Parents have a primary duty to maintain their children. That duty has priority over all other commitments of the parent other than commitments necessary to enable the parent to support themselves. A Child Support Assessment dictates the amount of child support you are required to pay the other parent, and is calculated based on a formula that has regard to the income of the parents, and the care arrangements of the children and the costs of the children.
Options to challenge a Child Support Assessment
There are two ways to challenge a child support assessment including as follows:
- Application to the Child Support Registrar:
- where there has been a change in circumstances;
- Where you think the assessment is incorrect;
- where there are special circumstances
- Application to the court for a departure order.
Reasons you can challenge your child support assessment
Change in circumstances
If there have been changes to the care arrangements of the children, changes in the number of children and changes in income levels, you can apply to the Child Support Registrar for a change to the formula for the assessment, based on the change in circumstances. You can notify the Child Support online through your MyGov account of any changes to your situation that will affect your child support assessment.
The formula will be recalculated once the changes are made to update the assessment rate.
You believe your assessment is incorrect
Pursuant to section 80 of the Child Support (Registration & Collection) Act 1988 (“CSRCA”), you are able to object to a child support decision on the basis that:
- The information used in the assessment is incorrect;
- all relevant facts have not been considered;
- relevant details have been missed;
- new information has become available;
- the law/policy has not been applied correctly;
- the wrong decision.
A common example of when an objection is lodged by a parent is where a parent alters (usually reducing) their income estimate for the year: s60 & s62 CSAA.
If you think that the child support assessment is incorrect, you are able to lodge an objection, via an objection form, with the Child Support Registrar within 28 days of receipt of the decision: s81 CSRCA.
If your objection is in relation to the care percentage of the child then you can lodge your objection at any time. You should lodge your objection as soon as possible with respect to care percentage. If you do not lodge the objection within 28 days of receipt of the care percentage decision, you will not be able to backdate any changes from the date you lodged your objection unless there are special circumstances: 80A & 87AA CSRCA.
If you disagree with the response to your initial objections, you can appeal the decision to the AAT.
Decisions that can be appealed to the AAT include:
- a change of assessment
- the children’s level of care
- income estimates
- non-agency payments
- refusal of an extension of time lodge an objection.
Alternatively, you may be able to appeal to the Federal Circuit & Family Court of Australia (“FCFCoA”) on a question of law: s104 CSRCA.
If you are appealing a child support decision and you cannot afford to keep paying the required amount, you may be able to apply to the FCFCoA for a stay order, which is a temporary order that may in circumstances stop Child Support from enforcing child support debts against you.
Alternatively, you can apply to the Child Support Registrar for a departure from the administrative assessment of child support where there are ‘special circumstances’: s98B & s98C Child Support Assessment Act 1989 (“CSAA”).
The relevant forms when you are seeking a change in assessment based on special circumstances, can be accessed here.
The criteria that the Registrar must be satisfied of before making a determination are the same as is required if a party is making an application to the court to depart from an administrative assessment of child support: s90C CSAA.
The power to depart from an assessment of the Child Support Agency, whether by application to the Child Support Registrar or to the Court, is provided in s117 of the CSAA. It requires a 3 step process to be undertaken to determine whether a departure order should be made as follows:
- Establish a ground for departure in s 117(2) of CSAA;
- Consider whether the departure order is just & equitable within meaning of s 117(4);
- Consider whether departure is “otherwise proper” within meaning of s 117(5).
The Registrar can only change the assessment if one or more of the ten grounds for departure is established in the special circumstances of the case: s90C and s117(2) CSAA.
The ten reasons you can apply for a departure from your child support assessment are:
- Reason 1 (2.6.7). The costs of maintaining your child are significantly affected by high costs of enabling a parent to spend time with, or communicate with your child (the costs must be more than 5% of your adjustable taxable income).
- Reason 2 (2.6.8). The costs of maintaining your child are significantly affected by high costs associated with the child’s special needs.
- Reason 3 (2.6.9). The costs of maintaining your child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended.
- Reason 4 (2.6.10). The child support assessment is unfair because of your child’s income, earning capacity, property or financial resources.
- Reason 5 (2.6.11). The child support assessment is unfair because the payer has paid or transferred money, goods or property to your child, the payee, or a third party for the benefit of your child.
