1.2.2 Amendments to the CSA Act
From 1 October 1989, with the enactment of the CSA Act, the Registrar could accept applications for an administrative assessment of child support from carers of eligible children. The CSA Act has been amended from time to time since then. Full details of the amending acts and significant changes are listed below.
From 6 April 1992
- Parents can apply to the Registrar for a change of assessment in special circumstances (2.6) for a child support year commencing on or after 1 July 1992.
- In most cases, a parent cannot apply to a court for a change of assessment in special circumstances for a child support year commencing on or after 1 July 1992 unless the Registrar has already considered an application from one of the parents for a change of assessment (4.3.2).
- Payees receiving more than minimum family payment cannot elect to end their child support assessment (2.10.2).
- Court orders and court registered agreements for child support cease to have effect when the Registrar makes an administrative assessment of child support for that child (3.1.3) (before 6 April 1992, the Registrar would offset any amount payable under a court order with amounts payable under an administrative assessment).
From 11 December 1992
The Registrar can choose an appropriate default income (2.4.4) when making a new assessment for a person whose taxable income for the last relevant year is not available (before 11 December 1992, the Registrar was required to use a default income figure equivalent to 2.5 times average weekly earnings (AWE)).
From 1 July 1993
- A person who cares for a child between 30% and 40% of the nights in a child support year is now considered to be an eligible carer, with 'substantial contact'. The other person caring for the child has 'major contact'. The formula provisions are modified to give effect to this change.
- A payer or payee can no longer revoke their estimate of taxable income unless they made a new estimate election (2.5.6) (before 1 July 1993 a parent could revoke their estimate and have their case return to the previous assessment based upon their income 2 years prior).
- A parent can make a new estimate for a child support year (2.5.6) every 2 months instead of 3 months.
- Penalties apply for parents who underestimate (2.5.6) their taxable income.
From 29 May 1995
- The Registrar can be satisfied that a person is a child's parent if one of a number of 'presumptions' (2.1.3) apply.
- The Registrar must refer a child support agreement to the Secretary if the payee receives more than minimum family payment or sole parent pension. The Registrar can only accept these agreements if the Secretary decides that the agreement passes the 'reasonable action to obtain maintenance' test.
- The Registrar must refuse to accept an agreement if the payee has not applied for a child support assessment and receives more than the minimum family payment or sole parent pension.
From 22 July 1997
The Registrar can now be satisfied that a person is a parent of a child (2.1.3) if:
- the child is born within 44 weeks of the annulment of that person's marriage, or
- the child is born after a marriage has been dissolved but within 44 weeks after a period of cohabitation by the 2 people concerned, or
- the child is born to a woman who lived with the man anytime during the period beginning 44 weeks and ending 20 weeks before the child's birth.
From 23 December 1997
A parent's election to use an estimate (2.5.6) of their taxable income has a limited retrospective effect.
From 1 July 1999
- Payers and payees can object to decisions of the Registrar under the CSA Act (4.1.2).
- Parents can now provide information and make some applications over the telephone (6.2.1), which the Registrar previously required in writing.
- A liable parent can apply for a child support assessment.
- A child support assessment starts from the date the application was lodged with the Registrar (previously backdated up to 28 days).
- Child support assessments are based on both the factual and lawful daily care of the child.
- A payee can apply for a child support assessment for a child in secondary education to continue to the end of the school year in which the child turns 18 (2.5.5).
- The Registrar can include relevant dependent children in a child support assessment from the date of notification unless the Registrar is notified within 28 days of the child becoming a relevant dependent child, or within 28 days of a notice of assessment (2.9.5).
- Changes to levels of care of a child will have effect from the date the Registrar is notified of the change (2.2.6).
- Payees who receive more than the base rate of FTB Part A can elect to end their assessment if the Secretary approves the election (2.10.2). The Secretary must be satisfied that the payee is taking reasonable action to obtain maintenance for the child.
- A payer's step-child is considered to be their relevant dependent (2.4.7) if a court has made an order under FL Act section 66M.
Changes to the change of assessment process
- The Registrar can make a decision to either increase or decrease the amount of child support (2.6.4) payable when making a decision on a change of assessment application.
- The Registrar can initiate a change of assessment in special circumstances (2.6.6) (this is referred to as a Registrar-initiated change of assessment).
- A payee can apply for a change of assessment if they incur child care costs (2.6.12) of more than 5% of their child support income amount.
