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5.5.2 A decision to change an assessment - types of decisions

Context

CSA Act lists the types of decisions the Registrar can make when changing an assessment.

Act references

CSA Act section 5, section 60, section 74, section 75, section 98C, section 98S, section 112, section 117, section 119, section 151B, section 151C, section 151D

On this page

The types of decisions that can be made

The Registrar can:

  • vary the annual rate (1.1.A.70) of child support (1.1.C.60) (section 98S(1)(a)),
  • vary the cost percentage (1.1.C.200) for a child (section 98S(1)(b)),
  • vary the parent's (1.1.P.10) child support income (3.1) (1.1.C.120) (section 98S(1)(c)),
  • vary the parents' combined child support income (1.1.C.190) (section 98S(1)(d)),
  • direct that the 'cap' on costs of children (2.3.1.10) in the costs of children table does not apply (section 98S(1)(e)(i) and (ii)),
  • vary a parent's child support percentage (1.1.C.140) (section 98S(1)(f),
  • vary a parent's ATI (3.1.1) (1.1.A.20) (section 98S(1)(g),
  • vary a parent's relevant dependent child (1.1.R.60) amount or multi-case allowance (1.1.M.30) (section 98S(1)(h)),
  • vary a parent's self-support amount (1.1.S.20) (section 98S(1)(i)),
  • vary the COTC (2.3.1) (section 98S(1)(j)).

If satisfied that a change should be made, the Registrar must make a decision that changes the assessment to better account for the special circumstances of the case. The Registrar can then take into account any relevant factor to decide the appropriate level of child support (section 117(9)).

There are some types of change of assessment (1.1.C.50) decisions that the Registrar cannot make. This includes a decision to vary an assessment to an amount lower than the MAR (1.1.M.20) of child support (2.3.4) for a particular CSP (1.1.C.150) unless the payer (1.1.P.40) has at least regular care (1.1.R.50) of at least one of the children in that child support case (4.1.1) (1.1.C.80) (section 98SA). Refer to 5.2.1 for further information.

Contrary decisions

The Registrar's decision is not limited to reasons claimed in the application and may be different to the change requested (section 98S(2)). The Registrar can make a decision that has the opposite effect to the change requested. This is referred to as a contrary decision.

The legislation does not define the circumstances in which the Registrar would consider making a contrary decision. However, the Registrar can only do so when satisfied that at least one of the 10 change of assessment reasons exist, and where a change would be just and equitable and otherwise proper.

If the Registrar believes that a contrary decision should be made, the applicant and respondent will be given an opportunity to comment upon the information that may lead to a contrary decision.

Example: Anna applies for an increase to the child support assessment (1.1.C.70) payable by Karl, because of the costs associated with the special needs of the child Holly. The Registrar finds that Anna has some extra costs because of Holly's special needs; however, the Registrar also finds that Karl's income has recently reduced and the assessment is now unfair because of Karl's income. After discussing the circumstances with both parties, the Registrar decides to increase the assessed COTC (1.1.C.210), but reduce Karl's ATI. This has the effect of reducing the child support assessment.

Example: Oscar is retrenched from a long-term position. After several months, Oscar has some part-time work and also receives an income support payment. Oscar lodges an estimate of income for the remainder of the financial year, which is an annualised amount of $15,000. The Registrar reduces Oscar's assessment from the date of Oscar's estimate. Oscar owes $2,000 in arrears (1.1.A.100) of child support. Oscar applies for a reduction to the child support assessment for the period between the date of retrenchment and the date the estimate took effect.

In addition to Oscar's part time income of $100 per week, Oscar has $85,000 invested in a term deposit, and has recently paid off the mortgage on the home which was purchased after separation. Henrique has sole care of their 3 children Esther, July and Fergus. Henrique is unemployed and lives in public housing. The Registrar finds that although Oscar's income has reduced, Oscar has significant financial resources that are not included in Oscar's ATI, and that Oscar's ATI does not therefore accurately represent Oscar's capacity to meet the costs of Esther, July and Fergus. After discussing the circumstances with both parties, the Registrar decides not to reduce the past assessment (and therefore Oscar's arrears), and instead increases the child support assessment for the next 12 months.

How long should a decision apply?

The reasons for a change of assessment may help to determine the duration of a decision.

The Registrar will make a decision that produces an appropriate change to the assessment and, if possible, allow for future changes in circumstances to be assessed without the need for a further application to change the assessment. If it is likely that future events may affect the assessment unpredictably, it may be best to make a decision for a shorter period.

To provide as much certainty and consistency for the parties as possible, the Registrar will make decisions which cover the longest period possible, having regard to the circumstances of the case. A Registrar decision may cover more than one CSP and the decision may change from one period to another to account for differing circumstances in each period.

Limiting administrative options

Some change of assessment decisions can limit the administrative options available to the parties if their circumstances change. Setting the ATI of a party, for example, will prevent that person from using the estimate provisions (3.4). The Registrar will try to make a decision that makes an appropriate change to the assessment and has sufficient flexibility to respond to later changes in circumstances.

The Registrar will take into account:

  • whether the formula assessment (1.1.F.20) will be an accurate reflection of the parties' circumstances in the future
  • whether the current circumstances are likely to continue and, if so, for how long
  • the possibility of future events that may be affected by the decision
  • the need to provide some certainty and consistency for parties
  • the type of decision being made.

Decisions that are income amount orders

A decision to change the formula assessment may be an 'income amount order' (1.1.I.10) in relation to one or both parents (section 5). A parent cannot elect to have their child support assessment based on their estimated income during a period in which an income amount order is in force in relation to the parent (section 60(6)).

Where a child turns 18

If the child will turn 18 in the final year of secondary education, the payee (1.1.P.30) can apply to the Registrar to extend the assessment to the end of that school year (2.5.3) (section 151B, section 151C and section 151D).

When a change of assessment decision is made, the Registrar will consider if the provisions of section 151B and section 151C are relevant. If so, the Registrar will express the decision to have effect until a terminating event occurs in relation to the child rather than the day before the child's 18th birthday. The change of assessment decision will then continue to apply to the child support assessment after the child's 18th birthday, if the assessment is extended until the end of the school year.

Can the Registrar change a child support assessment affected by a child support agreement or a court order?

The Registrar can make a change of assessment decision for any case where there is a child support assessment in force on the day the change of assessment application is made. However, the Registrar cannot vary the terms of a court order or child support agreement in any circumstances. If the Registrar's change of assessment decision conflicts with the terms of a court order or child support agreement, the conflicting provisions of the Registrar's decision will have no effect.

When a court makes an order that affects a child support assessment the Registrar must:

  • amend the child support assessment to give effect to the order (section 119(1)), and
  • continue to give effect to the order in any subsequent child support assessment (section 119(2)).

When accepting a child support agreement the Registrar must:

  • amend the existing child support assessment to give effect to the child support agreement (section 94(1)), or
  • make a new child support assessment to give effect to the child support agreement if there is no existing child support assessment (section 93(1)), and
  • continue to give effect to the agreement in any subsequent child support assessments (section 95).

If a court order or child support agreement affects a child support assessment, the Registrar can change that assessment by varying any component of the formula that is not set by the agreement or order.

Example: Nick and Annette have a child support agreement that varies Nick's ATI. Nick applies for a change of assessment because Annette has financial resources not reflected in Annette's ATI. The Registrar makes a change of assessment decision that varies Annette's ATI.

Example: Malcolm and Rachel have a court order that sets Rachel's annual rate of child support. The Registrar cannot make a decision that changes the annual rate of Malcolm and Rachel's child support assessment.

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