The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. TheĀ information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

2.6.5 Change of assessment process - application from payer or payee

Context

The CSA Act sets out the procedure the Registrar must follow when considering a payer or payee's change of assessment application.

Act references

CSA Act section 5, section 75, section 76, section 146A, section 150A, section 161, Part 6A

Electronic Transactions Act 1999 section 8

Electronic Transactions Regulations 2000 Schedule 1

FL Act section 4

FL Regs regulation 12A

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008 Schedule 3 Part 3

On this page

Making a change of assessment application

A person cannot apply for a change of assessment by phone. The Registrar requires that a change of assessment application be made in writing on the appropriate form (6.2.1) (CSA Act sections 98D and 150A).

The form Application to change your assessment - special circumstances is available from Services Australia service centres or the Services Australia website.

In order to make a valid change of assessment application, the person must complete and sign the form.

It is important that an application for a change of assessment contains enough information to allow the Registrar to make a determination. Under CSA Act section 98F, the Registrar may make a decision not to change the assessment without taking any further action if:

  • the application does not disclose any of the 10 change of assessment reasons, or
  • a change of assessment reason exists, but it would not be just and equitable or otherwise proper to make a decision to change the assessment.

The applicant should identify the period for which a change is sought. The Registrar has limited powers to make a retrospective change of assessment decision (2.6.4).

The Registrar will not consider an application that includes obscene or otherwise offensive material. Such applications have not been made in the manner specified by the Registrar and will not be accepted (CSA Act sections 98D and 150A). If the Registrar determines the application will not be accepted, a copy of the application and accompanying documents will not be sent to the other party.

Services Australia will contact the applicant to provide them an opportunity to re-submit the application and supporting documents without the offensive material, if they choose to.

Parties to a change of assessment

The parties to a change of assessment application are the liable parent/s and the carer/s entitled to child support (CSA Act section 98B(2)). All the parties to the assessment (including non-parent carers) are parties to the change of assessment.

Copy of application to the other parent

When the Registrar receives a change of assessment application, a copy of the application and any documents that accompanied the application will be sent to the other party (CSA Act section 98G) provided that the Registrar has no reason to believe a person's last known address is inaccurate. The Registrar is not required to send a copy of the application or supporting documents to the other party if a decision is made to refuse the application (2.6.3) after making initial contact with the applicant (section 98G(1)) or if the applicant withdraws at this time.

If the response or supporting documents include obscene or otherwise offensive material, the Registrar will determine that they have not been provided in the manner specified (CSA Act section 150A). The Registrar will not consider the documents and a copy will not be sent to the other party.

Services Australia will contact the respondent and give them an opportunity to re-submit the response and supporting documents, without the offensive material, if they choose to.

Right to respond to application

The Registrar must give the other party an opportunity to respond to the application (CSA Act section 98G(2)). The Registrar does this by sending the other party (the respondent) a copy of the application and accompanying documents (section 98G(1)) and informing them in writing that they have an opportunity to respond to the application. The Registrar is not required to give the other party an opportunity to respond to an application if a decision is made to refuse to make a determination (2.6.3) (section 98G(1)) or the applicant has withdrawn their application.

If the respondent provides a response, the Registrar will send a copy of that response and any documents that accompanied it to the applicant (section 98G(3)).

If the respondent's response or supporting documents include obscene or otherwise offensive material, the Registrar will determine that they have not been provided in the manner specified (CSA Act section 150A). The Registrar will not consider the documents and a copy will not be sent to the applicant. Services Australia will contact the respondent and give them an opportunity to re-submit the response and supporting documents, without the offensive material, if they choose to.

If the respondent does not provide a response within a reasonable period of time, the Registrar will consider the application for change of assessment on the basis of the initiating application (and accompanying documents) and any information gathered independently by the Registrar.

Each party entitled to be heard

All parties must be given an opportunity to be heard by the decision maker, except where a decision is made to refuse to make a determination (2.6.3) under CSA Act sections 98E, 98F or 98J(2).

Each party to the assessment must be provided with an opportunity to discuss the application with a decision maker before a decision is made.

Unlike a court hearing, a decision maker cannot take evidence under oath, or cross examine a party about the evidence they give during their discussions or in their application.

As a general rule, parties cannot have a representative appear for them during the change of assessment process (CSA Act sections 98H(5) and 98Q(5)). However, there are 2 exceptions. The following persons can apply for a change of assessment in the name of the party or participate in a change of assessment process:

  • A person appointed under an administration order to manage the financial affairs of a party, for example, an administrator, public trustee or guardian. In such instances, that person is not considered to be representing the party because they are legally permitted to act as if they are the party.
  • A person with an Enduring Power of Attorney that is acting for the party because the party is incapable of attending to, or making decisions concerning, their estate/affairs because of a medical condition (mental or physical).

