50 AM (in topic “Treatment of pension by CSA”)

Treatment of pension by CSA:

Divorce settlement took place in the UK.  In UK pension funds are treated as marital capital assets in the property settlement, much as superannuation is in Oz.  In this case, house was valued at a certain amount but the payer's pension fund was worth more.  It was decided that payee would get all available assets upfront to enable her to relocate to Oz and would get X% pension fund through a pension sharing order to make up her share of the settlement to 50% of all marital assets.  Also payer would get majority of debts from marriage.

Settlement was made 2 weeks before payee went to Oz so order directed husband to pay 800/month while she was in UK with understanding that payee would have to go to Oz CSA (who had advised payer's lawyer that as payee would initially at least be unemployed in Oz, that a CSA assessment, if it were higher, would overrule any UK child support assessment).    Settlement reached was straightforward by UK standards - basically payer was forgoing money upfront in interests of the children, for money at a later stage.

While in UK it was assumed that Oz CSA would be broadly similar to UK CSA system.  Back in 2002, the CSA website provided little info on how their system worked and while payer's lawyer did speak to CSA, he was given cursory and misleading advice (for example they told him that payer would get substantial reduction for contact costs).

After getting initial settlement (the max possible of around $32k), it was clear that payer would be unable to support himself, pay CSA and minimum debt repayments.  He made a COA under reasons for self-support but CSA ruled that UK cost of living was irrelevant (for self support amount) and that it would be unfair to take debts from a divorce settlement into consideration as this would mean that CSA would be amending a court order settlement.  This seems to be diamtetrically opposed to the stance they are taking now as in effect payee will be getting a larger cut.  Had payer been hardnosed and not given a damn about his kids, he could have fought to take 50% money upfront giving the payee less money to re-establish herself with, and as her larger share of pension pot would mean a smaller pension available to payer, a far smaller child support income now.

Had the pension fund not been included in the settlement, I would entirely agree with CSA's stance but it seems unfair that the $250 000 of cash, the payee had when she rocked up in Oz and made her initiall application was ignored (as it wouldn't be fair to take the settlement into account) but the CSA in effect believes that the payer shouldn't be able to get a far smaller amount, to enable him to finally re-establish himself, when he retires.  Payee will never be expected to use her pension towards kids as she gets her lump sum/pension just after kids have all turned 18.

All I can say to any potential payers negotiating divorce settlements, who may hit retirement before their kids turn 18, is fight to get any cash upfront or fight to keep the house.  Let the ex have the lion's share of the superannuation and the pain of trying to get back on their feet with no money upfront - after all, they are more likley to get welfare housing as a family unit than you are!

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Post #16472 by greebo on September 16th 2008, 8:03 PM (in topic “Treatment of pension by CSA”)

Treatment of pension by CSA

My husband is taking a lump sum from his pension fund (which is the norm for his pension).  CSA have deemed that this is salary sacrificing and have given him higher assessment.  As far as CSA are concerned the fact that the pension is his share of his property settlement is irrelevant.  We submitted an objection but while CSA changed the income figure (SCO had used wrong figure), they still deemed reduction to be salary sacrificing.  SCO again made no mention of property settlement and just said that "payer has provided large amount of material ………….but there is nothing in his submissions which convinces me that the child support assessments should be based on anything other than his income".

This means payee gets around $200/month extra.  Is it worth going to the SSAT or should we just give up now?  I do think though that this could have implications for anyone out there who is negotiating a divorce setttlement if they will retire while still paying CSA.  If my husband had any inkling that this would happen, he would have insisted on getting money up front from his divorce rather than doing the decent thing and letting the payee take all the capital assets and a smaller sahre of his fund to allow her to restablish herself quickly.

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Post #16416 by greebo on September 12th 2008, 7:41 PM (in topic “Please discuss the self support amount”)

Please discuss the self support amount:

I agree with Question! re high earners.  What really hacked me off too is that they use the same self support amount regardless of where you live.  My husband is UK citizen and has always lived in UK - the self support amount is utterly inadequate to support someone living in UK.  When he got his first (maximum) CSA assessment a few years ago, he put in a COA arguing that he couldn't support himself but this was rejected.  Basically they said that as he was a very high earner, he was being greedy so tough…… the irony of it is that husband was not actually considered a high earner in the UK!

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Post #16309 by greebo on September 9th 2008, 6:58 PM (in topic “How to follow up on letter sent to Acting State Manager CSA”)

How to follow up on letter sent to Acting State Manager CSA:

This is slightly off-topic but prompted by BigRed's comments.  Does the CSA have any performance indicators regarding replying to correspondence, making decisions on COAs/objections?  If so, what are they, where can we find them and how well is the CSA performing against them?

