2.8.2 Implementing court orders that vary assessments
When the Registrar is notified of a court order made under the child support legislation, the Registrar must take action that is necessary to amend the child support assessment to give effect to the order. This section explains how the Registrar gives effect to specific kinds of court orders.
CSA Act section 66, section 75, section 98SA, section 108, section 112, section 113, section 116, section 118, section 119, section 127, section 138, section 142
CSRC Act Part VII, Part VIIIB
Implementation of court orders
When a court's decision under the child support legislation becomes final, the Registrar must take action that is necessary to amend the child support assessment to give effect to the order. However, the Registrar may, and generally will, give effect to a court order as soon as possible after being notified of the provisions of the court order, without waiting for the order to become final. If the order is changed following an appeal, the Registrar will amend the child support assessment again to reflect the terms of the later order.
Note: An order made by consent of the parties is an order of a court, and not a child support agreement.
When court orders become final
An order of a single Judge or Magistrate becomes final at the end of the period allowed by the court rules for an appeal to a higher court. This is usually 28 days. An order of the full bench of the Federal Circuit and Family Court of Australia (Division 1) will become final 30 days after it is made unless an application is made to the High Court for special leave to appeal.
This section explains how the Registrar gives effect to specific kinds of court orders, including:
- orders for a periodic amount
- orders for a nil assessment
- orders to reduce arrears
- orders varying, setting aside or nullifying an earlier order
- orders the Registrar cannot implement
- severability of clauses
The section also discusses:
- end dates of orders to change the assessment
- the effect of an agreement on an order to change the assessment
- the effect of a terminating event on an order to change the assessment
- orders setting a rate of child support for more than one child
- unemployment clauses
- self-supporting children
- children in full-time education
Orders for a periodic amount
An order may say that a parent must pay a periodic amount but not state whether the order is made under the CSA Act or if it is an order for a change to the assessment. The Registrar will interpret such orders as orders to change the assessment unless there is an indication to the contrary. If there is a heading on the order that suggests it is made under the provisions of the FL Act, Services Australia should obtain a copy of the application to check whether the applicant applied for a departure order.
The Registrar will generally accept that the court has acted correctly in making the order, unless there is a further court order that has set aside the order or a finding by a court that the order was made without power.
Orders reducing the assessment to nil
The Registrar cannot make a change of assessment decision that has the effect of reducing the annual rate of child support below the minimum annual rate of child support if the liable parent has less than regular care of the children (CSA Act section 98SA). However, a court may make such orders and the Registrar will give effect to them (CSA Act sections 118, 119, 66(8)(a)).
An order to reduce arrears under the CSA Act
A departure order or child support agreement may purport to discharge arrears where an assessment has been made under the CSA Act. The child support legislation does not expressly provide for arrears to be discharged, but the Registrar will give effect to these orders and agreements where possible by varying the rate of child support for a specified period. To avoid any uncertainty, a departure order or agreement that seeks to discharge arrears should set the rate of child support for the period at a rate equal to the amount of child support that has already been paid for that period. This will have the effect of removing the accrued child support arrears.
Orders varying, setting aside or nullifying a particular order
The CSA Act does not provide for a parent to apply to have a previous court order varied or set aside. However, the same effect can be obtained by applying to a court for a departure from the assessment. If a court makes such an order, the Registrar will interpret it to be an order to change the child support assessment and will make appropriate amendments to the assessment.
If a court makes an order that nullifies an earlier order, this means that the earlier order should not have been made and has no legal effect. The Registrar will amend the assessment as if the earlier order had not been made.
Orders the Registrar cannot implement
If the Registrar cannot give effect to an order, the parents and, if appropriate, their legal representatives must be advised. They must also be advised that they have the right to object (4.1) under Part VII of the CSRC Act if they consider that the particulars of their assessment are incorrect because the Registrar did not give effect to the order.
Severability of clauses in an order
A child support agreement or court order that contains clauses that can be accepted or registered under the child support legislation, may also contain clauses that cannot be accepted or registered under the legislation. The clauses that could usually be accepted or registered, cannot be if doing so without accepting or registering the other clauses would change their meaning or change the essential nature of the agreement or order. Such clauses are said to be 'not severable' from the other clauses and the application for acceptance or registration of the entire agreement or order must be refused.
The Registrar will advise both parents if there are clauses that cannot be accepted or registered and discuss alternative options.
End dates of orders to change the assessment
An order changing the assessment has effect until:
- a terminating event (2.10.3) occurs (CSA Act section 142)
- a further departure order is made, or
- the end date or occurrence of an event specified in the order has occurred.
Effect of a child support agreement on an order to change the assessment
When the Registrar accepts a child support agreement that includes provisions:
- for one party to pay periodic child support to another
- varying the rate at which periodic child support is already payable, or
- agreeing any other matter that can be included in an order made by the Court under Division 4 of Part 7
the agreement has the same effect as a new court order and can replace or otherwise affect an existing court order (CSA Act section 95(2)).
Terminating events & departure orders
A terminating event (2.10.3) may happen in relation to all or some of the children covered by the assessment subject to a court order that changes the assessment. The order ceases to be in force as of the date of the terminating event (CSA Act section 142, CSRC Act section 111H). The order will remain in force for any child not affected by the terminating event.
