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 80CA, section 80D, section 80F, section 80G, section 136

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

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 sections 80CA and 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)), or
  • by a court order setting aside the child support agreement under section 136 (CSA Act section 80D(1)(c)) (see 4.3.2).

A transitional child support agreement can be terminated:

  • as for 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 the Reforms Act).

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 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 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: A and B have a limited child support agreement with a clause that states the annual rate of child support payable under the agreement by A to B will reduce in the event that A becomes unemployed. A'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 A becoming unemployed, the circumstance was contemplated by the agreement. The agreement cannot be terminated.

Example: M and F have a limited child support agreement in relation to child C. The care arrangements for C 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 C 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)).

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: M and F do not have a child support assessment in force and in April 2012, M and F 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 F to M for child A for 2 years, the Registrar made a child support assessment under section 93. In April 2014 when the child support agreement ends, all child support ceases. For child support to again be payable, either M or F 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: M and F 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 A and B and the Registrar makes an assessment under 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: M and F 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 M and F'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 M and F that states that M is to provide $50 a week to F for child C. F has full time care of C. On 1 January 2015 C moves into the full time care of M. The agreement continues in force with the requirement for M to pay F $50 a week (even though M now has full time care of C).

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

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

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

The agreement was not made more than 3 years ago, so neither M nor F 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 C, either M or F 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 M and F made on 15 December 2008 that states M is to provide $100 a week to F for child C. F has full time care of child C. On 1 July 2015 C moves into the full time care of M. The agreement continues to be in force with the requirement for M to pay F $100 a week (even though M now has full time care of C).

As the agreement was made more than 3 years ago, either M or F 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.

Revised policy

Previous policy provided that where a person receiving child support under a child support agreement ceased to be an eligible carer of a child and the person paying child support is, or becomes, the eligible carer of the child (i.e. there was no child support terminating event under section 12), the agreement was suspended and a formula assessment was put in place. Following a decision of the Federal Circuit Court in Cheyne & Masters & Anor (SSAT Appeal) [2014] FCCA 856, the policy has been revised to reflect the outcome of the decision. However, where an agreement was previously suspended and the assessment is based on a formula assessment, this formula assessment will remain in force until a new decision is made in relation to the assessment or upon request of either party.

Where a relevant new decision is made in relation to the assessment, the new decision will need to reflect the revised policy and reinstate the agreement going forward. The agreement can remain suspended and a formula assessment remain in place for the past period, however a party to the agreement is able to request that the agreement be reinstated from the date it was originally suspended. A relevant new decision is as follows:

  • a new decision for any reason about the entitlement or amount of an assessment for any period, or
  • a new review decision that would otherwise (i.e. disregarding the application of the revised policy) affirm, vary or set aside a previous decision (made at any time) for any reason about the entitlement or amount of an assessment for any period.

A relevant new decision does not include any decisions about the collection of the child support liability.

The date of effect for applying the revised policy to a relevant new decision for an individual case is as follows:

  • if a review of the past period is not requested, the date of effect would be the day the Registrar makes the new decision to apply the revised policy in the individual case (i.e. prospective effect only),
  • if a review of the past period is requested, the date of effect would be backdated to the day that gives full effect to applying the revised policy in the individual case (i.e. the day from which the agreement was suspended).

Terminating events & child support agreements

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

If a payee 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 section 95(2) provides that the relevant agreement provisions have effect as if they were an order made by consent by a court under Division 4 of Part 7, and section 142(1) provides that such an order ceases to be in force when a terminating event occurs.

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.
  • 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.
Last reviewed: 3 January 2017