In limited circumstances, the involvement of a third party may be appropriate to facilitate the change of assessment process. For example, an interpreter may be required or a parent may request an Indigenous Service Officer to help.

Registrar not obliged to conduct investigations

The Registrar can make a change of assessment decision on the basis of the application, the other party's response and any supporting documents that the parties provided (CSA Act section 98H(1)(a)).

The Registrar can conduct further enquiries, but is not obliged to do so (section 98H(1)(b)). If the Registrar requires further information from a party, or from third parties, a notice requiring a person to provide that information (6.2.3) can be issued (CSA Act section 161).

The Registrar will request that each party provide documents in support of their application or response. The Registrar will examine and weigh the evidence presented by the parties, which includes their written and oral statements, as well as the supporting documents. The Registrar may request that the applicant or respondent provide further information or documents before making a decision on the application.

The Registrar will require a person to provide evidence in support of a claim that they cannot work, or have a reduced capacity to work, because of a medical condition. The usual acceptable form of medical evidence is by way of a written report or medical certificate from a registered medical practitioner. The evidence provided needs to establish that the person is suffering from a medical condition that will affect the person's ability to work. It should state the manner and the period for which that condition will affect the person's capacity to work. The Registrar may also require medical evidence of a child's special needs or of the medical condition of a person for whom the applicant provides care, or has a duty to maintain (2.6.15).

Procedural fairness

The Registrar must manage the change of assessment process in a way that is procedurally fair. The Registrar must ensure that a person is aware of any adverse information and that they have an opportunity to be heard and make submissions in support of their case. In addition to providing each party with a copy of the other party's response or application and supporting documents, the Registrar will also advise each party of any additional information that is intended to be taken into account in a way that is adverse to them, and invite them to comment upon that information. This would include information provided by the other party during conversations with the decision maker, or by a third party.

Agreements & change of assessment

Parties can make a child support agreement (2.7.1) while the Registrar is considering a change of assessment application (CSA Act section 98T). The Registrar must accept:

  • a binding child support agreement, or
  • a limited child support agreement if the Registrar is satisfied it is just and equitable (2.6.17) to do so (CSA Act section 98U(2)).

If an agreement is accepted while the Registrar is considering a change of assessment application, the assessment will be based on the agreement rather than on a change of assessment decision. The change of assessment process may continue for the purpose of varying a provisional notional assessment (2.7.4) and therefore the notional assessment amount. The notional assessment is used to determine the receiving parent's entitlement to FTB (CSA Act section 146D(3)).

Where parents already have an agreement in place, and a new provisional notional assessment has been issued, a parent may request a change of assessment to vary this provisional notional assessment (CSA Act section 146C). A change of assessment decision will relate only to that provisional notional assessment.

If the agreement ends and the assessment reverts to the administrative formula or is based on a new agreement, any change of assessment decision affecting the previous notional assessment will not affect the assessment. Parents can apply to change their assessment or to vary the provisional notional assessment (2.7.4) that is issued under the new agreement by applying for a new change of assessment decision if they still require a change due to the special circumstances in the case.

Registrar must give written notice of the decision

The Registrar must give the parties written reasons for the decision to change an assessment, including the reasons for establishing that special circumstances existed in the case (CSA Act section 98S(4)). This provides the parties with a clear understanding of the relevant considerations and decision making process. The Registrar will also document the reasons for the type and duration of the decision in the notice of decision. If the Registrar fails to give written reasons to either party this does not affect the validity of the decision (section 98S(5)).

The Registrar must also amend the administrative assessment to give effect to the change of assessment decision and give the parties a written notice of the assessment (CSA Act sections 75 and 76). The assessment notice must include, or be accompanied by, information about the parties' right to object to the Registrar's decision (4.1.2), and to apply for an AAT first review if they are aggrieved by the Registrar's decision on the objection (section 76(3)).

If the Registrar refuses to make a change to the assessment (2.6.3), the parties must be provided with written reasons for that decision.

WA ex-nuptial cases & applications made prior to 6 January 2009

The Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008 amended CSA Act sections 80E and 98U from 6 January 2009. Those amendments apply to WA ex-nuptial cases from a later date.

See 1.2.3 for details of the date from which various provisions had effect for WA ex-nuptial cases.

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