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2.6.4 Kinds of change of assessment decisions

Context

The CSA Act lists the types of decisions the Registrar can make when changing an assessment.

Act references

CSA Act section 5, section 60, section 74, section 75, section 98C, section 98S, section 112, section 117, section 119, section 151B, section 151C, section 151D

On this page

The types of decisions that can be made

Where satisfied that a reason exists and that it would be just and equitable and otherwise proper to change an assessment, the Registrar can make a decision to change the assessment. The Registrar can:

  • vary the annual rate of child support (2.4.1) (section 98S(1)(a)),
  • vary the cost percentage for a child (2.4.5) (section 98S(1)(b)),
  • vary the parent's child support income (2.4.4) (section 98S(1)(c)),
  • vary the parents' combined child support income (2.4.7) (section 98S(1)(d)),
  • direct that the 'cap' on costs of children (2.4.6) in the costs of children table does not apply (section 98S(1)(e)(i) and (ii)),
  • vary a parent's child support percentage (2.4.5) (section 98S(1)(f),
  • vary a parent's ATI (2.4.4) (section 98S(1)(g),
  • vary a parent's relevant dependent child amount (2.4.6) or multi-case allowance (2.4.4) (section 98S(1)(h)),
  • vary a parent's self-support amount (2.4.4) (section 98S(1)(i)),
  • vary the costs of the children (2.4.6) (section 98S(1)(j)).

If satisfied that a change should be made, the Registrar must make a decision that changes the assessment to better account for the special circumstances of the case. The Registrar can then take into account any relevant factor to decide the appropriate level of child support (section 117(9)).

There are some types of change of assessment decisions that the Registrar cannot make. This includes a decision to vary an assessment to an amount lower than the minimum annual rate of child support (2.4.12) for a particular child support period unless the payer has at least regular care of at least one of the children in that child support case (2.2.1) (section 98SA). Refer to 2.6.3 for further information.

Contrary decisions

The Registrar's decision is not limited to reasons claimed in the application and may be different to the change requested (section 98S(2)). The Registrar can make a decision that has the opposite effect to the change requested. This is referred to as a contrary decision.

The legislation does not define the circumstances in which the Registrar would consider making a contrary decision. However, the Registrar can only do so when satisfied that at least one of the 10 change of assessment reasons exist, and where a change would be just and equitable (2.6.17) and otherwise proper (2.6.18).

If the Registrar believes that a contrary decision should be made, the applicant and respondent will be given an opportunity to comment upon the information that may lead to a contrary decision.

Example: Anna applies for an increase to the child support assessment payable by Karl, because of the costs associated with the special needs of the child Holly. The Registrar finds that Anna has some extra costs because of Holly's special needs; however, the Registrar also finds that Karl's income has recently reduced and the assessment is now unfair because of Karl's income. After discussing the circumstances with both parties, the Registrar decides to increase the assessed costs of the child, but reduce Karl's ATI. This has the effect of reducing the child support assessment.

Example: Oscar is retrenched from a long-term position. After several months, Oscar has some part-time work and also receives an income support payment. Oscar lodges an estimate of income for the remainder of the financial year, which is an annualised amount of $15,000. The Registrar reduces Oscar's assessment from the date of Oscar's estimate. Oscar owes $2,000 in arrears of child support. Oscar applies for a reduction to the child support assessment for the period between the date of retrenchment and the date the estimate took effect.

In addition to Oscar's part time income of $100 per week, Oscar has $85,000 invested in a term deposit, and has recently paid off the mortgage on the home which was purchased after separation. Henrique has sole care of their 3 children Esther, July and Fergus. Henrique is unemployed and lives in public housing. The Registrar finds that although Oscar's income has reduced, Oscar has significant financial resources that are not included in Oscar's ATI, and that Oscar's ATI does not therefore accurately represent Oscar's capacity to meet the costs of Esther, July and Fergus. After discussing the circumstances with both parties, the Registrar decides not to reduce the past assessment (and therefore Oscar's arrears), and instead increases the child support assessment for the next 12 months.

How long should a decision apply?

The Registrar cannot make a change of assessment decision that affects the child support assessment for a day that is more than 18 months before the date upon which a parent or non-parent carer lodged their change of assessment application (section 98S(3B)(a)). In the case of a Registrar-initiated change of assessment, the Registrar cannot make a change of assessment decision that affects the child support assessment for a day that is more than 18 months before the date the Registrar notified the parties in writing of the intention to change the assessment (section 98S(3B)(b)).

