2.6.1 When Can the Registrar Consider Changing an Assessment?

Context

The change of assessment in special circumstances provisions are in CSA Act Part 6A. This topic explains when the Registrar can consider changing an assessment.

Act references

CSA Act section 98B, section 98D, section 98K, section 98S, section 111, section 112

On this page

Special circumstances

The Registrar uses an administrative formula to make a child support assessment. The administrative formula is explained in 2.4. However, if parents or children have special circumstances, the administrative formula may not provide a fair level of child support. CSA Act Part 6A provides a means for the Registrar to administratively change a child support assessment in the special circumstances of a case.

The phrase 'special circumstances of the case' is not defined in the CSA Act. The Family Court has held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary' (Gyselman and Gyselman (1992) FLC 92-279).

The Registrar can only change an assessment if one or more of 10 listed reasons (see 2.6.2) is established in the special circumstances of the case (CSA Act sections 98C and 117(2)). If one of the reasons for a change of assessment is established, the Registrar must also consider whether changing the assessment would be 'just and equitable' (2.6.17) and 'otherwise proper' (2.6.18) (CSA Act section 98C(1)).

Change of assessment application from either parent or a non-parent carer

If a person thinks that they have special circumstances that make their child support assessment unfair, they can apply to the Registrar for a change to their assessment (CSA Act section 98B).

A change of assessment application must be made in writing (CSA Act section 98D). A person can make a change of assessment application by completing Application to change your assessment - special circumstances. The form lists the 10 reasons (see 2.6.2) that a person can use to make an application for a change of assessment. The form is available from service centres or humanservices.gov.au. The form can be lodged by mail, in person, by facsimile, or via online services as a signed and scanned copy. In order to make a valid change of assessment application, the person must complete and sign the form.

Period for which the assessment can be changed

The Registrar can prospectively change the assessment of child support and may also make a determination changing the assessment for up to 18 months prior to the date upon which the person lodges his or her change of assessment application with DHS (CSA Act section 98S(3B)(a)).

The earliest date from which the Registrar can change the assessment is from the day following the day the change of assessment application was made, 18 months earlier.

Example: A change of assessment application was lodged on 15 July 2010. The earliest day from which the Registrar can change the assessment is 16 January 2009.

If the person applying for a change of assessment wants the Registrar to consider changing the assessment for a period more than 18 months prior to his or her application, he or she can apply to a court under CSA Act section 111 for leave. A court may grant leave for the Registrar to make a change to the assessment for up to 7 years prior to the day on which the person applied to the court for leave (CSA Act section 112(7)). A court may alternatively grant leave and itself make an order to change the assessment for up to 7 years prior to the day on which the application to the court was made. It is not necessary for the applicant to have applied for the court to make the order itself, only that the court is satisfied that to do so would be in the interest of the parties (CSA Act section 112(3A), see 4.3.2 for an application for amendment of administrative assessment that is more than 18 months old).

Registrar-initiated change of assessment

Since 1 July 1999 the Registrar has been able to initiate a change to a child support assessment where the Registrar believes that the income, earning capacity, property and financial resources of either parent is not accurately reflected in the assessment (reason 8 (2.6.14)). This is called a 'Registrar-initiated change of assessment' (2.6.6). The Registrar cannot initiate a change to an assessment on the basis of any of the other reasons that a payer or payee can use to apply for a change of assessment.

The Registrar can initiate a prospective change to the assessment of child support and may also make a retrospective determination to change the assessment for up to 18 months before the date upon which the parties were notified of the proposed change (CSA Act section 98S(3B)(b)). The Registrar can apply to court for leave under CSA Act section 112 to make a retrospective determination that changes the assessment for up to 7 years before the day upon which the application was made to the court for leave (CSA Act section 111(3)).

Can the Registrar or a court change an assessment if the child support assessment has ended?

The Registrar can make a change of assessment decision for a child support period that has ended, however there must be a child support assessment in force in relation to a child on the day the application for a change of assessment is made (CSA Act section 98B(1)). Where the child support assessment has ended (e.g. due to a terminating event), an application cannot be made for the Registrar to make a change of assessment for a past period, even if a court were to grant leave (under CSA Act section 112(1)(a)) for the Registrar to make a change of assessment decision.

An application can be made to a court to make a change of assessment decision in relation to a case that has ended. If a parent has applied for (under CSA Act section 111(1)(b)) and a court has granted leave (under CSA Act section 112(1)(b)) to amend an administrative assessment for a day in a child support period that is more than 18 months but less than 7 years earlier than when the application is made under CSA Act section 111, the court may make an order under CSA Act section 118 to vary a child support assessment. An application can also be made under CSA Act section 116(1)(b) or (c) for a court to make an order under CSA Act section 118 to vary a child support assessment. Such an application is subject to a court granting leave under CSA Act section 112(1)(b) if it is for a day in a child support period that is more than 18 months earlier than when the application is made under CSA Act section 116.

Death of party during change of assessment proceedings

If one party dies while the change of assessment proceedings are underway, the application may continue as long as the Registrar is satisfied that the deceased party had a reasonable opportunity to provide relevant information, or his or her representative can provide it on his or her behalf.

Last reviewed: 21 September 2015