NSW Complicated Child Support Circumstances - Help?

[marcellaj]

There is a long story behind this and I’m happy to answer questions for context, but my questions are relating to my husband and father of our two kids, who has this year discovered via court-ordered DNA that he has fathered a child from a one night stand that predates our relationship.

Never met the child, haven't seen mother since conception, she is hostile and has done some crazy and criminal things in the process of all this and they basically can't be contacted other than via lawyers.

So my questions are:

- We found out today from Child Support Agency, 2 months after court, that the judge ordered to backdate Child Support payments to 2017. The Child Support application was only submitted this year, DNA testing only happened in July this year and the court was finalised in September this year. How can he do that?

- We have lawyers. Should they have let my husband know about this prior to now? We have never received a copy of the court order (husband didn't attend; the lawyer did on his behalf).

- Can this decision be appealed?

- Does the fact that my husband is the sole income earner for our family and we have established a life where we have kids, debts and rent etc and in doing so did not take into consideration another child to support, as he only just found this out this year and confirmed in September (the child is 6) count as a special circumstance when it comes to a COA?

i.e as opposed to a couple that split and he then remarries, new kids etc and he’s known about his obligation to support another child the whole time so should have budgeted for that

- For example, the self-support amount is ~$24k, our rent alone that he pays in full is ~$43k per annum, childcare is about $17k p.a etc let alone debts! And we don't live in a lavish house, we just live in Sydney with 4 of us in a 2-bed semi with a mould problem! We need to move and if anything, we’re looking at paying more rent because of Sydney. (Not a question, just background info)

- On top of the amount they assessed him as having to pay, they now also are adding this backdated amount which he can’t pay in full as we don’t have it, so they said they would add it onto his normal payments, doubling them. Surely something can be reassessed here - if he can’t afford the payments as is, how can he afford double that?

- Has anyone used one of the companies that assist parents with completing COAs and dealing with CSA (eg My Child Support)? Yay or nay?

There is no problem paying child support in general for the child, no one has issues with that, but to backdate it prior to the point where this was even brought up or paternity was ever confirmed seems wrong and to not be able to take the situation into account properly financially seems wrong?

The mother has declared $0 income (we don't know her from a bar of soap so who knows how true that is) but she does have other child/ren from other relationships under the age of 18 (if any of that matters).

Thanks in advance!

 

[Rod]

What is the date on the original court application by the other mother? Does it match the date the judge gave?

 

[marcellaj]

What is the date on the original court application by the other mother? Does it match the date the judge gave?

It’s in April 2018, not a match

 

[Rod]

Ok, that rules out the first obvious date. Has the judge given reasons, or quoted the law that allows him/her to backdate the order?

Your lawyers should be the ones answering your questions.

In the meantime I do not know about the backdating but will do some research into it anyway. It would be great if the judge provided the reference as it would save me time.

 

[sammy01]

I'd suggest you appeal through CSA and then take it to AAT.
Easier and cheaper than appealing through courts.

But according to CSA rules, a magistrate can backdate up to 7 yrs.

Read the bit under this title.

The period for which the assessment can be changed
on this site.

2.6.1 When Can the Registrar Consider Changing an Assessment? | Child Support Guide

 

[Rod]

Hmm, I checked and it appears the court can backdate up to 18 months without reasons, and up to 7 years with special circumstances and reasons written into the court record.

Not sure CSA can hear the appeal when a court has made the order. Might need to appeal through the court, but don't like you chances unless an error has been made.

 

[marcellaj]

Thanks to you both for your replies.

The only way we found out about the backdating was from CSA themselves; we don’t have a copy of the court order (nor have ever seen it) but after court, the lawyer sent an email stated what the orders were and they just said that he was to be assessed for child support by CSA. Nothing about backdating whatsoever.

Nothing has been received since then and all the CSA rep said was ‘the judge said it was to be backdated’. But we don’t know when or where he said that!?

Have contacted the lawyer about it but haven’t received a reply as yet.

 

[sammy01]

To clarify... appeal to csa and aat. But appeal based on doubling the amount as being excessive. NO argument he has to pay the back pay (assuming you get paper trail proof that the courts ordered it) But doubling it is excessive. Sure pays it off quickly but leaves him broke...

 

[Scruff]

We found out today from Child Support Agency, 2 months after court, that the judge ordered to backdate Child Support payments to 2017. The Child Support application was only submitted this year, DNA testing only happened in July this year and the court was finalised in September this year. How can he do that?

There is no problem paying child support in general for the child, no one has issues with that, but to backdate it prior to the point where this was even brought up or paternity was ever confirmed seems wrong and to not be able to take the situation into account properly financially seems wrong?

The whole Child Support system is a joke, especially when it cones to non-custodial parents. However in this case, I'd say be thankful that it is only backdated to 2017 and not further. The Courts can backdate a lot futher than that.

The mother has declared $0 income (we don't know her from a bar of soap so who knows how true that is) but she does have other child/ren from other relationships under the age of 18 (if any of that matters).

