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2.7.6 Suspending a child support agreement

Context

Child support agreements are binding on parents. However, from 1 July 2018, when the parent entitled to be paid child support is no longer an eligible carer of the child, the agreement may be suspended.

Act references

CSA Act section 5, section 7B, section 34B, section 75, section 80D, section 80G, section 86, section 86A, section 93, section 151

Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 Schedule 1 item 74

On this page

Suspension of child support agreements when person is not an eligible carer

Where there is no applicable role swap clause in a child support agreement, the agreement is suspended in relation to a child if:

  • a party (the former carer) to the agreement who is entitled to be paid child support for the child (disregarding offsetting provisions under CSA Act section 67A) under the agreement is not an eligible carer of the child (CSA Act section 86(1)(a)), and
  • the period during which the former carer has not been an eligible carer of the child is (CSA Act section 86(1)(b))
    • 28 days or less, or
    • if CSA Act section 86(2) applies - 26 weeks or less, and
  • a child support terminating event under CSA Act section 12(2AA) does not occur (where both parents are not eligible carers of the child and no non-parent carers are entitled to be paid child support in relation to the child) (CSA Act section 86(1)(c)), and
  • the former carer would otherwise continue to be paid child support for the child under the agreement despite ceasing to be an eligible carer (CSA Act section 86(1)(d)).

As long as the former carer ceases to be an eligible carer of the child, a suspension period may be in effect for up to 26 weeks (CSA Act section 86(1)(b)) if:

  • the child support agreement provides that the agreement is to be suspended if a party to the agreement ceases to be an eligible carer of the child for a period of more than 28 days (CSA Act section 86(2)(a))
  • after the former carer ceases to be an eligible carer, each of the parties to the agreement notifies the Registrar, before the end of the 26 week period, that the parties to the agreement want the agreement suspended for more than 28 days (CSA Act section 86(2)(b)), or
  • the Registrar is satisfied that there are special circumstances in relation to the change in the care of the child (CSA Act section 86(2)(c)).

A suspension of a child support agreement, under CSA Act section 86, starts from the day the former carer ceases to be an eligible carer. An eligible carer has at least 'shared care' of the child, which is between 35% and 65% care of the child during a care period (CSA Act section 5(3) and section 7B).

The agreement may continue without suspension in relation to other children that the agreement relates to if the person does not cease to be an eligible carer of those children.

Effect of suspension of child support agreements

Child support agreements resulting in a section 34B assessment

A section 34B assessment is a child support assessment that is varied in accordance with the provisions set out in a child support agreement upon the acceptance of that agreement.

When a child support agreement resulted in a section 34B assessment and the agreement is subsequently suspended, child support would be paid according to a formula assessment to the parent who is the current eligible carer.

Child support agreements resulting in a section 93 assessment

A section 93 assessment is a child support assessment that arises upon the acceptance of a child support agreement where child support was not already payable before the agreement was accepted.

When a child support agreement resulted in a section 93 assessment and the agreement is subsequently suspended, child support is not payable for a child under the child support agreement where the agreement was suspended under CSA Act section 86 (CSA Act section 93(1A)). The liability for the child would be nil during the suspension period, as there was no prior assessment of child support before the Registrar accepted the agreement. However, CSA Act section 151(1A) provides an option to parties in such cases to elect to end the section 93 assessment and apply for a formula assessment. See 2.10.2 for further information about elections to end assessments.

Where a section 93 assessment is terminated under CSA Act section 151(1A) and the same parent who elected to end the assessment applies for a new formula assessment, the child support agreement is revived. If the parent entitled to be paid child support under the agreement is still not an eligible carer for the child, the agreement is suspended upon revival. The parent who is the eligible carer of the child may potentially receive child support payments under the formula assessment.

Apportioning during suspension period

If the agreement ceases to relate to a child because of the suspension, the apportioning amount worked out under CSA Act section 86A(2) continues to apply in relation to each of the remaining children to whom the agreement relates. See 2.7.1 for further information about apportioning amounts in child support agreements.

When suspension of child support agreements ends

If the former carer becomes an eligible carer of the child again within the 28 day (or up to 26 weeks in certain circumstances) period before the suspension ends, the child support agreement is no longer suspended. The assessment based on the agreement will resume its effect on the rate of child support payable to the parent entitled to be paid child support under the agreement.

If the 28 day (or up to 26 weeks in certain circumstances) period ends and the former carer does not become an eligible carer of the child again, the suspended agreement would terminate (CSA Act section 80D(2A) and section 80G(1B)). See 2.7.5 for further information about terminations of child support agreements.

When the party who makes the CSA Act section 151(1A) election, applies for an administrative assessment before the liability to pay child support under the agreement ends, the agreement is revived by CSA Act section 142(1B) (2.10.2). When the agreement revives, and the former eligible carer has not regained care, the suspension period resumes and will end 28 days (or up to 26 weeks) from the original suspension commencement date. If the former eligible carer does not regain care within 28 days (or longer if an extended suspension period is in place), the agreement will terminate on the day the former carer ceased to be an eligible carer of the child (CSA Act section 80D(3)(d) and section 80G(2)(e)).

In some situations, an agreement has already been terminated after 28 days under CSA Act section 80D(2A) or section 80G(1B) and the parties to the agreement wish to extend the suspension period despite the agreement being terminated. The Registrar can use the general amendment of assessment power under CSA Act section 75 to reflect a change between termination and suspension where parents agree (within 26 weeks of the care change) to extend the suspension period beyond 28 days (CSA Act section 86(2)).

In cases where special circumstances apply under CSA Act section 86(2)(c) and the Registrar is not notified of the special circumstances within 26 weeks of the care change, a 26 week suspension period can apply retrospectively.

What are special circumstances?

The discretionary nature of special circumstances makes it impossible to give a precise list of factors that should be taken into account when considering whether the special circumstances provision should be applied. When considering whether special circumstances in relation to the change of care of the child/ren apply, the Registrar will look at the particular circumstances of the case. The person must explain why they have ceased to be an eligible carer of the child, and the Registrar will consider the reason for the change of care of the child together with their circumstances, to establish if they are sufficiently special for a suspension period to be granted for up to 26 weeks. Some examples of when the Registrar may be satisfied special circumstances apply include:

  • the parent was seriously ill or had an accident
  • the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
  • the parent was a victim of family violence
  • there are other exceptional circumstances.

If the Registrar is satisfied that there are special circumstances, the Registrar will then consider whether it is appropriate to exercise the discretion to grant a suspension period for up to 26 weeks.

WA ex-nuptial cases

The information on this page applies to WA ex-nuptial children.

For information on when provisions apply for WA ex-nuptial cases, see 1.3.2.40 for changes to the CSA Act.

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