4.3.2 Applications & orders about decisions under the CSA Act

Context

A parent can apply to a court for a range of orders about child support assessments and decisions made under the CSA Act.

This topic does not cover review by a court of a decision by the Registrar or the ART on an error of law. For guidance on these matters, refer to 4.3.7 and 4.3.6 respectively.

On this page

• Court applications that can be made under the CSA Act
• Declaration that a person should be assessed in respect of the costs of the child because the person is a parent of the child (section 106A)
• Declaration that a person should not be assessed in respect of costs of the child because the person is not a parent of the child (section 107)
• Application for leave to make a change of assessment decision in relation to an administrative assessment for a period that is more than 18 months earlier (sections 111 & 112)
• Application for a change to a child support assessment in special circumstances (section 116)
• Application for child support to be paid in a form other than periodic amounts or a lump sum (section 123)
• Application to have a court set aside an agreement (section 136)
• Urgent maintenance orders (section 139)
• An order for recovery of an amount where no liability to pay child support existed (section 143)
• Other powers of the court (section 143B)

Court applications that can be made under the CSA Act

In some circumstances, the CSA Act allows parents to apply directly to a court with family law jurisdiction for a range of orders.

The parties to court proceedings under the CSA Act are the parents and any non-parent carer (where relevant). However, the Registrar must be served with a copy of any application or appeal (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.13(4)(c)). The Registrar may intervene in any court proceedings under the CSA Act (section 145). If the Registrar intervenes in court proceedings, the Registrar is taken to be a party and has all the rights, duties and obligations of a party to the proceedings.

Parents and non-parent carers can make the following court applications under the CSA Act:

• if an application for an assessment has been refused because the Registrar could not be satisfied about the parentage of the child, an application can be made for a declaration that a person should be assessed in respect of the costs of the child because that person is a parent of the child (section 106A)
• if the Registrar has accepted an application for an assessment, an application can be made for a declaration that a person should not be assessed in respect of the costs of the child because that person is not a parent of the child (section 107). An application cannot be made under section 107 if the Court has previously made a declaration under section 106A (section 107(1A)). Instead, an appeal may be made against the section 106A declaration.
• an application for leave for the Registrar or a court to make a change of assessment decision in relation to an administrative assessment for a period that is more than eighteen months earlier (sections 111 and 112)
• an application for a change to a child support assessment because of special circumstances (section 116), where
  • the parents have other family law matters in the court, or
• an application for an order for child support to be provided in a form other than periodic amounts or a lump sum (section 123)
• an application to have a court set aside a child support agreement or a termination agreement (section 136)
• an application for an urgent maintenance order (section 139)
• an order that a payee refund an amount of money paid as child support where no liability to pay child support existed (section 143).

The fact that such proceedings are before a court (or the Registrar in some instances) does not prevent the child support assessment being made and enforced, unless a court makes a stay order staying the operation of the assessment.

A court can make a stay order under the CSRC Act section 111C which stays or otherwise affects the operation or implementation of the CSA Act or the CSRC Act. An application to a court for a stay order under the CSRC Act can be made if:

• a proceeding has been instituted in a court having jurisdiction under the CSRC Act
  • this does NOT include an appeal to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) from an ART decision under the ARTAct (see 4.3.6 for a stay order under the ARTAct)
• an objection is proceeding before the Registrar under Part VII of the CSRC Act
• a review is proceeding before the ART, other than in relation to a guidance and appeals panel application or in relation to an ART second review
• a departure determination is proceeding under Part 6A of the CSA Act
• court review of certain decisions is proceeding under Part 7 of the CSA Act.

Declaration that a person should be assessed in respect of the costs of the child because the person is a parent of the child (section 106A)

If the Registrar refuses to accept an application for a child support assessment, and one of the reasons was that the Registrar could not be satisfied that a person named is a parent of the child, then an application to court can be made for a declaration that the person should be assessed in respect of the costs of the child because the person is a parent of the child.

