The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

5.1 What is a change of assessment?

Context

The Registrar uses an administrative formula to make a child support assessment (1.1.C.70). The administrative formula is explained in 2.2. However, if parents (1.1.P.10) or children have special circumstances, the administrative formula may not provide a fair level of child support (1.1.C.60).

Either party to an assessment can apply for a change of assessment (1.1.C.50). The Registrar can also initiate a change to a child support assessment where the Registrar believes that the income, property and financial resources or earning capacity of either parent is not accurately reflected in the assessment (Reason 8A (5.2.8) and Reason 8B (5.2.9)). This is called a 'Registrar-initiated change of assessment' (5.6.2).

CSA Act Part 6A provides a means for the Registrar to administratively change a child support assessment to reflect the special circumstances of a case. CSA Act Part 7 Division 4 provides a means for certain court to change a child support assessment to reflect the special circumstances of a case.

This topic explains when the Registrar or a court can consider changing an assessment.

Act references

CSA Act Part 6A, Division 3 of Part 7, Division 4 of Part 7, section 136

On this page

Special circumstances

The phrase 'special circumstances of the case' is not defined in the CSA Act. The Family Court held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary' (Gyselman and Gyselman (1992) FLC 92-279).

The Registrar or a court can only change an assessment if one or more of 10 listed reasons (5.2) is established in the special circumstances of the case (sections 98C, 117(1)(b)(i) and 117(2)). If one of the reasons for a change of assessment is established, the Registrar or a court must also consider whether changing the assessment would be 'just and equitable' (5.3) and 'otherwise proper' (5.4) (sections 98C(1) and 117(1)(b)(ii)).

Parties to a change of assessment

The parties to a change of assessment application are the liable parent and the carer entitled to child support (CSA Act section 98B(2)). All the parties to the assessment (including non-parent carers) are parties to the change of assessment.

The parties to a Registrar-initiated change of assessment are the liable parent and the carer entitled to child support (section 98K(2)). If there is more than one payee (1.1.P.30) or payer (1.1.P.40) 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.

Period for which the assessment can be changed

The Registrar can prospectively change the child support assessment and may also make a determination changing the assessment for up to 18 months prior to the date upon which the person lodges their change of assessment application with Services Australia (section 98S(3B)(a)).

The earliest date from which the Registrar can change the assessment is 18 months prior to the day after the day the change of assessment application was made.

Example: A change of assessment application was lodged on 15 July 2020. The earliest day from which the Registrar can change the assessment is 16 January 2019.

If the person applying for a change of assessment wants the Registrar to consider changing the assessment for a period 18 months or more prior to their application, they can apply to a court for leave under section 111. A court may grant leave for the Registrar to make a change to the assessment for a specified period up to 7 years prior to the day on which the person applied to the court for leave (section 112(7)). A court may alternatively grant leave and make an order itself to change the assessment for up to 7 years prior to the day on which the application to the court was made. It is not necessary for the applicant to have applied for the court to make the order itself, only that the court is satisfied that to do so would be in the interest of the parties (section 112(3A), see 10.4.2 for an application for amendment of administrative assessment (1.1.A.30) that is more than 18 months old).

The Registrar can make a prospective change to the assessment of child support and may also make a retrospective determination to change the assessment for up to 18 months before the date upon which the parties were notified that the Registrar was considering making a change to the assessment (section 98S(3B)(b)). The Registrar can apply to court for leave to be granted under section 112 to make a retrospective determination that changes the assessment for up to 7 years before the day upon which the application was made to the court for leave (section 111(3)).

Can the Registrar or a court change a child support assessment if it has ended?

The Registrar can make a change of assessment decision for a CSP (1.1.C.150) that has ended, however the applicant's child support assessment for that child must still be in force on the day the application for a change of assessment is made (section 98B(1)).

Where the child support assessment has ended (for example, due to a terminating event), an application cannot be made for the Registrar to make a change of assessment for a past period, even if a court were to grant leave (under section 112) for the Registrar to make a change of assessment decision.

An application can be made to a court to make a change of assessment decision under section 118 in relation to a case that has ended:

  • an application can be made under section 116 to a court for an order under section 118 to vary the child support assessment for a period that is less than 18 months earlier than when the application is made, by an applicant who is
    • a parent or carer who is a party to a pending application in a court having jurisdiction under the CSA Act, or
    • a paying parent who is assessed on the MAR (2.3.4) (1.1.M.20).
  • if a parent or carer wishes to amend an assessment for a day in a CSP that is more than 18 months but less than 7 years earlier than when the application is made, they must apply (under section 111) to a court for leave (under section 112). If leave is granted under section 112, they are taken to have applied under section 116 and the court may make an order under section 118 to vary the child support assessment for that period.
  • the court can make an order under section 118 where a parent or carer's child support agreement has been set aside by the court under section 136, and there was an administrative assessment already in place at the date from which the agreement was set aside.

Death of party during change of assessment proceedings

If one party dies while the change of assessment proceedings are underway, the application may continue if the Registrar is satisfied that the deceased party had a reasonable opportunity to provide relevant information, or their representative can provide it on their behalf.

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