She definately doesn't have zero income, but probably has a heap of "non-assessable" income. Given the lengths that she has gone to to get child support in this case, you can bet that she is already receiving support for her other kids. Where I live, there is a very high concentration of public housing and many of the tenants are young single mothers with numerous children to numerous fathers. They are essentially "professional mothers" living big off the huge amounts of child support they get. I'm not saying that is the case here, but it is a lot more common than you think it is. A lot of them squander the money that is supposed to be for raising the children on drugs - and the best way to fight that type, is to get custody of the child. Again, I have no idea if that is the situation here.

Never met the child, haven't seen mother since conception, she is hostile and has done some crazy and criminal things in the process of all this and they basically can't be contacted other than via lawyers.

Can you elaborate a little on this behaviour?

For example, the self-support amount is ~$24k, our rent alone that he pays in full is ~$43k per annum, childcare is about $17k p.a etc let alone debts! And we don't live in a lavish house, we just live in Sydney with 4 of us in a 2-bed semi with a mould problem! We need to move and if anything, we’re looking at paying more rent because of Sydney. (Not a question, just background info)

Several things here. I can't remember how the CSA assessments are done or what they take into consideration (too long ago for me and things have probably changed a lot since then anyway). But if living expenses are considered, then once you move and are paying higher rent, you would need to ask CSA for a new assessment. The higher rent may reduce the child support but probably not by much.
Also, how long have you been at your current residence and have you notified the landlord (or agent) about the mould? If you have and the landlord hasn't done anything about it, then that is a very serious legal issue in itself. In short, mould can be deadly. If you think you may have a case here, then raise a new question in the "Property Law Forum" - especially if the mould (and lack of rectifying it) is the reason that you want to move. You could be entitled to substancial compensation.

On top of the amount they assessed him as having to pay, they now also are adding this backdated amount which he can’t pay in full as we don’t have it, so they said they would add it onto his normal payments, doubling them. Surely something can be reassessed here - if he can’t afford the payments as is, how can he afford double that?

If the court made a ruling in regard to payments (probably based on a CSA assessment), then it is possible that a court order would be required in regard to paying the backdated amount by installments. Even though CSA often behaves like they can do whatever they like, they can not overrule a court. You should look into this and find out if the court actually made any orders in regard to the weekly or monthly amount to be paid. If it did, then I doubt that CSA can double it without the approval of the court. With that said however, the "backdated" amount is now a CSA debt, so CSA may be treating it seperately - which may or may not be allowed depending on the details of the court orders. You should probably take this issue back to your lawyer and have them take a close look at what is actually going on. At the very least, have them check that CSA is acting within their legal boundaries and that you are not paying any more than what the court has ordered.

My sympathies on having CSA butt into your lives. They can be an absolute nightmare and unfortunately, the whole family will now have to endure this until the child turns 18. With any luck, once you get these initial problems sorted out, you won't have any further issues with them. I wouldn't count my chickens though.

 

[The Cheese]

The first thing to look at is the start date of the child support assessment. When a court makes a declaration of parentage for child support, they do it under section 106A of the Child Support Assessment Act. The only way to go to court to get one of these orders is if the mother had applied for a child support assessment first, and the CSA refused the application due to lack of proof of parentage (birth certificate etc). If the court makes the orders under s106A, the outcome is that the earlier refused application for child support is now accepted. This means it is only valid from when the mother made the application for child support. If the mother made the application for child support back in 2017 and it was refused, and then she used this application to apply to the court, it would make sense that the child support would start in 2017.

Some suggestions

• Ask CSA for a copy of the court order. THEY HAVE TO GIVE IT TO YOU. As your husband is a party to the orders and it is the entire basis of the assessment, they have to give it to him. The Child Support Guide, which is the official policy of the Department of Social Services (CSA's parent department) states here that they will provide you a copy of the orders if requested.
• Find out how many times the mother applied for child support and when. Again, as your husband is part of the child support case, they have to provide you with this information
• If the mother applied multiple times and CSA refused the case multiple times, ask CSA which refusal the mother applied to court against. The Child Support Guide states that CSA needs to figure out which application she went to court over. If she applied against a more recent child support application, they may have to change the start date of the case to 2018.
• The mother only has 56 days to make the court application, starting from when CSA refused the child support application. Otherwise she needed to seek leave. Once you get a copy of the orders, you can see if she did the right thing or not.

Can the decision be appealed? That depends on which part of the decision. The start date of the child support can be, if you find out the mother had multiple applications and child support used the wrong date. I would just ask them to fix it first if you find out the date is wrong.

As far as using a third party company, such as my child support, I would steer well clear of them. You would do far better with CSA's internal complaints process. For instance, if the person on the phone can't adequately answer the above questions, tell them you want to make a complaint as the decisions can't be adequately explained to you. This will, eventually, get you to a complaints officer and in my experience they are quite good in digging into things. In fact, a lot of the staff don't like complaints officers because they do actually dig into things.

I hope that helps. The Guide is a very good resource, but feel free to DM me if you have any quesionts