2.7.5 Changing or Terminating a Child Support Agreement

Context

Child support agreements are binding on parents. There are only a few specific ways to end an agreement.

A child support agreement will continue to be in force until the day specified in the agreement that it ends, unless terminated earlier, see below. The end date can be express or implied. If no end date is specified, and no terminating event occurs, then the provisions of the child support agreement will continue until the child/ren covered by the agreement turn 18. If a child is still attending secondary school after their 18th birthday, an agreement can be extended with the agreement of both parents (see 2.5.5).

Act references

CSA Act section 12, section 34B, section 80CA, section 80D, section 80F, section 80G, section 86A, section 93, section 136, section 142

Child Support Legislation Amendment (Reform of the Child Support Scheme, New Formula and Other Measures) Act 2006 Schedule 5 Item 75(6)

Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 Schedule 1 Item 74

On this page

Changing a child support agreement

Child support agreements cannot be varied. However, child support agreements may be terminated and replaced with another child support agreement and can make reference to provisions in a previous child support agreement (CSA Act section 80CA and section 80F).

Terminating a child support agreement

A binding child support agreement can be terminated:

  • by a subsequent binding child support agreement that includes a provision to the effect that the previous agreement is terminated (CSA Act section 80D(1)(a)),
  • by a binding child support agreement to the effect that the previous child support agreement is terminated, known as a termination agreement (CSA Act section 80D(1)(b)),
  • by a court order setting aside the child support agreement under section 136 (CSA Act section 80D(1)(c)) (see 4.3.2), or
  • if a parent entitled to receive child support ceases to be an eligible carer under section 80D(2A) (CSA Act section 80D(1)(d)).

A transitional child support agreement can be terminated:

  • by the same methods as other binding child support agreements, or
  • by an agreement in writing signed by both parties to the effect that the previous child support agreement is terminated (item 75(6) of Schedule 5 of the Child Support Legislation Amendment (Reform of the Child Support Scheme, New Formula and Other Measures) Act 2006).

A limited child support agreement can be terminated:

  • by a subsequent limited or binding child support agreement that contains a provision to the effect that the previous agreement is terminated (CSA Act section 80G(1)(a)),
  • by an agreement in writing to the effect that the previous child support agreement is terminated (CSA Act section 80G(1)(b)),
  • by a court order setting aside the child support agreement under section 136 (CSA Act section 80G(1)(c)) (See 4.3.2),
  • if a parent entitled to receive child support ceases to be an eligible carer under section 80G(1B) (CSA Act section 80G(1)(f)),
  • if the notional assessment made in relation to the child support agreement differs by more than 15% from the previous notional assessment in circumstances not contemplated by the agreement, by either party electing to terminate the agreement in writing within 60 days (90 days if the parent is a resident of a reciprocating jurisdiction (CSA Act section 80G(1A))) of receiving notice of the new notional assessment (CSA Act section 80G(1)(d)). The agreement will be terminated 28 days after the notice is received by the Registrar (CSA Act section 80G(2)(d)), or
  • by either party giving written notice of termination to the Registrar (CSA Act section 80G(1)(e)), if the child support agreement was made more than 3 years prior to the notice. The agreement will be terminated 28 days after the written notice is received by the Registrar (CSA Act section 80G(2)(d)).

Terminating an agreement when former carer continues to be entitled to child support

From 1 July 2018, where a carer entitled to be paid child support under a child support agreement ceases to be an eligible carer for the child, the agreement is terminated if:

  • a party (the former carer) to the agreement who is entitled to be paid child support for the child, disregarding offsetting provisions under CSA Act section 67A, under the agreement ceases to be an eligible carer of the child (CSA Act section 80D(2A)(a) and section 80G(1B)(a)), and
  • the period of 28 days after the former carer ceases to be an eligible carer of the child ends without the former carer again becoming an eligible carer of the child (CSA Act section 80D(2A)(b) and section 80G(1B)(b)), and
  • the agreement is not suspended under CSA Act section 86 on the day after the period ends as a result of that cessation (CSA Act section 80D(2A)(c) and section 80G(1B)(c)), and
  • a child support terminating event does not occur under CSA Act section 12(2AA) (where both parents are not eligible carers of the child and no non-parent carers are entitled to be paid child support in related to the child) (CSA Act section 80D(2A)(d) and section 80G(1B)(d)), and
  • the former carer continues to be entitled to be paid or provided child support for the child under the agreement despite ceasing to be an eligible carer (CSA Act section 80D(2A)(e) and section 80G(1B)(e)).