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Post #16120 by greebo on September 3rd 2008, 7:18 PM (in topic “Will CSA take into account my partner's income”)

Will CSA take into account my partner's income :

The CSA's official line does not coincide with our experience of dealing with them when change of assessments are under consideration. 

During every case conference, regardless of the relevance to the matter in hand, the SCO has made reference to me.  For example, during last case conference, SCO asked my husband how much I earned.  He declined to answer the question.  Despite its irrelevance to the issue (capacity to earn), her final report stated that I had a high income.  All we can assume is that she asked the payee to comment on my income and that the payee provided her with unsubstantiated information (as the payee does not know how much I earn and in the UK my income is not considered to be high).  My income is completely independent of my husband (I am a government employee!).

SCO obviously did take my income into account as although the payee's COA for 'capacity to earn' was rejected, she instead hit my husband for capacity to pay instead.  An objection has been submitted.

Last edit: by greebo

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Post #15875 by greebo on August 30th 2008, 4:13 AM (in topic “SSAT Financial Statement”)

SSAT Financial Statement

I've been looking at the SSAT process with regard to applications for appealling CSA decisions.

Given that the Act relating to child support specifically states that the income of 3rd parties (i.e. new partners) are not to be taken into consideration as they have no legal duty to maintain the children, does anyone know why the Financial statement asks for the income of other adults living with the applicant?  Also can an applicant refuse to provide this information under privacy ruling and if so, would the SSAT take a dim view of this?

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Post #15847 by greebo on August 29th 2008, 5:46 PM (in topic “Consideration of evidence by CSA”)

Consideration of evidence by CSA

Some months ago, we submitted an objection on several grounds but the main reason was that the CSA used an income that was just plain wrong  - a  pension income that we could never receive due to a pension (superannuation) sharing order that was put in place as a result of the divorce settlement.  We submitted copies of the pension sharing order and court documents both before the original COA decision was made and once more, in the objection paperwork.

We have just spoken to SCO to find out when a decision would be made and in course of discussion he said that although he could not tell us the final decision that the original (incorrect) income figure would not be used as the payee had confirmed to them that a pension sharing order was in place.  I find this unbelievable as it implies that had the payee not done so, their word would carry more weight than UK Court documents and pension scheme financial paperwork givng reduced pension income.  Is it just us or is this pretty unreasonable?

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Post #15688 by greebo on August 27th 2008, 7:02 PM (in topic “Variation on Capacity to Earn”)

Variation on Capacity to Earn:

Re:  payer/payee bias.  In our last COA, payee asked for payer to be assessed for CTE as he was retiring.  Payee also told SCO that she was leaving her job and thus it would be unfair to make assessment using her current income as it was unlikely that she could find alternative employment (despite being very employable due to her experience/qualifications).  Payer had to provide masses of info to support his reasons for retiring (child care responsibilities, proof that retirement wasn't to minimise CSA etc) while payee provided nothing.

Due to evidence, SCO couldn't hit payer for full CTE but instead hit him for Capacity to pay (using his super lump sum - despite it being past of property settlement).  In the same report, SCO stated that it would be unreasonable to make the CSA assessment based on the payee's current earnings (for the unsubstantiated reasons payee gave!).  Hardly equitable treatment of both parties.

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Post #13299 by greebo on July 12th 2008, 11:07 PM (in topic “UK CSA Reforms - Parkinson influence - suspiciously like pre 2006 Australian CSA!”)

UK CSA Reforms - Parkinson influence - suspiciously like pre 2006 Australian CSA!:

As the CSA use the previous year's rate of exchange, actual pension will be £21k.  CSA have grudgingly agreed that he can retire due to child care responsibilities and proof that intention to retire was long standing (ex actually refers to his retirement date in the divorce paperwork from 6 years ago which CSA have seen).  However they have said that he could forego his lump sum associated with his pension (both of which incidentally are his share of the property settlement) to generate a higher income and have come up with a nominal figure (which incidentally is completely wrong - at best it could generate another $10 or so).

They cannot try to justify the working in a different country argument as husband is UK citizen who has never lived in Oz and for the last 5 years he has been assessed at top level of income due to differences in country living costs (if he worked in Oz doing the same job he would earn around $85000 not $130000).  Having said that, although we cannot prove it I think the SCO did have this in mind when she set the nominal figure as it is almost identical to the figure he would earn doing his full time job in Oz!  ANyway we have an objection in progress so we have our fingers crossed that even if CSA do still agree that he should use lump sum (ignoring their own regulations about proerty settlements), that they will have to concede that there is no way that it could generate the £80k+ income.

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