2.6.1 When can the Registrar or a court consider changing an assessment?
The change of assessment in special circumstances provisions are in CSA Act Part 6A. This topic explains when the Registrar or a court can consider changing an assessment.
CSA Act section 98B, section 98D, section 98K, section 98S, section 111, section 112, section 116, section 117, section 118, section 136
On this page
- Special circumstances
- Change of assessment application from either parent or a non-parent carer
- Period for which the assessment can be changed
- Registrar-initiated change of assessment
- Can the Registrar or a court change an assessment if the child support assessment has ended?
- Death of party during change of assessment proceedings
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 to reflect 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 or a court can only change an assessment if 1 or more of 10 listed reasons (see 2.6.2) is established in the special circumstances of the case (sections 98C and 117(2)). If 1 of the reasons for a change of assessment is established, the Registrar or a court must also consider whether changing the assessment would be 'just and equitable' (2.6.17) and 'otherwise proper' (2.6.18) (sections 98C(1) and 117(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 (section 98B).
A change of assessment application must be made in writing (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 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 child support assessment and may also make a determination changing the assessment for up to 18 months prior to the date upon which the person lodges their change of assessment application with Services Australia (section 98S(3B)(a)).
The earliest date from which the Registrar can change the assessment is 18 months prior to the day after the day the change of assessment application was made.
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 18 months or more prior to their application, they can apply to a court under 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 (section 112(7)). A court may alternatively grant leave and make an order itself 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 (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, property and financial resources or earning capacity 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 (section 98S(3B)(b)). The Registrar can apply to court for leave to be granted under 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 (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 the applicant's child support assessment for that child must still be in force on the day the application for a change of assessment is made (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 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 under section 118 in relation to a case that has ended:
- an application can be made under section 116 to a court for an order under section 118 to vary the child support assessment for a period that is less than 18 months earlier than when the application is made, by an applicant who is
- a parent or carer who is a party to a pending application in a court having jurisdiction under the CSA Act, or
- a paying parent who is assessed on the minimum annual rate (2.4.12).
- if a parent or carer wishes to amend an 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, they must apply (under section 111) to a court for leave (under section 112). If leave is granted under section 112, they are taken to have applied under section 116 and the court may make an order under section 118 to vary the child support assessment for that period.
- the court can make an order under section 118 where a parent or carer's child support agreement has been set aside by the court under section 136, and there was an administrative assessment already in place at the date from which the agreement was set aside.
Death of party during change of assessment proceedings
If 1 party dies while the change of assessment proceedings are underway, the application may continue if the Registrar is satisfied that the deceased party had a reasonable opportunity to provide relevant information, or their representative can provide it on their behalf.