Most applications under section 106A are made to the Federal Circuit and Family Court of Australia (Division 2). The application must be made within 56 days of receiving the notice of refusal to accept an administrative assessment of child support for the child (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.13(3)).

If a person is outside that timeframe, they may ask the court for an extension of time to file the application. If an extension of time is not sought or granted, a person can reapply to the Registrar for an application for administrative assessment. If there is no information to allow the Registrar to be satisfied about parentage, a new notice of refusal will issue, enabling a court application under 106A to be made within the 56-day time frame.

The parties to the court application are each person who was to be assessed in respect of the costs of the children. Where the application is made by a non-parent carer, the non-parent carer is also a party. Although not a party to the court application, the Registrar has the power to intervene in the proceedings (section 145).

Alternatively, the applicant can make a new application for assessment. If the applicant is able to provide new information that would satisfy one of the presumptions of parentage in relation to the person to be assessed in respect of the costs of a child, the Registrar can accept the application. If a new application is made, any resulting assessment will only take effect from the date of the new application. If the new application is refused, the person can seek a court declaration under section 106A.

Effect of a section 106A declaration

If the court makes a declaration under section 106A and the only reason for refusal of the application was the lack of proof of parentage, the Registrar is taken to have accepted the application for an administrative assessment with effect from the date that the Registrar originally received the application. If there were other reasons for refusal of the application, the Registrar has to reconsider the application in light of the court's declaration.

A court may make a section 106A declaration in a case where the Registrar has refused more than one child support application in relation to the same parties. The Registrar will attempt to establish which child support application was cited in the court application, including by examining the court application, if this is not apparent from the declaration. The Registrar's administrative assessment will start from the date that the Registrar received the child support application cited in the court application. If it is not possible to identify which refused application for assessment provided the basis for the court application, in the absence of information to show that the court extended the time to apply for the declaration, the Registrar will generally assume that the most recent application was considered by the court and the assessment will start from the date of that application.

Declaration of parentage or section 106A declaration

The Registrar will not reconsider an application for assessment on the basis of a declaration that is not clearly made under section 106A. The court order must state that it is made under section 106A and/or that the person named in the order should be assessed in respect of the costs of the child. It is not sufficient for the court to simply declare that a person is the parent of the child, as it may do, for example, under FL Act section 69VA.

However, an order, such as a parentage declaration under FL Act section 69VA, can be used to satisfy parentage requirements for a fresh application for assessment (CSA Act section 29(2)(c)). This will result in a child support assessment being made from the date of the fresh application only. See 2.1.3 on parentage and 4.3.4 on FL Act orders affecting a child support assessment.

Declaration that a person should not be assessed in respect of costs of the child because the person is not a parent of the child (section 107)

If the Registrar accepts an application for an administrative assessment for child support, an application to court can be made for a declaration that a person should not be assessed in respect of the costs of a child because the person is not the parent of the child. The parties to the court application are the person who was assessed in respect of the costs of the child and the person who applied for the administrative assessment. Although not a party to the court application, the Registrar has the power to intervene in the proceedings (section 145).

An application for a declaration under section 107 cannot be made if a court has already declared under section 106A (see above) that the person concerned should be assessed in respect of the costs of the child. Instead, the applicant may appeal the section 106A declaration (section 107(1A)). If a payer is successful in having a section 106A declaration overturned on appeal, and where a court has made an order under CSA Act section 143 requiring the former payee to repay an amount to the former payer, the Registrar can register the order and recover these amounts (3.1.2).

A parentage declaration under FL Act section 69VA does not have the effect of a declaration made under CSA Act section 107 and therefore the Registrar will not end the administrative assessment. See 4.3.4 for more information on section 69VA orders.

Payments of child support pending the application

Where child support is collectable by the Registrar, child support will continue to be collected from a payer who makes an application to a court for a declaration under section 107, but the payment of child support to the payee for that particular child will be suspended until the court deals with the application (CSRC Act section 79A) (5.5.4).

