1.4.3 Application of the CSA Act to WA Ex-nuptial Cases

Context

The CSA Act and its amendments apply to WA ex-nuptial cases to the extent that it has been adopted by the WA Parliament.

The WA Parliament has adopted the CSA Act and certain amendments made to this Act. The arrangement by which the WA Parliament has adopted these laws means that, from time to time, the Registrar must treat WA ex-nuptial cases differently to other cases.

Commencement of the CSA Act

The CSA Act came into operation on 1 October 1989. It did not apply to WA ex-nuptial children immediately. Carers of ex-nuptial children resident in WA could still apply to the WA Family Court for orders for child maintenance. The Registrar could register these court orders under the CSRC Act.

WA adoption of CSA Act from 19 January 1991

WA Parliament adopted the CSA Act from 19 January 1991. From that date the following arrangements applied to WA ex-nuptial cases:

  • Ex-nuptial children living in WA are eligible children for the purposes of the CSA Act and the people who care for them are able to apply for an administrative assessment of child support.
  • Carers of WA ex-nuptial children can no longer apply to the court for variations to existing court orders and registered agreements. A carer in a WA ex-nuptial case could have a court order for maintenance and be entitled to apply for an administrative assessment of child support payable by the same payer for the same child. In these cases, the Registrar offsets the overlapping court orders (or agreements) and administrative assessments.

WA adoption of CSA Act amendments from 9 December 1994

The WA Parliament adopted amendments made to the CSA Act since the last adoption from 9 December 1994. From that date the following arrangements applied to WA ex-nuptial cases:

  • Parents in a WA ex-nuptial case can apply to the Registrar for a change to their assessment in the special circumstances of the case for any child support year commencing 1 July 1992 onwards rather than applying to the court.
  • Payees in WA ex-nuptial cases who receive more than minimum family payment can no longer elect to end their child support assessments.
  • The Registrar no longer offsets overlapping liabilities for WA ex-nuptial cases. Instead, a court order for child support ceases to have effect when child support becomes payable under an administrative assessment for the child.
  • A person is considered an eligible carer of a WA ex-nuptial child if they cared for the child for at least 30% of the nights in the child support year.
  • If the payer or payee's taxable income for the last relevant year is not available when the Registrar is making a new child support assessment for a WA ex-nuptial case, the Registrar can choose an appropriate default income for that person. Before 9 December 1994, the Registrar was required to use a default income figure equivalent to 2.5 times average weekly earnings.
  • A payer or payee in a WA ex-nuptial case can no longer revoke their estimate of taxable income unless they make a new estimate election. Before 9 December 1994 a person could revoke their estimate and have their case return to the previous assessment based upon their income 2 years prior. Estimates could also be replaced by new estimates every 2 months rather than 3 months.
  • Courts are required to give reasons for making orders by consent for a change of assessment in special circumstances, or the provision of 'in kind' child support in cases where the payee in a WA ex-nuptial case received an income tested pension, benefit or allowance.

WA adoption of CSA Act amendments from 30 June 2000

The WA Parliament adopted further amendments to the CSA Act from 30 June 2000. From that date the following arrangements applied to WA ex-nuptial cases:

  • The start date of the liability arising from acceptance of an application for an assessment in a WA ex-nuptial case is the date the application was lodged.
  • Payees in WA ex-nuptial cases can apply for the administrative assessment of child support for a child in secondary education to continue to the end of the school year in which the child turns 18.
  • Payers and payees in WA ex-nuptial cases can now provide information and make some applications over the telephone, which the Registrar previously required in writing.
  • The Registrar can now be satisfied that a person is a parent of a WA ex-nuptial child if:
    • the child is born within 44 weeks of a marriage being annulled, 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.
  • Payers and payees in WA ex-nuptial cases can object to decisions of the Registrar under the CSA Act.
  • Payers and payees in WA ex-nuptial cases may only apply to a court for a departure from administrative assessment (section 116), or appeal against an incorrect assessment (section 110), or appeal against the acceptance or non-acceptance of a child support agreement (section 132) providing they have personally objected to the decision and it has been disallowed or partly allowed.
  • The Registrar can make a decision to either increase or decrease the amount of child support payable when making a change of assessment decision on an application by a payer or payee in a WA ex-nuptial case.
  • The Registrar can initiate a change of assessment in special circumstances for a WA ex-nuptial case.
  • A liable parent in a WA ex-nuptial case can apply for an administrative assessment.
  • The Registrar will include relevant dependent children in a child support assessment for a WA ex-nuptial case 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.
  • Changes to levels of care of a child in a WA ex-nuptial case will have effect from the date the Registrar is notified of the change.
  • Payees in WA ex-nuptial cases who receive more than the base rate of FTB Part A can elect to end their assessment if the Secretary approves the election. The Secretary must be satisfied that the payee is taking reasonable action to obtain maintenance for the child.
  • The Registrar must refer an agreement between the payer and payee in a WA ex-nuptial case, if the payee receives more than the base rate of FTB Part A, to the Secretary. The Registrar can only accept these agreements if the Secretary decides that the agreement passes the 'reasonable action to obtain maintenance' test.