However, if a court has granted leave under section 112 (4.3.2), the Registrar can make a retrospective change to the assessment for the period specified in the section 112 order (sections 98S(3C) and 112(6)). The Registrar is not obliged to make a change to the assessment for the period the court has granted leave (section 112(8)). The court cannot specify a period that includes a day that is more than 7 years earlier than the date of the application to court for leave to make a retrospective change (section 112(7)).

The reasons for a change of assessment may help to determine the duration of a decision.

The Registrar will make a decision that produces an appropriate change to the assessment and, if possible, allow for future changes in circumstances to be assessed without the need for a further application to change the assessment. If it is likely that future events may affect the assessment unpredictably, it may be best to make a decision for a shorter period.

To provide as much certainty and consistency for the parties as possible, the Registrar will make decisions which cover the longest period possible, having regard to the circumstances of the case. A Registrar decision may cover more than one child support period and the decision may change from one period to another to account for differing circumstances in each period.

Limiting administrative options

Some change of assessment decisions can limit the administrative options available to the parties if their circumstances change. Setting the ATI of a party, for example, will prevent that person from using the estimate provisions (2.5.1). The Registrar will try to make a decision that makes an appropriate change to the assessment and has sufficient flexibility to respond to later changes in circumstances.

The Registrar will take into account:

  • whether the formula assessment will be an accurate reflection of the parties' circumstances in the future
  • whether the current circumstances are likely to continue and, if so, for how long
  • the possibility of future events that may be affected by the decision
  • the need to provide some certainty and consistency for parties
  • the type of decision being made.

Decisions that are income amount orders

A decision to change the formula assessment may be an 'income amount order' in relation to one or both parents (section 5). A parent cannot elect to have their child support assessment based on their estimated income during a period in which an income amount order (2.5.1) is in force in relation to the parent (section 60(6)).

Where a child turns 18

If the child will turn 18 in the final year of secondary education, the payee can apply to the Registrar to extend the assessment to the end of that school year (2.5.5) (sections 151B, 151C and 151D).

When a change of assessment decision is made, the Registrar will consider if the provisions of sections 151B and 151C are relevant. If so, the Registrar will express the decision to have effect until a terminating event occurs in relation to the child rather than the day before the child's 18th birthday. The change of assessment decision will then continue to apply to the child support assessment after the child's 18th birthday, if the assessment is extended until the end of the school year.

Can the Registrar change a child support assessment affected by a child support agreement or a court order?

The Registrar can make a change of assessment decision for any case where there is a child support assessment in force on the day the change of assessment application is made. However, the Registrar cannot vary the terms of a court order or child support agreement in any circumstances. If the Registrar's change of assessment decision conflicts with the terms of a court order or child support agreement, the conflicting provisions of the Registrar's decision will have no effect.

When a court makes an order that affects a child support assessment the Registrar must:

  • amend the child support assessment to give effect to the order (section 119(1)), and
  • continue to give effect to the order in any subsequent child support assessment (section 119(2)).

When accepting a child support agreement the Registrar must:

  • amend the existing child support assessment to give effect to the child support agreement (section 94(1)), or
  • make a new child support assessment to give effect to the child support agreement if there is no existing child support assessment (section 93(1)), and
  • continue to give effect to the agreement in any subsequent child support assessments (section 95).

If a court order or child support agreement affects a child support assessment, the Registrar can change that assessment by varying any component of the formula that is not set by the agreement or order.

Example: Nick and Annette have a child support agreement that varies Nick's ATI. Nick applies for a change of assessment because Annette has financial resources not reflected in Annette's ATI. The Registrar makes a change of assessment decision that varies Annette's ATI.

Example: Malcolm and Rachel have a court order that sets Rachel's annual rate of child support. The Registrar cannot make a decision that changes the annual rate of Malcolm and Rachel's child support assessment.

What happens if there is a terminating event after the Registrar makes a change of assessment decision?

If the assessment ends because of a terminating event

A child support assessment ends when a terminating event (2.10.3) occurs. This also applies to an assessment subject to a change of assessment decision and means that the change of assessment decision also ends.

If the Registrar later accepts an application for a child support assessment for that case (e.g. if a parent reapplies because the child returns to their care after living with a third party who did not apply for child support) the Registrar will make a child support assessment using the usual formula provisions, without regard to the change of assessment decision. Either parent is able to apply for a change of assessment if they believe the child support assessment is unfair and special circumstances apply.

A child support assessment will generally not end if the child/ren move/s from the care of one parent to the other (or to a non-parent carer who is a party to the child support assessment). This is because there is one child support assessment for all the children who share the same parents and the change of care will result in an amended assessment to reflect that change in circumstances. This means that a change of assessment decision will continue to apply after the change of care in these cases. In some cases, however, the change of assessment decision will have no effect.