Changes to estimate provisions
- The final day for a parent to lodge an estimate of their taxable income for the 1998-1999 child support year was extended to 31 July 1999.
- A payer or payee's estimate of taxable income (2.5.6) for a child support period commencing on or after 1 July 1999 can only affect their child support assessment prospectively.
- The Registrar can refuse, review or amend a payer or payee's estimate of taxable income (2.5.6).
Changes to the formula assessment provisions
- The payee's disregarded income is based on the 'all employees average weekly earnings' (AWE) figure rather than the usually higher average weekly earnings figure and extra amounts according to the age of the children for whom child support is payable were no longer added to it.
- The payer's exempt income amount is increased to 110% of the unpartnered rate of social security pension.
- When the liable parent has relevant dependent children, the exempt income amount is increased to 220% of the annual amount of the partnered rate of social security pension.
- The minimum child support rate payable is $260 (previously zero).
- The Registrar can reduce a $260 assessment upon application from the payer, where the person's total income in the first 12 months of a child support period is less than $260.
- In calculating the amount payable in an assessment the payer's liability is reduced by 50 cents for every dollar of the carer parent's income above the disregarded income amount.
- Any supplementary income (exempt foreign income, net rental losses) is added back to the liable parent's taxable income amounts. Reportable fringe benefits are included from 1 July 2000.
- When the parents share care of the children of a relationship, additional amounts are added to the liable parent's exempt income for any children in their sole, major or shared care.
Changes to the assessment period & income used
- Child support is assessed in child support periods (2.3) rather than child support years. A child support period may last up to 15 months.
- Child support assessments are based on the taxable income for the most recent taxation year (2.4.4) rather than taxable income for the financial year before last. The Registrar no longer uses an inflation factor to adjust a parent's taxable income.
- Transitional arrangements applied for all existing cases. The Registrar made a new child support assessment for the child support period starting 1 July 1999, based upon the parents' taxable income for 1997-98, modified by an inflation factor. The Registrar made another new assessment if the payer's 1998-99 tax assessment issued before 1 June 2000, or if the payee's 1998-99 tax assessment issued first and the payee's income would affect the rate of child support.
From 3 May 2000
The CSA Act was amended to allow Australia to give effect to its international obligations in relation to maintenance (1.5).
From 30 June 2001
- A payer or payee can apply for change of assessment if the assessment is unfair because they are earning additional income for the benefit of resident children.
- A non-parent carer is not considered an eligible carer (2.1.1) for a child whose parent or guardian does not consent to the non-parent carer providing care for the child.
- A parent can apply to a court (4.3.2) for an order for departure from administrative assessment (CSA Act section 116), or appeal against an incorrect assessment (CSA Act section 110), or appeal against the acceptance or non-acceptance of a child support agreement (CSA Act section 132) if they disagree with the Registrar's decision on the other parent's objection.
From 2 August 2001
The Registrar can disregard amenity allowances or gratuities paid to prisoners, disability support pensions paid under social security law and totally and permanently incapacitated pension paid to veterans under Veterans' Affairs law when considering an application for the minimum annual rate of child support to be reduced to nil (2.5.4).
From 1 July 2006
- The annual minimum rate of child support (2.4.12) is increased to $320 (indexed each year to the CPI).
- The high income cap for payers is reduced to 2.5 times the annual equivalent of all employees average weekly total earnings (EAWE).
- The circumstances under which a parent's income can be increased for child support assessment purposes because the Registrar decides that the parent has a higher earning capacity (2.6.14) are more limited.
From 1 January 2007
- A payee is able to apply directly to a court if the Registrar has refused their application for assessment (4.3.2) because they were unable to satisfy the Registrar that the person named is a parent of the child or children.
- The Registrar is unable to make change of assessment decisions that affect a period more than 18 months earlier than the date of the application (2.6.1) unless the court has granted leave. If a court grants leave it can specify a period for which an assessment can be changed of up to 7 years prior to the application (2.6.1), and may hear the application itself.
- If a court grants a declaration that a person is not a parent of a child (under CSA Act section 107), the court must, as soon as practicable, consider making an order for repayment of child support (4.3.2) to the person who is not the parent of the child.
From 22 June 2007
- Some changes to the secrecy provisions (6.3.3) including the following:
- The Registrar can communicate protected information to persons as necessary to prevent a credible threat to the life, health or welfare of a person.
- The Registrar can communicate protected information to brief the Minister in respect of a range of circumstances relating to the Minister's duties.
