2.6.6 Registrar-initiated change of assessment
The Registrar can initiate a change of assessment without an application from a payer or payee if satisfied that the child support assessment is unfair because of a parent's income, earning capacity, property or financial resources.
CSA Act section 75, section 76, Part 6A (especially Division 3), section 112, section 150A
On this page
- When can the Registrar initiate a change of assessment?
- Parties to a Registrar-initiated change of assessment
- Summary of information
- Right to respond
- Joint election to stop the proceedings
- Each party entitled to be heard
- Registrar not obliged to conduct investigations
- Procedural fairness
- Making a child support agreement during a Registrar-initiated change of assessment
- Matters too complex
- Registrar must give written notice of the decision
When can the Registrar initiate a change of assessment?
The Registrar can initiate a change of assessment without an application from the payer or payee if satisfied, in the special circumstances of the case, that the child support assessment is unfair because of a parent's income, earning capacity, property or financial resources (Reason 8 (2.6.14)) (sections 98K and 98L(1)(a)). 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 must also be satisfied it is just and equitable (2.6.17) and otherwise proper (2.6.18) to change the assessment (section 98L(1)(b)).
The Registrar can only make a change of assessment decision if there is a child support assessment in force for a child on the day the Registrar makes the determination (section 98K). This means that the Registrar cannot make a change of assessment decision for a past period (under section 98K) if there is no longer a child support assessment in force in relation to a child.
The Registrar must notify the parties of the proposal to change the assessment by sending them a summary of information (section 98M).
Parties to a Registrar-initiated change of assessment
The parties to a Registrar-initiated change of assessment are the liable parent/s and the carer/s entitled to child support (section 98K(2)). If there is more than 1 payee or payer in the case, because of a non-parent carer, then all the parties involved in the case are parties to the Registrar-initiated change of assessment.
Summary of information
When a change of assessment is initiated by the Registrar, the parties must be notified in writing (section 98M(1)). The Registrar must also serve a summary of the information the Registrar used to form the view that a change to the assessment should occur (section 98M(2)). The summary will contain sufficient detail to enable the parties to understand how the Registrar arrived at the recommended rate.
Right to respond
All parties must be given an opportunity to provide information for the Registrar to consider when making a decision to change the assessment (section 98N(2)). Services Australia may send each party the following forms to obtain additional information:
- We are considering changing your Child Support Assessment form.
- Statement of financial details - reviewing your assessment form.
If a party completes the response form, the Registrar will send a copy of that response and any supporting documents to the other party (section 98N(2)). However, the Registrar will not send a copy of the response or supporting documents to the other party if those documents include obscene or otherwise offensive material. Such responses have not been made in the manner specified by the Registrar (section 150A) and no further action will be taken on them. Parties will be contacted and given the opportunity to re-submit the response and supporting documents, without the offensive material, if they choose to.
Joint election to stop the proceedings
If a payee is not receiving an income-tested pension, benefit or allowance (2.6.17), the parties can make a joint election to ask the Registrar to discontinue the process (section 98P(1)). Parties can do this by completing the form Joint election to stop a change to your child support assessment being initiated or by making the election over the phone. An election is still considered to be jointly made if the payer and payee ring separately and make the election. The Registrar will notify the parties in writing that a decision to change the assessment will not be made because of their joint election (section 98P(3)).
Each party entitled to be heard
Each party must be provided with an opportunity to be heard by the decision maker making a decision on a Registrar-initiated change of assessment (section 98Q(2)). However, the Registrar can decide to refuse to change the assessment (2.6.3) without providing either party with the opportunity to discuss the Registrar-initiated change of assessment.
As a general rule, parties cannot have a representative appear for them during the change of assessment process (section 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 information used to form the view that a change of assessment should be initiated, including any responses and supporting documents provided by the parties (section 98Q(1)(a)). The Registrar can conduct further inquiries, but is not obliged to do so (section 98Q(1)(b)). If the Registrar requires further information from either party, or from third parties, a notice requiring a person to provide that information (6.2.3) can be issued (section 161).
The Registrar must deal with a Registrar-initiated change of assessment in a way that is procedurally fair. A decision maker 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 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 a decision maker or by a third party.
Making a child support agreement during a Registrar-initiated change of assessment
Parties can make a child support agreement while the Registrar is considering making a Registrar-initiated change of assessment decision. The Registrar will decide whether the agreement can be accepted, in the same way a child support agreement is made while considering a change of assessment (2.6.5) application from either party (section 98U(1)).
Matters too complex
The Registrar may refuse to make a change to the assessment if it is determined that a parent's financial circumstances, or the issues associated with the case, are too complex to be decided (section 98R).
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 (section 98S(4)). 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, the validity of the decision is not affected (section 98S(5)).
The Registrar must amend the administrative assessment to give effect to the change of assessment decision and give the payer and payee a written notice of the assessment (sections 75 and 76). The assessment notice must include, or be accompanied by, information about the payer and payee's 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 payer and payee must be provided with written reasons for that decision and information about the payer and payee's right to object to the Registrar's decision, and to apply for an AAT first review if they are aggrieved by the Registrar's decision on the objection (section 98RA).