WA adoption of CSA Act amendments from 1 January 2001

The following amendments applied to WA ex-nuptial cases from 1 January 2001:

  • Child support for WA ex-nuptial cases is assessed in child support periods rather than child support years. A child support period may last up to 15 months.
  • The assessments are based on taxable income for the most recent taxation year rather than taxable income for the financial year before last.
  • The payee's disregarded income is based on the 'all employees average weekly earnings' figure rather than the usually higher average weekly earnings figure and extra amounts according to the age of the children were no longer added to it.
  • The payer's exempt income amount was increased to 110% of the unpartnered rate of social security pension relevant to the one payable for the child support period.
  • 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 relevant to that payable for the child support period.
  • The minimum child support rate payable is $260, not nil, and will not be reduced below $260 per annum unless the person's total income in the first 12 months of a child support period is less than $260.
  • A payee can apply for a change of assessment if the child care costs they incur are high and cost more than 5% of their child support income amount.
  • The Registrar cannot make a decision on a change of assessment application that the annual rate of child support in a case is to be reduced to nil.
  • In calculating the amount payable in an assessment the payer's adjusted income 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 and reportable fringe benefits) is added back to the liable parent's taxable income amounts.
  • 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.
  • The Registrar may refuse, review or amend a payer or payee's estimate of income.

New child support assessments commencing 1 January 2001

The Registrar made a new child support assessment for every WA ex-nuptial case, which applied to a child support period starting on 1 January 2001.

The Registrar based the new child support assessment upon the parents' taxable income for 1999-2000 if the ATO had issued an assessment of taxable income for that year for either parent. If neither parent's 1999-2000 taxable income was available, the Registrar based the new assessment on the 1998-1999 taxable income for each parent inflated by the relevant child support inflation factor.

WA adoption of CSA Act amendments from 9 December 2002

The Child Support (Adoption of Laws) Amendment Act 2002 (WA) commenced on 9 December 2002. It adopted amendments to the CSA Act contained in several acts including the Child Support Legislation Amendment Act 2001.

The following provisions of the CSA Act apply to WA ex-nuptial cases from 9 December 2002:

  • Reason 10 for change of assessment, earning additional income for the benefit of resident children. This change of assessment reason no longer applies for any child support case from 1 July 2008.
  • The exclusion of certain types of income (2.5.4) specified by regulation (amenity allowances or gratuities paid to prisoners; disability support pensions paid under social security law; or a pension paid to a veteran who is totally and permanently incapacitated under Veterans' Affairs law) when considering an application for the minimum child support liability of $260 per annum to be reduced to nil.
  • The repeal of the definition of 'eligible carer' in section 5 and its replacement by section 7B. This means that in WA ex-nuptial cases a non-parent carer will not be considered an eligible carer (2.1.1) if a parent or guardian of the child does not consent to that person providing care for the child.
  • Either parent in WA ex-nuptial cases may now apply to a court for an order for departure from administrative assessment (4.3.2) (section 116), or appeal against an incorrect assessment (section 110), or appeal against the acceptance or non-acceptance of a child support agreement (section 132) providing at least one of the parents has objected to the Registrar's decision and the Registrar has disallowed the objection or allowed it in whole or in part.

WA adoption of CSA Act amendments from 1 August 2006

The Family Legislation Amendment Act 2006 (WA) included provisions to adopt amendments to the CSA Act.

The following provisions apply to WA ex-nuptial cases from 1 August 2006:

  • The reduction of the maximum income amount used in a child support assessment from 2.5 times average weekly earnings (AWE) to 2.5 times all employees average weekly total earnings (EAWE).
  • The increase in the minimum annual rate of child support from $260 to $320 (adjusted annually in accordance with the CPI).
  • Changes limiting the circumstances in which an assessment can be increased on the basis of a parent's earning capacity.

WA adoption of CSA Act amendments from 1 November 2007, 1 January 2008 & 1 July 2008

The Child Support (Adoption of Laws) Amendment Act 2007 (WA) commenced on 31 October 2007. It adopted amendments to the CSA Act contained in the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006, the Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006, the Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Act 2006, the Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (2006 Budget and Other Measures) Act 2006, and the Families, Community Services and Indigenous Affairs and Veterans' Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007.