The agreement terminates on the day the former carer ceases to be an eligible carer of the child (CSA Act section 80D(3) and section 80G(2)).

Terminations under CSA Act section 80D(2A) and section 80G(1B) applies to a period of 28 days (or up to 26 weeks in some circumstances) that ends on or after 1 July 2018, no matter when the agreement was made. This applies to any 28 day period of time (or up to 26 weeks) where the former carer ceases to be an eligible carer, which may begin before 1 July 2018.

The agreement may continue in relation to other children to whom the agreement relates if the person does not cease to be an eligible carer of those children.

Where care changes occurred before 1 July 2018, the agreement will only be terminated after that date and does not alter the effect of the agreement on the administrative assessment of child support for any period before 1 July 2018.

If a child support agreement had resulted in an assessment under CSA Act section 34B(1), and the agreement is terminated because the parent entitled to be paid child support ceases to be an eligible carer (CSA Act section 80D(2A) or section 80G(1B)), the effect of the termination is that the assessment under CSA Act section 34B(1) no longer has effect. The liability for the child would, in relation to future child support periods, be assessed under child support formula provisions.

If a child support agreement had resulted in an assessment under CSA Act section 93(2), and the agreement is terminated because the parent entitled to be paid child support ceases to be an eligible carer (CSA Act section 80D(2A)), the effect of the termination is that the assessment under CSA Act section 93(2) no longer has effect.

To receive child support payments for the child, the parent who is an eligible carer would need to apply for an assessment under child support formula provisions since there is no assessment that existed before the child support agreement.

When the party who makes the CSA Act section 151(1A) election, applies for an administrative assessment before the liability to pay child support under the agreement ends, the agreement is revived by CSA Act section 142(1B) (see 2.10.2). When the agreement revives, and the former eligible carer has not regained care, the suspension period resumes and will end 28 days (or up to 26 weeks) from the original suspension commencement date. If the former eligible care does not regain care within 28 days (or longer if an extended suspension period is in place), the agreement will terminate on the day the former carer ceases to be an eligible carer of the child (CSA Act section 80D(3)(d) and section 80G(2)(e)).

Terminating a limited agreement in circumstances not contemplated by the agreement

If a new notional assessment differs by more than 15% from the previous notional assessment, a limited child support agreement can only be terminated where this change in the notional assessment arises 'in circumstances not contemplated' by the agreement. These circumstances need to be stipulated within the agreement itself (e.g. an unemployment clause). The intentions of the parties or matters which the parties may have contemplated when entering into the agreement are irrelevant unless those intentions and contemplations are specifically taken into account in the agreement.

Example 1: Lula and Sebastion have a limited child support agreement with a clause that states the annual rate of child support payable under the agreement by Lula to Sebastion will reduce in the event that Lula becomes unemployed. Lula's income reduces and the new notional assessment differs by more than 15% from the previous notional assessment. As the reduction of income was due to Lula becoming unemployed, the circumstance was contemplated by the agreement. The agreement cannot be terminated.

Example 2: Vahagn and Livia have a limited child support agreement in relation to child Arti. The care arrangements for Arti change and a new notional assessment is issued that differs by more than 15% from the previous notional assessment. The agreement does not state that the rate of child support payable under the agreement will change if the care arrangements for child Arti change. The circumstances are therefore not contemplated by the agreement and the agreement can be terminated.

Ending child support agreements

If a child support agreement is ended by a later child support agreement and an end date is not specified, the Registrar will end the earlier agreement from the date the later agreement is signed (CSA Act section 80D(3) and 80G(2)).

