ACT Child Support - Change of Assessment Queries

[hassall]

Thank you Rob Legat

The last AAT hearing was on the phone, I was arguing for a legal definition of definition of "child support" as per definition in the ACT to apply in a clause. They totally were not interested but did suggest I should lodge a CoA - which I did that night.

Can I ask for the questionnaire in my objection to the initial CSA decision or does this only kick in with the AAT, i.e. ask for a full disclosure of both parties circumstances (which is what I asked for under many sections of the Guide and Act to no avail and it appears that silence is an option on the grounds that the other party does not want me to see their financial circumstances - I pointed out that if this goes to the AAT or Court that information is a prerequisite!)?

A key point was how can the Decision Maker make a comparison of like for like without knowing the financial circumstances one of the parties? Early in our discussion they said that after reviewing payslips etc that might impact my child support - then refused to request that evidence.

With regards to your point 2, I assume this is where I would be seeking anything that is not provided in point 1 (!) - but I would have thought the questionnaire would cover:

• Property, assets and liabilities
• Business profit/loss/turnover
• Payslips

There is not really much else out there, or can I ask for the other party's highest tax returns prior to separation do demonstrate work history? It seems the catch 22 is that they will not seek pre separation records?

Do you agree in large that I should be focusing on:

• Is it reasonable for me to expect the other party to work close to full-time given they have an extensive work history prior to separation but circumstances have allowed them to manipulate the welfare system after separation (eg why did they not choose to study in the first 3 years)?
  
• Is it reasonable for the other party to have studied for 2 years and state that was so that they could start a new business (which is a requirement of Centrelink's NEIS) that has a tiny turnover and will no way be a source of income for child support purposes and there is a 16 year track record of their other small business deriving an income despite various mini-ventures?
  
• Is it reasonable for me to suggest that the other party is using that small business as a means to avoid full-time employment?
  
• Why did the other party not pursue paid employment in the area of their diplomas, complement their previous work history and instead start another very small business?
  
• Is it reasonable to suggest that if that CSA/AAT will not establish the working history prior to separation that regardless of the attempt to start a small business their actual earning capacity if they worked full-time is their current hourly rate from the bookshop times (say) 37.5 hours a week?
  
• Is it reasonable for me to support the other party while they start yet another business?
• Is it just and equitable on the grounds above after documentation is provided showing I have no money, massive mortgage and have the kids 50/50 (one 6 nights and the other 7).

Thank you so much, you are very kind to offer your knowledge on a forum like this.

 

[hassall]

Hi Sammy01

I think our circumstances are slightly different because the other party does such a low turnover, they were selling their artwork and now handmade cosmetics. They can only deduct against what they turnover so in this case, I suggest they are getting fairly low deductions (in the scheme of things), are still working part-time and receiving Centrelink and getting FTB and child support.

Participating in Centrelink NEIS also requires rigid and regular profit/loss statements in order to keep receiving welfare (and the card that goes with it).

It is actually all just rather sad.

 

[hassall]

So child support is a fair chunk of "their" budget.

 

[Rob Legat - SBPL]

"Just" and "equitable" rarely comes into it where child support is involved. The system tries for that, but it can be difficult to achieve.

Employment is a hard area to police. Someone who avoids working to avoid paying support is one thing, and it does happen. But this situation is something different. A business owner, self employed, is technically employed. They cannot be compelled to find another job, or take on extra work. This issue is that if the business does not perform then they don't get paid.

CSA/AAT are fairly wise to the ways people get around showing an income, but it's not foolproof. For example, if the person runs a hobby business which isn't profitable, and relies on a partner's income instead, then that is going to help them evade paying child support. The partner's circumstances will be requested in the financial questionnaire, but it isn't always followed up if it isn't. But even if they are, the partner isn't liable for paying child support, so there's not much they can do about it unless the case can be made that the parent's income is somehow being diverted to the partner.

 

[hassall]

Thanks again Rob Legat

There is no "other half" supporting the other party with income, so that one is out. They are running the equivalent of a hobby business, works part-time hours in a book shop and gets welfare, FTB and my child support. It really is as simple as that.

As such, a track record of 16 years in the business operations not deriving an income (they did that in their spare time when working full-time and this is what I believe should happen now) is "unreasonable".

Is it reasonable that they did a double diploma over two years to start the same sort of business but needed a new business ABN to qualify for a Centrelink scheme - this demonstrates no intent to work in paid employment. This is where work history is really important. When I first met them they were managing retail stores and working 6 days a week - do you have any advice on that aspect of my case. Their life choices continue to expand the timeframe they have not worked full-time. Will the AAT consider that the other party has indeed worked full-time and has extensive experience in retail and as a project officer for an NGO peak body?

Do I have the right to expect that the other party could work full-time in paid employment and estimate an earning capacity if they were working full-time? No one can force that person to work, but they are making a choice to derive no income through making and selling lipstick for goodness sake. This comes under parents sharing equitably jargon.

This is in addition to the fact that they can pay all their bills and mortgage and I cannot (just and equitable).

Rob, if you have any tips/areas that I should focus on in my objection and AAT (because I have lost complete faith in CSA) with your knowledge of prior cases that would be invaluable.

I really, really appreciate your time and efforts.

 

[Rob Legat - SBPL]

I think you're going to be hard up against it. I doubt the AAT (or the CSA, for that matter) has the power to make a determination as to the worth or quality of the business in which the other party operates.

You can lay it all out for them. I don't think the historical activity will be of much/any use. The AAT is more likely to look at the ability to work, their qualifications (as to where they could work) and what they are actually doing. That the business doesn't make much is a secondary consideration.

It's possible (but not in the least bit probable from what you're saying) that their business could take off tomorrow and earns a ton of money. I think factoring in that unknown is beyond the scope of the AAT.

 

[hassall]

Thank you Rob Legat, doesn't sound positive.

So the fact that they have up to $400k in equity, I cannot pay my mortgage down etc etc. that the whole situation is indeed unjust and inequitable, that the other party is using child support to prop herself and her business up and not being spent mostly on the children (it is not possible) - means jack diddly squit?

Why am I not surprised?!

I know you are not giving legal advice, but part of me thinks I should not object, fix up the increased child support that will result from the Decision Maker inputting my gross salary and play the longer game...

Perhaps I will post when I received their decision in writing?

Have a wonderful weekend and thank you again.

 

[sammy01]

ok so what you need to understand is that the AAT will need you to make a case. The case is not that it is unfair, the case is not that the ex is a liar.... The case you need to make is that CSA failed to correctly apply

Remember - AAT - Administrative Appeals Tribunal... So it isn't that they made the wrong decision, it is that they didn't follow the right rules in making the decision and hence the decision is wrong.

 

[hassall]

Thank you

Yes, I need to wait for the decision to be made. I probably annoyed the Decision Maker as I asked for every legal reference to every aspect of their decision (not seeking payslips, giving the business 12 months to demonstrate a profit - what their definition of a profit is (i.e. $500/year ain't going to pay for much for the kids), why they cannot compare like for like financial circumstances etc etc.

So I have a clear written record (including making a complaint if they input my gross salary and do not input the other party's last year's gross salary) of asking why, why, why and where, where, where in the legislation or the Guide.

Will let you guys know what they come back with, must be soon...

 

[sammy01]

nope it won't be soon... Mate I had a dispute... The reason? she wanted child support to work out the care % IN HOURS. not nights like normal people... Based on hours she had a few more % and that significantly changed the payments..... It took 6 months for them to work out the bleeding obvious... AND they got it wrong...They got it right on appeal... She then took it to aat... and lost there... So it was close to a year from assessment to resolution.