2.1.1 Applications for Assessment

Context

A parent, or non-parent carer who is an eligible carer, can apply to the Registrar for an administrative assessment of child support for a child.

Act references

CSA Act section 5, section 7B, section 25, section 25A, section 26, section 26A, section 27, section 28, section 29A, section 29B, section 30, section 150A

CSA Regs regulation 4, regulation 5, regulation 12

FL Act section 4

FL Regs regulation 12B

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Applications from parents

A parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis (CSA Act section 25(b)). Parents can apply for an administrative assessment of child support for a child regardless of the amount of care they provide for their child.

When a parent makes an application for child support, that application means that both they and the other parent will be assessed in respect of the costs of the children (CSA Act section 25(a)).

As both parents are assessed in respect of the costs of the children, the roles of payer and payee and the amount of child support payable will depend on the incomes of both parents and the care they each provide for the children (see 2.4). If the income and/or care percentage changes, the roles may reverse and the child support assessment will continue without the need for a new application for child support.

If either parent is not a resident of Australia on the day of the application then there are additional considerations, see 'Application for assessment where one parent is not a resident of Australia' below.

Applications from non-parent carers

A non-parent carer can apply for an administrative assessment of child support for a child (CSA Act section 25A) if they:

AND

  • if they are caring for the child under a child welfare law, they are a relative of the child (CSA Act section 26A, see additional conditions below), and
  • apply against both parents, or
  • apply against one parent only when:
    • the other parent is not a resident of Australia or a reciprocating jurisdiction (see 1.5.1), or
    • the Registrar is satisfied that there are special circumstances, or
    • the other parent is deceased.

If either parent is not a resident of Australia on the day of the application then there are additional considerations. See 'Application for assessment where one parent is not a resident of Australia' below.

Where both parents are assessed in respect of the costs of the child, there is a single administrative assessment based on the income of both parents and any care that they may have of the child (see 2.4.8). However, each parent may have a separate liability to the non-parent carer as a result of this assessment, or one parent may have a liability to both the non-parent carer and the other parent.

Where parents have more than one child

Where parents have more than one child from their relationship, they may apply for an administrative assessment for some or all of the children. An application for more than one child is treated as if it were separate applications for each child (CSA Act section 28).

If parents choose not to apply for an assessment for a child, then that child will not be included when assessing the costs of children for the other children. Either parent may apply for an assessment for the child at any time, and an assessment will start from that date, if the relevant requirements are met.

Where there is no assessment for a child, the child may be a relevant dependent child if other criteria are met.

See 2.4 for more information about assessments and the costs of the children.

Eligible carer

An eligible carer is a person who has at least shared care of the child (CSA Act section 7B). A person has shared care of a child if they have a care percentage of at least 35% for that child. See 2.2.1 for information on how care percentages are determined and used in child support assessments.

Example: M has 2 children A and B. A lives with M all the time. B stays with M 2 nights a week. M is an eligible carer of A, as M has a care percentage of 100% for A. M is not an eligible carer of B because M has less than shared care, as M has a care percentage of 28% (2 nights × 52 weeks ÷ 365 = 28).

Eligible non-parent carer

A non-parent carer can apply for an assessment of child support payable by the parents of the child if they have at least shared care of the child. However, despite this, a non-parent carer providing that care is not an eligible carer if:

  • they are not a legal guardian of a child, and
  • the child's parent or legal guardian has said that they do not consent to the person caring for the child and it is not unreasonable for the parent or legal guardian to care for the child (CSA Act section 7B(2)).

It is unreasonable for a parent or guardian to care for the child if the Registrar is satisfied that:

  • there has been extreme family breakdown, or
  • there is a serious risk to the child's physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned (CSA Act section 7B(3)).

If a parent or legal guardian advises the Registrar that they do not consent to the applicant providing care for the child, DHS will investigate to establish whether the applicant satisfies the requirements for an eligible carer.

The terms of the legislation imply that if the parent does not agree to the care arrangements they must be prepared to provide care for the child. Some reasonable indication of an alternative living arrangement for the child is required.

Extreme family breakdown

The Registrar will be satisfied that there has been an extreme family breakdown if:

  • the child has never lived with the parent, or
  • there has been a substantial period since the parent has provided care for the child, or
  • other circumstances indicate extreme family breakdown.

However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.

The Registrar may seek evidence of extreme family breakdown.

Serious risk to child's physical or mental wellbeing

When determining whether there is a serious risk to the child's mental or physical wellbeing as a result of violence or sexual abuse in the home of the parent or legal guardian, the individual circumstances of each case, including any evidence provided, will be considered. Examples of evidence that may assist to substantiate a claim of serious risk of violence/abuse to the child include, but is not limited to, police reports/statements; apprehended violence orders; domestic violence orders; medical reports; or applications for a restraining order.

Effect of a court order about the child's care

If a court has ordered that the child reside with the non-parent carer, DHS will generally not look beyond the order. If a court order says that the child will reside with one of their parents and that parent tells the Registrar they do not consent to the child living with the non-parent carer, the Registrar will presume that the non-parent carer is not an eligible carer unless they can provide evidence that there has been extreme family breakdown or that there is a serious risk to the child's physical or mental wellbeing as described above.

Living together

A parent or non-parent carer may not apply for a child support assessment if they are living as the partner of the other parent, or a parent, of the child on a genuine domestic basis.

The factors to be considered (SS Guide 2.2.5.10) in establishing whether people are living together as partners on a genuine domestic basis are:

  • financial aspects of the relationship,
  • nature of the household,
  • social aspects of the relationship,
  • presence or absence of a sexual relationship, and
  • nature of the commitment.