A payer can also apply to the court for a stay order under CSRC Act section 111C for an order that affects the liability or the payment of the liability pending the outcome of the section 107 declaration.

Effect of a section 107 declaration on the child support assessment

If a court makes a declaration under section 107, the Registrar is taken never to have accepted the application for child support for that child. The Registrar will end the administrative assessment for that particular child from the start date of the assessment.

Where the section 107 declaration does not relate to all of the children in the child support case, the Registrar will reassess the child support for the remaining children on the basis that the assessment has always related to those children only (section 107A). The Registrar will only reassess the assessment for the 'affected days', that is, the days where there is at least one child who is subject to a section 107 declaration and at least one child who is not.

Effect of a section 107 declaration on child support payments

The Registrar will refund to the payer any payments that were held pending the outcome of the section 107 application (5.5.4). However, the Registrar will not repay any amounts already paid to the payee.

Where the assessment ends from the start date because the section 107 declaration applies to all the children of the case, the amounts disbursed to the payee constitute an overpayment to the payee.

Where the child support is reassessed because the section 107 declaration does not apply to all the children of the case, the amounts previously disbursed to the payee under the original assessment are applied to the amounts payable under the amended assessment (section 107A). If the total of the amounts disbursed exceed the total of the amended amounts payable, the excess amount constitutes an overpayment to the payee (section 107A(4)).

If child support is reassessed but there is a period of time where the child affected by the section 107 declaration was the only child of the assessment, any amounts disbursed to the payee under the assessment for that period are not applied to the amended amounts payable (section 107A(3)). Amounts are considered paid under particular assessment periods on the basis that payments are made towards the oldest outstanding debt first.

Overpayments created as a result of section 107 declarations are not debts to the Commonwealth and are not recoverable by the Registrar. However, the overpayment can be recovered by the payer obtaining a court order under CSA Act section 143(3A). These orders can be registered with the Registrar for collection. The court must consider making such an order as soon as practicable after making a declaration under CSA Act section 107.

If a section 143 order is registered for collection and the payee under that order is a payer who owes child support (arrears or ongoing) to the other parent, the Registrar may offset the debts by reducing the higher debt by the amount of the lesser debt (CSRC Act section 71AA).

See 5.3.2 for more information about offsetting debts.

Application for leave to make a change of assessment decision in relation to an administrative assessment for a period that is more than 18 months earlier (sections 111 & 112)

A court may grant leave under section 112 for:

• the Registrar to make a retrospective change of assessment decision under CSA Act section 98S, or
• a court to make a retrospective departure decision under CSA Act section 118

which would change the assessment of child support payable for a day that is more than eighteen months before the date upon which an application for leave was made to the court under section 111. The court cannot grant leave to change an assessment for a day that is more than 7 years before the date of the application under section 111 (section 112(7)(a)).

Application by parent or non-parent carer for leave

A parent and any non-parent carer can apply to the court for leave for the Registrar to make a change of assessment determination under CSA Act section 98S or for the court to make a departure order under CSA Act section 118 in relation to an administrative assessment for a period that is more than eighteen months earlier (section 111(1)). There must be a child support assessment in force at the time of applying for a change of assessment for the Registrar to make a change of assessment determination under CSA Act section 98S. However, a court can make a departure order under CSA Act section 118 in relation to a case that has ended. See 2.6.5 for more information on the change of assessment process.

The court must take into account the matters listed in CSA Act section 112(4) and may have regard to any other relevant matter when deciding whether to grant leave (section 112(5)).

If the court grants leave, it will make an order specifying the period for which the court or the Registrar may change the assessment (section 112(6)). However, the order does not imply that the Registrar or the court is required to make a change for the specified period (section 112(8)).

If the court considers that it would be in the interests of the parties for the court to deal with the application for a change of assessment, rather than have a parent apply to the Registrar for a change of assessment, the applicant is taken to have made an application to the court under section 116 (section 112(2)).

The parties to the application are the parents and any non-parent carer (section 111(2)), although the Registrar can choose to intervene in the proceedings (section 145).