- The Registrar can communicate protected information to a person who has the consent of the person to whom the information relates to obtain that information.
- The Registrar can communicate protected information in specific circumstances relating to missing people and locating a relative or beneficiary of a deceased person.
- A new offence for unauthorised disclosure (6.8.6) of information.
- Removal of the restriction that information gathering by the Registrar (under CSA Act section 161) in respect of third parties is limited to financial information.
- Stay order provisions (4.3.6) have been removed from the CSA Act. All of the stay order provisions are located within the CSRC Act regardless of whether the relevant proceeding has commenced under the CSA Act or the CSRC Act.
From 19 July 2007
The CSA Act was amended to incorporate measures relating to Australia's international obligations in relation to maintenance. These measures were previously contained in separate regulations. There were also minor amendments to the legislation as follows:
- An application for assessment can only be accepted where at least one party resides in Australia. A terminating event occurs in relation to a child support assessment if both parties cease to be resident in Australia.
- An application for assessment from a payee who is resident in a reciprocating jurisdiction must be made through the central authority in the country where the payee resides. The application may be initiated by the payee and given to the central authority to forward to the Registrar, or may be initiated by the central authority.
- An application for assessment from a payer who is resident in a reciprocating jurisdiction may be made by the payer giving an application directly to the Registrar, or by giving an application to the central authority to forward to the Registrar.
- Where the application was initiated by a central authority on behalf of the payee, the central authority has power to veto the ending of the assessment by the payee.
- A child support agreement may be made between parents, one of whom is resident in a reciprocating jurisdiction.
- A registered maintenance liability ceases to have effect if a second maintenance liability is registered in relation to the same child, payee and payer. The Registrar is able to refuse to accept an application for an Australian child support assessment that would override an overseas liability already registered.
- Provisions relating to determining overseas income apply in relation to a payee who is resident in a reciprocating jurisdiction but is covered by an Australian child support assessment.
- There are some increased time allowances in relation to various processes where one party to a maintenance liability is resident in a reciprocating jurisdiction. Generally these increased time allowances apply only to the party who is resident in the reciprocating jurisdiction.
- The date from which an overseas maintenance liability first becomes enforceable is the date that the Registrar receives the application for registration.
From 1 January 2008
- The definition of an income amount order (2.5.1) narrowed which provides parents an increased opportunity to lodge an estimate of income.
- Alteration of estimate provisions (2.5.1) to allow parents to lodge an estimate for the remainder of the child support period, after an income amount order expires.
- Parents can apply to extend the time a relevant dependent child (2.5.5) is taken into account in their child support assessment until the end of the school year if the child will turn 18 during that year and is still in full-time secondary education.
- A payer is able to have their relevant dependent child (2.9.5) taken into account in their child support assessment from the date the assessment started if they advise the Registrar within 28 days of the notice of assessment being issued to them and where notice issued after 4 December 2007.
- The rental property definition is updated.
- Assessment notices (2.9.2) to include only age range of relevant dependent children and children from other child support cases.
From 1 July 2008
- A new child support scheme comes into operation from 1 July 2008. This is the most significant change since the inception of the child support scheme.
- The changes to the scheme build on reform of the family law system which seeks to encourage shared parenting, reduce conflict and make sure child support is paid in full and on time.
- In changing the scheme the Government accepted the report of the Ministerial Taskforce on Child Support, chaired by Professor Patrick Parkinson (In the Best Interests of Children, May 2005). This review was conducted in response to the House of Representatives Committee on Family and Community Affairs report on child custody arrangements in the event of family separation (Every Picture Tells a Story, December 2003).
- The Taskforce found that the scheme needed to be updated to reflect the substantial changes in society since the scheme was first established in 1988. It highlighted the need for a much greater emphasis on shared parental responsibility and a growing recognition of the importance of both parents remaining actively involved in their children's lives after separation.
- The changes to the scheme are significant and therefore the child support legislation has been amended extensively to bring these changes about. A summary of some of the more significant changes to the CSA Act that are operative from 1 July 2008 are outlined below:
- The Registrar will calculate child support using new formulas (2.4.1). There are several formulas which operate depending on whether the parties are parents of the child, or non-parent carers; and whether the parents have multiple cases; and whether a parent is deceased; or lives outside of Australia.
- Child support assessments will be based on the actual costs of children which have been determined according to Australian research showing that, as parental income rises, spending on children rises in dollar terms but falls as a percentage of income, and that expenditure on children increases as they get older. The costs of children represent the best estimate of the amount that parents on average spend on their children according to their income.