In addition, a person cannot live with another person as their partner on a 'genuine domestic basis' if they are aged under 16 years. This is because a person is living with another person as their partner on a genuine domestic basis if the relationship has the characteristics of marriage (FO v HAF [2006] QCA 555; Re Kennison and Secretary, Department of Social Security (1985) 8 ALD 560). To have the characteristics of marriage, the persons must be at least 16 years old, which refers to a person's capacity to marry pursuant to the Marriage Act 1961 (Cth).

Lastly, if parents, or a parent and non-parent carer, are legally separated but are still residing in the home they shared, they are not considered to be living together as partners on a genuine domestic basis. More than a physical separation within the home is required. It involves one or both parties forming the intention to end the relationship and acting upon that intention (including communication of the intention to the other party).

Joint carers

If 2 or more people care for the child together in a residence that they share (i.e. jointly), only one of the joint carers can apply. If one of the joint carers is a parent of a child, they must be the one who applies for a child support assessment (CSA Act section 26).

Example: A, a child of M and F, is in the joint care of M and Z. M can apply for a child support assessment for A. Z cannot apply for a child support assessment.

Child welfare law

A child welfare law for child support purposes is the same as child welfare law for family law purposes (CSA Act section 7, FL Act section 4(1), FL Regs regulation 12B). A child welfare law includes a child welfare law that applies as a law of Cocos (Keeling) Island or Christmas Island.

A non-parent carer who is caring for a child under a child welfare law may apply for child support only if they are the child's relative (CSA Act section 26A). A non-parent carer is a relative of a child (FL Act section 4(1)) if they are:

  • a step-parent of the child. A step-parent means a person who is not a parent of the child, and is or has been, married to, or a de facto partner of, a parent of the child and treated the child as a member of the family formed with the parent,
  • a brother, sister, half-brother, half-sister, step-brother or step-sister of the child,
  • a grandparent of the child,
  • an uncle or aunt of the child,
  • a nephew or niece of the child, or
  • a cousin of the child.

However, a person who is caring for a child under a child welfare law of Western Australia or South Australia cannot apply for child support because the child is not an eligible child (CSA Act section 22, CSA Regs regulation 4).

A child welfare law of Western Australia does not include a child welfare law that applies as a law of Cocos (Keeling) Island or Christmas Island. A person who is caring for a child in Cocos (Keeling) Island or Christmas Island under a child welfare law may have care of an 'eligible child', but the non-parent carer may apply for child support only if the non-parent carer is a relative of the child.

Refer to 2.1.2 for information about eligible children.

Example: G has care of a grandchild, A, under a child welfare law applying in Victoria. G can apply for both parents to be assessed for the costs of the child.

Example: G is the step-grandparent of A and has care of A under a child welfare law applying in NSW. G cannot apply for both parents to be assessed for the costs of the child because G is not a relative of A.

Special circumstances

A non-parent carer may make an application that only one parent be assessed for the costs of the child because of the special circumstances of the case. What the Registrar considers to be special circumstances will depend on the particular circumstances of the non-parent carer's case. It is expected that both parents will be assessed for child support whenever possible. The applicant must show that the particular circumstances regarding the child are sufficiently special that only one parent should be assessed. Special circumstances may include:

  • fear of violence,
  • harmful or disruptive effect,
  • the identity of the parent is unknown to both the Registrar and the non-parent carer,
  • no evidence for the Registrar to be satisfied that a person is a parent,
  • where a child has only one legal parent as a result of adoption or the provisions relating to artificial conception procedures and surrogacy under sections 60H and 60HB of the FL Act (see 2.1.3 for more information),
  • cultural considerations,
  • non-parent carer's case commenced before 1 July 2008,
  • non-parent carer and one parent are overseas and non-parent carer wishes to apply only against the parent in Australia, and
  • other special circumstances.

DHS may seek evidence of the special circumstances.

Application for assessment where one parent is not a resident of Australia

Where a payee resides in Australia, either party can apply for an administrative assessment if the payer is resident in a reciprocating jurisdiction (1.5.1) (other than an excluded jurisdiction listed in regulation 5 of the CSA Regs) on the day the application is made (CSA Act sections 29A and 30A). If the payer resides in a non-reciprocating jurisdiction or an excluded jurisdiction either party can apply for a court order for child maintenance (3.6) under the FL Act.

Where a payee resides outside Australia, either parent can apply for an administrative assessment if the payer resides in Australia and either:

  • the payee is a resident of a reciprocating jurisdiction (CSA Act section 24(2)), or
  • the child in relation to whom the application is made is present in Australia on the day the application is made, and/or the child is an Australian citizen or ordinarily resident in Australia on the day the application is made (CSA Act section 24(1)(b)).

Making an application from overseas

A payee who is resident in a reciprocating jurisdiction (1.5.1) cannot make an application directly to the Registrar (CSA Act section 29B). If the payee resides in a reciprocating jurisdiction an application from the payee must either be:

  • made by the payee and given to the overseas authority in the reciprocating jurisdiction to pass on to the Registrar, or
  • made by the overseas authority in the reciprocating jurisdiction on behalf of the payee.

A payer who resides in a reciprocating jurisdiction can make an application directly to the Registrar, or give the application to the overseas authority in the reciprocating jurisdiction to pass on to the Registrar (CSA Act section 29B).

A parent or non-parent carer who lives in a non-reciprocating jurisdiction can make an application directly to the Registrar.

How to apply for an assessment

The Registrar can specify the way in which an application for a child support assessment must be made (CSA Act sections 27 and 150A). A person can make an application:

  • by telephoning DHS, or
  • by completing and lodging forms on DHS's website, or
  • in writing, by completing forms and lodging by email, mail, or fax, or
  • a payee residing in a reciprocating jurisdiction must apply via the Central Authority in the jurisdiction where the payee resides.
Last reviewed: 20 September 2016