If a parent reapplies for an administrative assessment after a terminating event (e.g. because a child who had left their care later returns to their care), the Registrar will use the formula and not the departure order when a new assessment is made for the child for whom the assessment ended.
Where a departure order is in force that covers only some of the children of the relationship, or where the order has ceased to be in force for some of the children, the Registrar will make a 'mixed assessment'. Some of the children will be assessed in accordance with the departure order and others in accordance with the child support formula, as appropriate.
Setting a rate of child support for more than one child
A court order or agreement that sets a rate of child support for more than one child should ideally state how much is payable for each of the children. In the absence of such a statement, the Registrar cannot apportion the amount between the children. When the court order or agreement ends in relation to one or more of the children and the order does not specify an amount for each child, the Register will continue to reflect the full amount payable under that order or agreement.
Example: An order states that $100 per week each for the 2 children of the marriage is payable making a total of $200 per week. The eldest child reaches 18 years of age and the liability is reduced to $100 per week.
Example: An order states that $200 per week is payable for the children of the marriage. There are 2 children and when the eldest reaches 18 years, $200 will remain payable as it is not clear how the total amount was to be apportioned between them.
Court orders and child support agreements can suspend or reduce the liability when a parent is unemployed. Where a clause is ambiguous or uncertain, Services Australia will discuss the problem with both parents to try to obtain agreement about the intention of the clause. If the parents are unable to agree on the intention of the clause, the Registrar will take the following issues into account when interpreting the court order.
For the liability to be varied when a parent becomes unemployed, the Registrar must be able to determine the person's employment status. In the absence of any evidence to the contrary, the Registrar will accept that a parent is unemployed if they receive an income tested benefit or pension. Where the parent does not receive a benefit or pension, the Registrar will consider statements made by the parent and documentary evidence such as an employment separation certificate.
Many court orders and child support agreements allow for a reduced liability during periods when a parent is in receipt of 'unemployment benefits'. A difficulty arises when a parent is not employed but is not receiving an unemployment benefit, or is receiving another type of benefit. A broad interpretation will be given to the term 'unemployment benefits'. The Registrar may apply such a clause where the person is receiving an income tested benefit or pension as a result of not being in employment (e.g. disability support pension). However, a parent is still employed if they are receiving benefits but their employment has not been terminated.
A parent may be unable to work because of a work-related injury, and receive periodic compensation payments. The Registrar will determine if the parent is still employed by their employer. If the employment contract has been terminated, the Registrar will accept that the person is unemployed despite being in receipt of payments that may be greater than those payable to unemployed welfare beneficiaries.
A court can make an order that varies a parent's liability in a current period of unemployment, or one that applies during any period of unemployment.
Example: An order states that the amount payable is to be reduced to $10 per week until Kylie gains full-time employment. This applies to Kylie's current period of unemployment.
Example: An order states that the amount payable is to be reduced to $10 per week during periods when Kylie is not in full-time employment. This applies whenever Kylie is not in full-time employment after the date of the order.
Court orders and child support agreements sometimes contain a provision providing for a reduction in child support payable if the child is self-supporting. Where a clause is ambiguous or uncertain, Services Australia will discuss the problem with both parents to obtain agreement about the intention of the clause. If the parents are unable to agree on the intention of the clause, the Registrar will interpret the clause in the following way.
The Registrar must be satisfied that the child is self-supporting. The Registrar will not consider whether or not the child is capable of being self-supporting or should be self-supporting.
In determining whether a child is self-supporting, the Registrar will determine the child's actual income and whether the child is paying for their basic living expenses without financial support from another person. Basic living expenses include accommodation, food, utilities and transport costs. The Registrar will disregard social security payments the child is receiving except where the child is not living with the payee. If the child is also making lifestyle choices that would not be available without an independent source of income (e.g. buying a car), the child is more likely to be self-supporting.
If the child is living away from home, the Registrar will consider whether the payee continues to have care and control of the child or whether the child is living independently from the payee and meeting their own costs. The Registrar will consider whether there has been a terminating event.
If the child continues to live with the payee, they will be self-supporting if they pay a reasonable contribution towards household expenses including accommodation, food, utilities and transport costs, or if they pay board equal to this amount to the payee. If the child is living with the payee but is not contributing towards those household expenses, or is only making a nominal contribution, the Registrar will find that the child is not self-supporting.
The Registrar will not attempt to obtain this information from a child under the age of 18 years and will request evidence from the parents in order to make a decision.
Children in full-time education
Court orders and child support agreements sometimes state that they are to operate until a child ceases to be in full-time education or until they finish a particular level of education such as secondary schooling. Where a clause is ambiguous or uncertain, Services Australia will discuss the problem with both parents to try to obtain agreement about the intention of the clause. If the parents are unable to agree on the intention of the clause, the Registrar will consider the following issues when interpreting the clause.
Some institutions such as TAFE offer a range of courses from secondary education to vocational training and higher education courses. Tertiary education involves a distinct qualification, a certificate, diploma or degree, rather than matriculation or vocational training. The Registrar will ask for evidence from the payee about the child's student status. If the child is still at secondary school, the Registrar will find that the child is in full-time education.
If the child has finished secondary school and is studying at an institution that considers the child as a full-time student, the Registrar will generally accept that the child is in full-time education. See 3.5.6 for more information.