Example: Alban and Shana have a child support assessment for one child Kenrick. To reflect Alban's unusually high medical expenses, a change of assessment decision reduces the amount of child support that Alban pays to Shana by $3,000 per year. Before the end date of the change of assessment decision, Kenrick moves in with Alban, and Shana becomes liable to pay child support to Alban. The change of assessment decision does not end because the assessment has not ended. However, it no longer has any effect because Alban no longer has a liability that can be reduced by $3,000. The change of assessment decision may again have effect if Alban becomes liable to pay child support to Shana once more and the end date of the change of assessment decision has not passed.

If the assessment continues after a terminating event

A child support assessment will continue if there is a terminating event (2.10.3) for one child, but there are other eligible children of the assessment. Where the child support assessment is in accordance with a change of assessment decision, the Registrar can amend the assessment to give effect to the terminating event for the child.

That same child may once again become an eligible child within the period affected by the change of assessment decision. If the child is once again included in the assessment, the Registrar will add the child, and can amend the assessment by reference to the change of assessment decision. For some types of change of assessment decisions, however, it may be necessary for a parent to make a fresh change of assessment application.

What happens if there is a change of circumstances that affects the annual rate of child support after the Registrar makes a change of assessment decision?

The Registrar can amend a child support assessment to give effect to a change of circumstances that affects the annual rate of child support (section 75) (2.9.5). Where the child support assessment is in accordance with a change of assessment decision, the Registrar can often amend that assessment to give effect to a change of circumstances that affects the annual rate of child support.

Example: The Registrar makes a decision to set a parent's ATI at $50,000 per year. That parent then has a child with their new partner. The Registrar can continue to use the ATI figure of $50,000 to calculate child support after adding the new child, to the assessment, as their relevant dependent child (2.4.7).

For other types of change of assessment decisions, however, giving effect to a change of circumstances that affects the annual rate of child support may result in the Registrar no longer giving effect to the change of assessment decision.

Example: Olivia and Natalie have one child Cynthia. Olivia has 100% care of Cynthia. The Registrar makes a change of assessment decision to set Natalie's annual rate to take into account the high costs of enabling Natalie to spend time with Cynthia. There is a change in care and the child is now in Natalie's 100% care. As a result Natalie no longer incurs costs to enable contact with the child. The Registrar amends the assessment to take into account the change in care and ceases to apply the change of assessment decision.

Example: George and Rebecca have one child Ellie, and each have 50% care of Ellie. George is assessed under the formula to pay child support to Rebecca. The Registrar makes a change of assessment decision that sets George's annual rate. There is a change in care and now George has 90% care and Rebecca has 10% care of Ellie. Rebecca is no longer an 'eligible carer' under the CSA Act because she has less than 35% care, which means she should not receive child support from George. The Registrar amends the assessment to take into account the change in care and ceases to apply the change of assessment decision.

Example: Asma and Jackson have one child Casey, and each have 50% care of Casey. Asma is assessed under the formula to pay child support to Jackson, due to her higher income. To reflect the high costs of Casey's private education, a change of assessment decision increases the amount of child support that Asma pays to Jackson by $7,000 per year. Asma becomes unemployed and lodges an income estimate of nil. As a result of her reduction in income, Asma is now assessed under the formula to receive child support from Jackson.

The change of assessment decision does not end because the child support assessment has not ended. However, it no longer has any effect because Asma does not have a child support liability that can be increased by $7,000. To take this into account, the Registrar amends the assessment by ceasing to apply the change of assessment decision. In the future, if Asma becomes liable to pay child support to Jackson once more and the end date of the change of assessment decision has not passed, the Registrar can amend the assessment to again reflect the change of assessment decision.

In other cases it may be necessary for a parent to make a fresh change of assessment application to take the change of circumstances into account.

Example: Dinesh and Sasha have 2 children Zita and Drea. The Registrar makes a decision to set Sasha's ATI at $72,000 per year for the period 1 January 2020 to 30 December 2021. Sasha advises the Registrar on 1 March 2021 that they are now unemployed and their income has reduced. Sasha must make a new change of assessment application to take into account the change in income.

Objection rights

The parents and any non-parent carers are entitled to object to the particulars of the amended assessment, or to the Registrar's decision to refuse to amend an assessment. The Registrar will advise both parents in writing of the decision and their right to object (4.1.2).

What happens if a court departure order or child support agreement is made where a change of assessment is in force?

Where a court departure order or child support agreement is made when a change of assessment decision by the Registrar (departure determination) is in force, the departure determination is ended and will not be reinstated when the court departure order or child support agreement ends. It would be open to either party to apply for a new change of assessment decision after the court departure order or child support agreement ends.

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