If an agreement initiated a child support assessment under section 93 (because child support was not already payable), and the agreement ends or terminates, child support will cease to be payable for a child covered by the agreement (CSA Act section 93(1)(h)). Child support is only payable until the earlier of the following days:

  • the day immediately before the day on which a child support terminating event happens in relation to the child, the carer entitled to child support, the liable parent or all 3 of them, or
  • before 1 July 2018, the day on which the agreement is terminated under CSA Act section 80D or section 80G, or
  • after 1 July 2018, the day immediately before the agreement is terminated under CSA Act section 80D or section 80G.

If an agreement resulted in a child support assessment under section 34B (because child support was already payable), and the agreement ends or terminates, child support will then be based on a formula assessment, except where the agreement includes a provision under which child support is to end from a specified day (CSA Act section 12(4)(a)(ii)).

Where there is a change of assessment decision (departure determination) or departure order in force when the child support agreement is accepted by the Registrar, the departure determination or order is ended and will not be reinstated when the agreement ends. This is because the agreement provisions have effect as if they are a departure by consent (CSA Act section 95).

If a departure determination varied a provisional notional assessment while the agreement was in force, this will have no effect when the agreement ends.

If an agreement includes a provision to end a child support liability from a specified day (CSA Act section 84(1)(g)) it does not prevent either party after that day from reapplying for an administrative assessment or for the acceptance of another child support agreement.

Example 1: Abraham and Nicole do not have a child support assessment in force and in April 2012, Abraham and Nicole apply to the Registrar to have their binding child support agreement accepted. When the Registrar accepted their agreement which set the periodic rate of child support payable by Nicole to Abraham for child Tashi for 2 years, the Registrar made a child support assessment under CSA Act section 93. In April 2014 when the child support agreement ends, all child support ceases. For child support to again be payable, either Abraham or Nicole can apply for an administrative assessment of child support (which will only commence from the date of application) or alternatively provide a new agreement for registration.

Example 2: Charon and Robynne have a formula based assessment of child support. In October 2013 the Registrar accepts their binding child support agreement which sets the annual rate of child support for each of their children Taryn and Tuvya and the Registrar makes an assessment under CSA Act section 34B. At the end of 10 May 2014, the agreement ends due to a provision in the agreement and child support is reassessed from 11 May 2014 based on the formula.

Example 3: Barrie and Ferdy have a child support assessment. The Registrar makes a change of assessment decision for the period 1 July 2010 to 30 June 2013. On 1 December 2010 the Registrar accepts Barrie and Ferdy's child support agreement which varies the rate of child support for the period 1 December 2010 to 30 November 2012. The child support assessment continues after the child support agreement ends on 30 November 2012, and the amount payable from 1 December 2012 is reassessed based on the formula, not the change of assessment decision.

Change in circumstances not contemplated by a child support agreement

Child support agreements remain in force until terminated (see above). Changes can be made to the assessment in line with the provisions of the agreement. However, where the agreement does not make provision for a change in circumstances, the agreement will continue to be enforced.

Example 1: On 1 December 2012 the Registrar accepts a binding child support agreement for Aron and Pema that states that Aron is to provide $50 a week to Pema for child Jorrit. Pema has full time care of Jorrit. On 1 January 2015 Jorrit moves into the full time care of Aron. The agreement continues in force with the requirement for Aron to pay Pema $50 a week (even though Aron now has full time care of Jorrit).

Example 2: On 1 December 2012 the Registrar accepts a binding child support agreement for Valdemar and Naomi that states that Valdemar is to provide $50 a week to Naomi for child Emanuela. Naomi has full time care of Emanuela. The agreement also states that upon care changing to Valdemar, Naomi will be required to pay Valdemar $20 per week. On 1 January 2015 Emanuela moves into the full time care of Valdemar. The agreement continues to be in force and the assessment is adjusted in line with the agreement that Naomi will pay Valdemar $20 a week.

