3.5.6 Other common provisions in court orders & agreements
The words in court orders and court registered agreements have their ordinary meaning. Despite this, some clauses may be unclear or ambiguous. The Registrar will interpret common terms and provisions consistently.
CSRC Act section 17, section 18, section 18A
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The Registrar will interpret the following common terms and provisions in the following way.
- Previous orders discharged, vacated, set aside or nullified
- Orders setting a rate of child support for more than one child
- Unemployment clauses
- Self-supporting children
- Children in full-time education
- Interpreting overseas court orders
Previous orders discharged, vacated, set aside or nullified
Orders that vary previous orders are often worded in this way. In some cases, the intention of the court and, therefore, the date of effect of the order is unclear. This can be especially important when a sequence of orders have been made over a period of years that vary the previous orders.
This means the whole order or specified clauses within the order are ended. The discharging order may specify a date when the discharge becomes effective. Otherwise, the order or clauses in the order cease to have effect from the date of the discharging order.
The whole order or specified clauses in the order are left vacant, and are ended. The vacating order may specify a date when the order or clause vacated ceases to have effect. Otherwise, they will cease to have effect from the date of the vacating order.
This is a variation which ends a clause or an order from the date the original order was made, or from a later date if specified in the setting aside order. In contrast to the above, if no date is specified the order or clauses in the order are set aside from the date of the original order.
Where an order or clause has had retrospective effect, and that order or clause is later set aside on appeal, the original order or clause that had retrospective effect is ended from the date/s the original order or clause first took effect or from a later date if specified in the setting aside order.
This is a declaration that an order or clause is legally void or inoperable. The order or clause is considered never to have had any effect and must be treated as if it were never made.
Orders setting a rate of child support for more than one child
A court order 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 court registered 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 court registered agreements can suspend or reduce the liability when a parent is unemployed. Where a clause is ambiguous or uncertain, DHS 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. The Registrar will accept that a parent is unemployed if they receive an income tested benefit or pension, in the absence of any evidence of employment. Where the parent does not receive a benefit or pension, the Registrar will consider statements made by the parent and documentary evidence such as a certificate of separation.
Many court orders and 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 or Sickness Allowance). However, if a parent is receiving benefits but their employment has not been terminated the parent is still employed.
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 which 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 Anthea gains full-time employment. This applies to Anthea's current period of unemployment.
Example: An order states that the amount payable is to be reduced to $10 per week during periods when Linda is not in full-time employment. This applies whenever Linda is not in full-time employment after the date of the order.
Orders and 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, DHS 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 clause will be interpreted 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 his or her basic living expenses without financial support from another person. Basic living expenses include accommodation, food, household utilities and transport costs. The Registrar will disregard Centrelink payments the child is receiving except where the child is not living with the payee. If the child is also making lifestyle choices which 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, utilities and food and groceries or if they pay board equal to this amount to the payee. If the child is living with the payee but 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
Orders 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, DHS 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 following issues will be considered when interpreting the clause.
Tertiary education involves a distinct qualification, an associate diploma, diploma or degree, rather than matriculation or vocational training. This is usually how orders for children over 18 years are worded. Associate diplomas can be undertaken at some TAFE Colleges and DHS would normally contact the college concerned to ascertain the level given by the college.
Institutions such as TAFE offer a range of courses from secondary education, vocational and pre-vocational training as well as certificate, pre-tertiary and associate diploma courses. If the parents disagree about the level of education the child is undertaking, DHS will ask the payee for information about the child's student status.
Where a child who is under 18 is attending high school, or undertaking a secondary level course at a TAFE college, the Registrar will accept this to be secondary education. It may be necessary to contact the TAFE college to ascertain this.
Where the child is at school or attending an institution that designates the child as a full-time student, the Registrar will generally accept that the child is in full-time education.
Period between end of secondary school & commencing tertiary education
Parents may disagree about child support in the period between a child finishing school and commencing a full-time tertiary course. The Registrar will accept that the child is in full-time education in the holiday period if the child has indicated an intention to continue their education (e.g. by applying for a place and then enrolling in a tertiary course). The holiday period extends from the day after the final day of secondary school (as early as October) to the commencement day of the next academic year (the following February or March).
A child may also apply for entry into a tertiary course but not win a place or may be offered a place but not enrol in the course. In these cases, the Registrar will treat the child as being in full-time education until the failure to gain a place is notified or until the final date for enrolment is passed, as long as the child has indicated an intention to continue in education until that time.
A child may defer a course of study for a period. During the deferral period, the child is not enrolled in a course of full-time study. The deferral period will extend from the day the application for deferral of the course is accepted until the day the student resumes the deferred course.
In determining the child's education status, the Registrar will not consider any income received by the child unless the court order or court registered agreement makes this relevant.
Interpreting overseas court orders
Where a court order is made by a judicial authority of a reciprocating jurisdiction (1.5.1), the information in this chapter can be used as a general guide to interpret the order. However, ultimately interpretation of an overseas order is a matter for the central authority of the reciprocating jurisdiction (1.5.1) in which the order was made. Where a clause is ambiguous or uncertain, or where there is disagreement between the parents as to the correct interpretation of an overseas order, the Registrar will seek clarification from the relevant central authority.
For more information on administering overseas maintenance liabilities see 3.6 on overseas orders, court registered agreements and assessments.