- Reason 6 (2.6.12). The costs of maintaining your child are significantly affected by the high child care costs for the child (and the child is under 12 years of age).
- Reason 7 (2.6.13). The parent’s necessary expenses significantly affect their capacity to support your child.
- Reason 8 (2.6.14). The child support assessment is unfair because of the income, earning capacity, property or financial resources of 1 or both parents.
- Reason 9 (2.6.15). The parent’s capacity to support your child is significantly affected by:
- their duty to maintain another child or person;
- their necessary expenses in supporting another child or person they have a duty to maintain;
- their high costs of enabling them to spend time with or communicate with, another child/person they have a duty to maintain.
- Reason 10 (2.6.16). The parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child.
If one of the ten reasons for a change of assessment is established the Registrar must then consider whether the change of assessment is ‘just and equitable’ and ‘otherwise proper’.
Is it just and equitable for you to get more child support?
Once the Agency is satisfied you have a reason for applying for a change of assessment, they will consider whether a change is just and equitable: s117(4).
This includes considering:
- the nature of the duty of a parent to maintain a child
- the proper needs of the child having regard to:
- the manner in which child is being and the parents expected the child to be cared for/educated/trained;
- any special needs of the child.
- the income, earning capacity, property and financial resources of the child
- the income, property and financial resources of each parent who is a party
- the earning capacity of each parent who is a party
- the commitments of each parent who is a party that are necessary to enable the parent to support himself/herself. This also includes any other child or another person that the person has a duty to maintain
- the direct and indirect costs incurred by the carer entitled to child support in providing care for the child
- any hardship that would be caused to the child or a carer.
In having regard to the earning capacity of a parent of the child, under section 117(7B), the court may determine that the parent’s earning capacity is greater than is reflected in his/her income only if the court is satisfied that:
- one or more of the following applies:
- the parent does not work despite ample opportunity to do so;
- 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;
- the parent has changed his or her occupation, industry or working pattern; and
- the parent’s 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 the parent’s caring responsibilities; or the parent’s 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.
Whether the change to the child support assessment is otherwise proper
If you have a reason for a change of assessment and the change is considered just and equitable, the Agency then considers whether the change is otherwise proper, considering:
- the duty of a parent to maintain their child; and
- the effect that the change of assessment would have on any entitlement of the carer or the child to an income tested pension or benefit: s117(5) CSAA.
What is the process for applying for a change of a Child Support Assessment?
- Lodge a change of assessment with the Child Support Agency. There is a form that the Child Support Agency requires you to fill in when you are seeking a departure from your assessment based on special circumstances. The Application should disclose one of the ten reasons Click here to access it.
- The Agency will provide a copy of your application to the other parent and they will be given an opportunity to respond.
- Each party is provided with an opportunity to discuss the application with a decision maker before a decision is made.
- The Registrar (or a senior case officer, being a delegate of the Registrar) can make enquiries and carry out an investigation. If the Registrar requires further information from a party or third parties, a notice to provide that information can be issued.
- If the issues the subject of the application are too complex, the Registrar can refuse to change an assessment and request that the applicant file a court application. If the Registrar refuses to make a change to the assessment (2.6.3), the parties must be provided with written reasons for that decision.
- For your application to be successful, the Registrar must be satisfied of the 3 step process specified above (s117 CSSA);
- The Registrar will issue written reasons for the decision to change an assessment including the reasons for establishing that special circumstances existed in the case. This provides the parties with a clear understanding of the relevant considerations and decision making process. The Registrar will also document the reasons for the type and duration of the decision in the notice of decision.
- The Registrar will amend the administrative assessment to give effect to the change of assessment decision and give the parties a written notice of the assessment (CSA Act sections 75 and 76). The assessment notice must include information about the parties’ right to object to the Registrar’s decision (4.1.2), and to apply for an AAT first review if they are aggrieved by the Registrar’s decision on the objection (section 76(3))
Departure decisions can also be the subject of objections. If the objection is not successful you can appeal the decision to the Administrative Appeals Tribunal (AAT). Appeals from the AAT lie to the Federal Circuit Court and the Family Court of Australia on questions of law.
Want more information?
If you are seeking more information about challenging your child support assessment, contact us and book a reduced rate initial consultation with one of our experienced Brisbane Family Lawyers to obtain information in relation to your individual circumstances.