Example 3: On 1 October 2014 the Registrar accepted a limited child support agreement made on 1 July 2014 for Jimi and Teresinha that states Jimi is to provide $50 a week to Teresinha for child Branka. Teresnha has full time care of Branka at the time the agreement is accepted. The agreement has no provisions for what would happen if Branka went into Jimi's full time care.

On 15 August 2015 Branka moves into the full time care of Jimi. The agreement continues to be in force with the requirement for Jimi to pay Teresinha $50 a week (even though Jimi now has full time care of Branka).

The agreement was not made more than 3 years ago, so neither Jimi nor Teresinha can give the Registrar written notice of the termination of the agreement. However, a party to the agreement may request a new notional assessment (NA). If the amount under the new NA varies by more than 15% compared to the previous NA, and as the agreement did not contemplate the change in circumstances related to the change in care for Branka, either Jimi or Teresinha can give the Registrar written notice of the termination of the agreement within 60 days of receiving notice of the new NA.

Example 4: On 1 January 2009 the Registrar accepted a limited child support agreement for Reed and Vasu made on 15 December 2008 that states Reed is to provide $100 a week to Vasu for child Tomas. Vasu has full time care of child Tomas. On 1 July 2015 Tomas moves into the full time care of Reed. The agreement continues to be in force with the requirement for Reed to pay Vasu $100 a week (even though Reed now has full time care of Tomas).

As the agreement was made more than 3 years ago, either Reed or Vasu can give the Registrar written notice of the termination of the agreement. This can be done at any time and does not require the agreement of the other party.

Terminating events & child support agreements

When a terminating event under CSA Act section 12 occurs, the child support assessment ends, including where the assessment was affected by a child support agreement.

If a parent or carer later reapplies for an assessment, and the application is accepted, the assessment will generally be made using the formula assessment provisions.

A child support agreement ceases to be in force when a terminating event occurs. This is because CSA Act section 95(2) provides that the relevant agreement provisions have effect as if they were an order made by consent by a court under CSA Act Division 4 of Part 7 and CSA Act section 95(3) provides that the relevant agreement provisions have effect as they were a statement made by a court under CSA Act section 125 in an order made under CSA Act section 124. CSA Act section 142(1) provides that such orders cease to be in force when a terminating event occurs.

However, if a parent or carer later applies for an administrative assessment after making an election under CSA Act section 151 (see 2.10.2) to end an assessment which was affected by a child support agreement, any new assessment must still be based on the child support agreement until the liability under the agreement would have otherwise ended. This is because CSA Act section 142(1B) provides that, if the liability is based on a child support agreement and a terminating event resulted from a section 151 election, the agreement in CSA Act section 142(1) that ceased to apply is taken to revive from the day the person makes the application for administrative assessment (CSA Act section 142(1C)).

A reference to a child support terminating event in a child support agreement made on or after 23 May 2018 is taken not to include a child support terminating event under CSA Act section 12(4)(a)(i)(see 2.10.2). If a child support agreement made before 23 May 2018 states the agreement will end if a terminating event occurs, depending on the wording of the agreement, the child support agreement will end and will not be revived under a new assessment.

A payee's ability to end a child support assessment based on a child support agreement, where they genuinely wish to end the assessment, is not affected.

If a child support agreement covers more than one child, and there is a terminating event for one of the children, the Registrar must amend the assessment to give effect to the terminating event.

  • If the child support agreement specifies the amount payable for each child, the Registrar will amend the assessment so that it reflects the agreed amount for the remaining children.
  • Before 1 July 2018, if the child support agreement simply nominates a single amount for all of the children, the Registrar cannot apportion the amount between the children. The assessment will continue to reflect the full amount payable under the agreement. However, the parties can make a new child support agreement to deal with their changed circumstances.
  • On or after 1 July 2018, the Registrar may apportion the amount between the remaining children if certain criteria met (CSA Act section 86A). See 2.7.1 for further information.

WA ex-nuptial cases

The information on this page may not apply to WA ex-nuptial children.

For application for WA ex-nuptial cases, see 1.4.2 for changes to the CSRC Act and 1.4.3 for changes to the CSA Act.

Last reviewed: 2 July 2018