- The 'costs of children' based on the combined income of the parents are set out in the 'Costs of Children' table (2.4.6).
Some attributes of the new formula include:
- It uses an 'income shares' (2.4.4) approach to calculate and share the costs of children.
- Both parents will have the same self-support amount (2.4.4) (equal to one-third of the Male Total Average Weekly Earnings (MTAWE)).
- The cost of the children will be derived from the parents' combined incomes.
- The cost of the children will be divided between the parents in proportions equal to their share of the combined income.
- It recognises the costs of contact (2.4.5) as a contribution to the costs of the children. Where a parent has care of the child for between 14 and 34% of the nights of the year, 24% of the cost of the child will be taken to be met.
- Where a parent has care of the child for 35% of the nights of the year, 25% of the cost of the child is taken to be met. This rises to 50% of the cost of the child being met when care is shared equally.
- It treats the children of first and second families as equally as possible by using the actual cost of the children from the second family in determining the child support payable (rather than a flat increase to the self-support amount).
- The income definitions (2.4.4) used in the formula and to calculate FTB will be aligned. That is, the definition of 'adjusted taxable income' will be broadened to include certain tax-free pensions and benefits that already apply for FTB purposes.
Exclusion of additional income earned after separation
For the first 3 years after separation (2.5.2), parents will be able to apply to have additional income, such as their income from second jobs and overtime, excluded from child support calculations.
Changes to child support agreements
There are new provisions relating to child support agreements (2.7).
- From 1 July 2008, there are 2 types of child support agreements. These are:
- FTB Part A payable to the payee will be calculated using a 'notional assessment' (2.7.4) of what the assessment would have been had there not been a child support agreement in place.
- Notional assessments will apply to all child support agreements (other than lump sum provisions) where the application is received after 1 July 2008, and where child support is already payable and the annual rate is affected by the provisions of the agreement.
Lump sum orders
A person may apply to court for an order either that child support be provided otherwise than in the form of periodic payments (this type of lump sum payment was already in existence before 1 July 2008) or that child support be provided in the form of a lump sum payment to be credited against the liability (5.3.3) (this new type of lump sum payment order commences from 1 July 2008).
Suspension of liability when parents reconcile
Where parents reconcile the Registrar may suspend child support payments for up to 6 months (2.10.1). If the parents separate again within that 6 months the assessment may be reinstated without the parents having to make a new application for child support.
New change of assessment reason
Parents who have financial responsibility for a step-child (2.6.16) in a second family are able to apply to have the step-child considered when calculating child support for the parent's first family, if no one else can financially support the step-child.
- Parents who pay child support to 2 or more families will have to pay the minimum payment (2.4.12) to each family rather than dividing it between them.
- Parents who appear to be deliberately minimizing their income entitlements to avoid paying child support (i.e. where a liable parent has a low income but does not receive any income support payments) will generally have a fixed annual rate of child support (2.4.11) of $1060 per annum (subject to indexation) per child.
From 6 January 2009
Amendments to care provisions
- Changes in care arrangements (2.2.6) that are less than 1 night per fortnight (7.1%) can be reflected by the Registrar if the change is because the care has fallen above or below 35%, or if the change is because an agreement, parenting plan or court order has been made.
- Changes in care can be reflected by the Registrar from the date the change happened if the Registrar is notified within 28 days of that date (2.2.6).
- Interim care determinations made on or after 6 January 2009 do not need to be reviewed if there are special circumstances (2.2.6) that justify not doing so.
Amendments to change of assessment provisions
- Both receiving and paying parents are able to apply for a change to their assessment because their childcare costs (2.6.12) significantly affect their ability to support a child.
- Non-parent carers who have childcare (2.6.12) costs that are equal or greater than 25% of the costs of the child (as defined by the child support formula) will also be able to apply for their assessment to be changed in recognition of those costs.
- If parents reach an agreement about child support whilst the Registrar is considering a change of assessment application, the Registrar will accept the agreement (2.6.5) as long as the Registrar considers it is just and equitable to both parties to the agreement and the child. An agreement can be accepted even if it provides for child support at a rate less than the annual rate in place at the time.
Amendments to provisions for reducing the minimum annual rate to nil.
A parent may apply for their minimum assessment to be reduced to nil (2.5.4) for a whole child support period or they may nominate a portion of the period (not less than 2 months) to which the reduction may apply. For the application to be accepted, the parent must show that their annualised income for the period they nominated will be or was less than the minimum annual rate multiplied by the number of cases the parent has.