WA adoption of CSA Act amendments from 3 March 2011

The Child Support (Adoption of Laws) Amendment Act 2011 (WA) commenced on 3 March 2011. It adopted amendments to the CSA Act contained in several Acts including the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008; the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008; the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008; the Tax Laws Amendment (2009 Measures No. 1) Act 2009; and the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010.

WA adoption of CSA Act amendments from 22 November 2012

The Child Support (Adoption of Laws) Amendment Act 2012 (WA) commenced on 22 November 2012. It adopted amendments to the CSA Act contained in several Acts including the Statute Law Revision Act 2011; the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further Election Commitments and Other Measures) Act 2011; the Human Services Legislation Amendment Act 2011; the Acts Interpretation Amendment Act 2011; the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012; and the Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012.

WA adoption of CSA Act amendments from 4 December 2014

The Child Support (Adoption of Laws) Amendment Act 2014 (WA) commenced on 4 December 2014. It adopted amendments to the CSA Act contained in several Acts including the Social Security and Other Legislation Amendment (Further 2012 Budget and Other Measures) Act 2012 Schedule 4; the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012; the Federal Circuit Court of Australia (Consequential Amendments) Act 2013; the Statute Law Revision Act 2013; and the Social Services and Other Legislation Amendment Act 2014.

WA adoption of CSA Act amendments from 28 November 2015

The amendment of the Child Support (Adoption of Laws) Act 1990 (WA) by the Child Support (Adoption of Laws) Amendment Act 2015 (WA) commenced on 28 November 2015. From that day, the amended Child Support (Adoption of Laws) Act 1990 (WA) adopted the amended CSA Act as it existed on 1 July 2015, which included amendments to the CSA Act made by the Treasury Legislation Amendment (Repeal Day) Act 2015 and the Tribunals Amalgamation Act 2015.

WA adoption of CSA Act amendments from 1 July 2017

The amendment of the Child Support (Adoption of Laws) Act 1990 (WA) by the Child Support (Adoption of Laws) Amendment Act 2017 (WA) commenced on 1 July 2017. From that day, the amended Child Support (Adoption of Laws) Act 1990 (WA) adopted the amended CSA Act as it existed on 1 July 2017, which included amendments to the Crimes Legislation Amendment (Penalty Unit) Act 2015; the Norfolk Island Legislation Amendment Act 2015; the Territories Legislation Amendment Act 2016 and the Crimes Amendment (Penalty Unit) Act 2017.

CSA Act provisions which do not apply to WA ex-nuptial cases

On 23 May 2018, the CSA Act was amended by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 to:

  • extend the interim period that applies for recently-established court-ordered care arrangements and provide incentives for the person with increased care to take reasonable action to participate in family dispute resolution where a care dispute relates to an older court order, a parenting plan or a written agreement,
  • allow the Registrar to take into account an amended tax assessment in an administrative assessment of child support if it results in a higher taxable income or, where it results in a lower taxable income, if certain conditions are met based on the reason for the amended tax assessment and the timeliness of action taken to obtain an amended tax assessment.

As these amendments occurred after the WA parliament adopted the CSA Act as it existed on 1 July 2017, these amendments will not apply to WA ex-nuptial children.

On 1 July 2018, the CSA Act was amended by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 to:

  • allow for courts to set aside child support agreements made before 1 July 2008, as well as allowing all child support agreements to be set aside without having to go to court if certain circumstances change,
  • make consequential amendments related to overpayments (see 1.2.1),
  • make changes to care date of effect,
  • make changes to income date of effect,
  • make changes to section 151 elections, and
  • make changes to terminating events.

As these amendments occurred after the WA parliament adopted the CSA Act as it existed on 1 July 2017 these provisions will not apply to WA ex-nuptial children.

On 1 July 2018, the CSA Act was amended by the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Act 2017. These amendments provide that for child support purposes, First Home Super Saver Scheme (FHSS) released amounts will be disregarded from a parent's adjusted taxable income for the last relevant year of income in relation to the child support period (section 43(1)(a)); and in relation to the income component amounts as estimated by a parent for the year (section 60(2)(a)).

As this amendment occurred after the WA Parliament adopted the CSA Act as it existed on 1 July 2017, the 'Adjusted Taxable Income' definition in section 43(1)(a) of the CSA Act and the 'Income Component Amounts as Estimated by a Parent' definition in section 60(2)(a) of the CSA Act that are to apply in WA ex-nuptial cases will not disregard any FHSS released amounts for the last relevant year of income in relation to the child support period.

Last reviewed: 13 August 2018