Application by the Registrar for leave

The Registrar can apply to the court for leave to make a change of assessment decision (2.6.6) in relation to an administrative assessment for a period that is more than eighteen months earlier (section 111(3)).

The Registrar will only apply to the court in exceptional circumstances. The Registrar must also consider the public interest and those matters listed in section 112(4) before initiating court processes.

If the Registrar applies to the court for leave, the parties to the application are the parents, any non-parent carer and the Registrar (section 111(4)).

When dealing with an application from the Registrar for leave, the court must take into account the same matters that it considers when it deals with an application from a parent or non-parent carer. The types of orders the court can make are the same, regardless of who makes the application for leave.

Application for a change to a child support assessment in special circumstances (section 116)

In some circumstances, a parent or non-parent carer can apply to a court for a change to their child support assessment if one or more of a specified range of special circumstances apply to them, their children or the other parent. These special circumstances are the same as the reasons for an application to the Registrar for a change of assessment (2.6).

When can a parent or non-parent carer apply to court for a change of assessment?

In most cases, a parent or non-parent carer must first apply to the Registrar for a change of assessment (2.6). A parent may only apply directly to a court for a change to their child support assessment in the following circumstances (section 116):

• they are the liable parent and are assessed at the minimum rate of child support under CSA Act section 66(1)
• the liable parent or the carer entitled to child support have another matter pending in a court with jurisdiction under the CSA Act and the court is satisfied that it would be in the interests of the liable parent and the carer entitled to child support for the court to consider whether a departure order should be made.

The court will decide whether there is a ground to depart from the administrative assessment and, if so, whether it is fair and proper to do so.

Parties to the court application

The parties to the application are the parents and any non-parent carer in the case (section 116(3)). Although not a party to the court application, the Registrar has the power to intervene in the proceedings (section 145).

Payments of child support pending the application

The Registrar's assessment of child support continues to apply while the court deals with a parent's application and the Registrar will continue to collect child support payable under the assessment. However, a parent can apply to the court for a stay order (4.3.6) under CSRC Act section 111C for orders that affect the liability or the payment of the liability pending the outcome of the application.

Application for child support to be paid in a form other than periodic amounts or a lump sum (section 123)

A parent or non-parent carer may apply to a court for child support to be paid otherwise than by periodic payments or as a lump sum payment to be credited against the relevant child support liability. A common example is where a parent entitled to receive child support applies for an order requiring the other parent to make payments of school fees or to make a one-off payment of child support at the time of property settlement in substitution for (section 124), or to be credited against (section 123A), the periodic liability.

An application under section 123 may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent, on the day the application is made (section 123(2)(a)).

An order for child support to be paid in a form other than periodic amounts (section 124)

When a court makes an order for child support to be in a form other than periodic amounts, it must also specify whether the payment is to reduce the relevant child support assessment (section 125).

The order may state that:

• payments under the order will reduce the relevant child support assessment by a certain percentage or a specific amount, or
• payments under the order will not affect the relevant child support assessment.

If the court does not specify how the order will affect the child support liability, it will not affect the assessment of child support.

Orders for child support to be paid in the form of a lump sum payment (section 123A)

A court may make an order for a parent to provide child support in the form of a lump sum payment to be credited against the relevant child support assessment if:

• the amount of the lump sum payment equals or exceeds the annual rate of child support payable under the administrative assessment (section 123A (1)(c)).

If the court makes such an order, the lump sum payment is credited, under CSRC Act section 69A, against the amount payable under the child support liability (rather than reducing the annual rate of child support payable under the administrative assessment). The order must specify the percentage of the relevant liability that is to be met in this way (subsection 123A(3)).

The remaining lump sum amount is indexed each year in line with inflation (CSRC Act section 69A). See 5.3.3 for information about crediting lump sum payments.