Amendments to recognise overseas liabilities
Parents who have administrative assessments for children under the laws of a reciprocating jurisdictions can have these children reflected in their Australian assessment for the purposes of calculating their Australian child support obligation, including the calculation of the multi-case allowances and cap and apportionment of the minimum annual rate.
From 1 July 2009
Amendments to recognise same sex couples
The parentage provisions (2.1.3) were amended to reflect the changes made to the FL Act to recognise that the members of a same sex couple may be the parents of a child, and if so, could be assessed as parents for child support.
Amendments to the definition of income used for child support purposes
- The income component of 'net rental property losses' was replaced by a new component 'the total net investment loss' which includes rental property losses and net financial investment losses, and
- a new income component 'reportable superannuation contribution amounts' is included when calculating a parent's adjusted taxable income (2.4.4).
From 1 July 2010
Amendments to care provisions
- Care determinations (2.2.5) for child support and FTB purposes can be shared where there is a child recognised in a child support assessment and a person receives FTB for the child. Where care determinations are shared for a child, parents and carers need to inform either the Registrar or the Secretary of any changes in care.
- A new percentage of care can be determined whenever the care of a child has changed. A care period (2.2.1) will generally be a period starting 12 months from the day on which an application for assessment is made or from the day on which the change in the actual care for a child changed (the date of event). However, the date of effect (2.2.5) of the care change will be applied differently for child support and FTB purposes.
- The types of care determinations (2.2.2) that the Registrar can make have changed. The Registrar will usually determine a percentage of care based on the actual care (2.2.5) that each parent or carer has of the child. A written agreement, parenting plan or court order can only be used to determine the percentage of care in limited circumstances where care is disputed (2.2.4).
Amendments to income estimate provisions
An income estimate (2.5.1) can be made for a year of income, or part of a year of income. A year of income is the financial year, that is 1 July to 30 June.
From July 2011
Amendments to income provisions
- Changes to the rules used to determine adjusted taxable income (ATI) (2.4.4) for child support periods starting on or after 1 July 2011 where a parent has not lodged a tax return for the last relevant year of income.
- A new default income rule uses a parent's previous taxable income ATI, multiplied by the ATI indexation factor (2.4.2), if that amount is greater than two-thirds of the MTAWE, when the parent has not lodged tax returns for the last relevant year of income or the previous year.
From 30 June 2012
Any automated decisions using a computer program are considered to have been made by the Registrar.
From 1 July 2012
The Registrar may decide in special circumstances that a parent or non-parent carer's percentage of care for a child should be immediately based on the care that is actually occurring, despite a person taking reasonable action to reinstate care in accordance with a written agreement, parenting plan or court order.
From 17 November 2012 (with retrospective effect)
An amendment to CSA Act section 107 altered the implementation of declarations made for children during periods when a liability existed for that child only and the payer continues to be liable for other children in the assessment. The amendment specifies that a payer needs to seek a parentage overpayment order to be repaid monies paid for the child during such a period.
From 1 January 2013
The annualised Male Total Average Weekly Earnings (2.4.2) amount used in child support assessments will be based on the June quarter and will apply to child support periods starting in 2013.
From 12 April 2013
The Federal Magistrates Court of Australia became known as the Federal Circuit Court of Australia. The following references in the CSA Act were changed:
- Federal Magistrates Court to 'Federal Circuit Court of Australia',
- Federal Magistrates Rules to 'Federal Circuit Court Rules',
- Federal Magistrate to 'Judge of the Federal Circuit Court of Australia'.
From 1 July 2013
The AWE (2.4.2) amount used in the ATI indexation factor will be based on the relevant December quarter and will apply to child support periods starting on or after 1 July 2013.
From 1 July 2016
The meaning of 'resident of Australia' was amended by the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016. These amendments provide that residents of Norfolk Island, Christmas Island and Cocos (Keeling) Islands are residents of Australia for child support purposes, and enables the residents of these external territories to apply for child support (1.6.1).
The Child Support (Assessment) Amendment (Territories) Regulation 2016 removed Norfolk Island, Christmas Island and Cocos (Keeling) Islands from regulation 4 of the Child Support (Assessment) Regulations 1989 (now regulation 6 of the CSA Regs). Regulation 6 excludes a child from being an eligible child if the child is cared for under a child welfare law of Western Australia or South Australia.