An application to have a court set aside an agreement (section 136)

A person who is a party to a child support agreement or a termination agreement can apply to a court to have the relevant agreement set aside. The court may set aside an agreement if:

• the agreement of one of the parties was obtained by fraud, undue influence or unconscionable conduct
• another party to the agreement or someone acting for another party exerted undue influence or duress in obtaining agreement or engaged in unconscionable or other conduct to such an extent that it would be unjust not to set aside the agreement
• the agreement is a limited child support agreement (2.7.1) and there has been a significant change in the circumstances of one of the parties or the relevant child so that it would be unjust not to set aside the agreement
• the agreement is a limited child support agreement and provides for an annual rate of child support that is not proper or adequate
• the agreement is a binding agreement (2.7.1) and there are exceptional circumstances which have arisen since the agreement was made that means a party to the agreement or the relevant child will suffer hardship if the agreement is not set aside. (There have been several decisions which have discussed the meaning of 'exceptional circumstances' with most citing Simpson and Hamlin (1984) FLC 91-576. In the decision of Daley & Daley (2009) FMCAfam 398, the Federal Magistrate stated that the circumstances 'must be considered within the overall legislative structure created by the CSA Act.' The court has also said that separate factors can have a cumulative effect and amount to 'exceptional circumstances' (Gallup & Gallup (2009) FMCAfam 839)), or
• the agreement is a transitional agreement (2.7.1), and the court is satisfied that the agreement was made before 1 July 2008, was made without at least one of the parties to the agreement receiving independent legal advice from a legal practitioner before entering the agreement, and that it would be unjust and inequitable if the agreement is not set aside.

Parties to the court application

The parties to the application are the parties to the child support agreement. Although not a party to the court application, the Registrar has the power to intervene in the proceedings (section 145).

Powers of the court if the agreement is set aside

• If the court sets aside a child support agreement, the agreement is terminated on the day on which the court order takes effect (CSA Act section 80D and section 80G).
• If the agreement resulted in a child support assessment under section 34B (because child support was already payable), the court may make a departure order pursuant to CSA Act Part 7 Division 4 without the need for a separate application to be made, provided that the court is satisfied that a ground for departure as set out in section 117(1)(b) exists, and that it is just and equitable to make a departure order (section 136(4)), or
• no ground for departure exists, but the court is satisfied that it is just and equitable to make the order having regard to benefits that the payee has received pursuant to the agreement (section 136(5)).
• If the agreement initiated a child support assessment under section 93 (because child support was not already payable) child support will cease to be payable for a child covered by the agreement (CSA Act section 93(1)(h)). As a result, the court would not be able to exercise the discretion in subsection 136(4) to make an order under CSA Act Part 7 Division 4.

If a court sets aside the agreement it can make consequential orders to preserve or adjust the rights of the child or the parents (section 137).

Urgent maintenance orders (section 139)

If an application for the administrative assessment of child support has been made to the Registrar and a court is of the opinion that the child is in urgent need of financial assistance, the court may order the payment of a periodic or other amount even if the Registrar has refused to accept the application.

An urgent maintenance order has effect for the period specified in the order. However, if a child support application is later accepted or refused the urgent maintenance order ceases to have effect once:

• child support becomes payable for the child under an administrative assessment (the liability under the urgent maintenance order will end from the start date of liability of the assessment)
• the Registrar's decision to refuse an application for assessment becomes final because the period within which an application could be made to a court under section 106A, or to the ART, or the period within which an appeal could be made to a court, has ended and an application has not been made to a court or to the ART for an ART review (section 139(2B)), or
• the decision of a court or the ART that the person was not entitled to an administrative assessment becomes final.

An order for recovery of an amount where no liability to pay child support existed (section 143)

CSA Act section 143 gives a court the discretion to make an order for recovery of amounts paid under a child support assessment or registered maintenance liability. The court may make such orders as it considers just and equitable to give effect to, or to adjust, the rights of the payer and payee concerned.

For further details, see 5.5.5 and 3.1.2.

Other powers of the court (section 143B)

A court may dismiss a proceeding under the CSA Act if it is satisfied that the proceeding is frivolous or vexatious (section 143B).