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6.4.1 Changing a child support agreement

Context

Child support (1.1.C.60) agreements cannot be varied and remain in force until they end or are terminated (6.4.2).

Changes can be made to the relevant liability in line with the provisions of the agreement.

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Changing a child support agreement

Child support agreements cannot be varied. However, child support agreements may be terminated and replaced with another child support agreement and can make reference to provisions in a previous child support agreement.

Act reference: CSA Act section 80CA No variation of binding child support agreements, section 80F No variation of limited child support agreements

Change in circumstances while a child support agreement is in place

Child support agreements remain in force until they end or are terminated. Changes can be made to the assessment in line with the provisions of the agreement.

Example: On 1 December 2019 the Registrar accepts a binding child support agreement (1.1.B.30) for Valdemar and Naomi that states that Valdemar is to provide $50 a week to Naomi for child Emanuela. Naomi has full-time care (1.1.C.10) of Emanuela. The agreement also states that upon care changing to Valdemar, Naomi will be required to pay Valdemar $20 per week. On 1 January 2022 Emanuela moves into the full-time care of Valdemar. The agreement continues to be in force and the assessment is adjusted in line with the agreement that Naomi will pay Valdemar $20 a week.

However, where the agreement does not make provision for a change in circumstances, the agreement will continue to be enforced according to its terms, until it ends or is terminated.

Example: On 1 December 2018 the Registrar accepts a binding child support agreement for Aron and Pema that states that Aron is to provide $50 a week to Pema for child Jorrit. Pema has full-time care of Jorrit. There is no provision in the agreement to take into account a change in care arrangements. On 1 January 2021 Jorrit moves into the 65% care of Aron and there has been no substantial change in the incomes of Aron and Pema from when the agreement commenced. The agreement continues in force with the requirement for Aron to pay Pema $50 a week (even though Aron now has 65% care of Jorrit) until the agreement ends or is terminated.

Example: On 1 October 2020 the Registrar accepted a limited child support agreement (1.1.L.40) made on 1 July 2018 for Jimi and Teresinha that states Jimi is to provide $50 a week to Teresinha for child Branka. Teresinha has full-time care of Branka at the time the agreement is accepted. The agreement has no provisions for what would happen if Branka went into a shared care (1.1.S.40) arrangement between both Jimi and Teresinha.

On 15 August 2021 Jimi and Teresinha move to each having 50% care of Branka. The agreement continues to be in force with the requirement for Jimi to pay Teresinha $50 a week (even though Jimi now has 50% care of Branka).

As the agreement was not made more than 3 years ago, neither Jimi nor Teresinha can give the Registrar written notice of the termination of the agreement. However, a party to the agreement may request a new notional assessment (NA) (1.1.N.20). If the amount under the new NA varies by more than 15% compared to the previous NA, and as the agreement did not contemplate the change in circumstances related to the change in care for Branka, either Jimi or Teresinha can give the Registrar written notice of the termination of the agreement within 60 days of receiving notice of the new NA.

Example: On 1 January 2015 the Registrar accepted a limited child support agreement for Reed and Vasu made on 15 December 2014 that states Reed is to provide $100 a week to Vasu for child Tomas. Vasu has full-time care of child Tomas. There is no provision in the agreement to take into account a change in care arrangements. On 1 July 2021 Tomas moves into the 65% care of Reed. The agreement continues to be in force with the requirement for Reed to pay Vasu $100 a week (even though Reed now has 65% care of Tomas).

As the agreement was made more than 3 years ago, either Reed or Vasu can give the Registrar written notice of the termination of the agreement. This can be done at any time and does not require the agreement of the other party.

From 1 July 2018, when a party to an agreement who is entitled to be paid child support is no longer an eligible carer (1.1.E.10) of the child, the agreement may be suspended (6.4.3). If that party to the agreement does not become an eligible carer again before the period of suspension ends, the agreement is terminated from the day that party originally ceased to be an eligible carer (6.4.2).

Example: Donna and Josh have an administrative assessment (1.1.A.30) under the formula in place. On 1 March 2019 the Registrar accepted a binding child support agreement for Donna and Josh made on 23 January 2019 that states Donna is to provide $200 a week to Josh for child Rodney. Josh has full-time care of child Rodney.

On 1 February 2020 Rodney moves into the full-time care of Donna. As Josh is no longer an eligible carer for child Rodney, the agreement is suspended. Donna does not pay $200 a week to Josh during this suspension period. Child support is paid in line with the provisions of the formula, so that Josh is liable to provide $40 a week to Donna for child Rodney.

Donna and Josh do not take action to extend the 28 day suspension period and Donna continues to have full-time care of child Rodney. The agreement is then terminated on 1 February 2020 (being the day Josh ceased to be an eligible carer) after the suspension period ends on 29 February 2020.

Example: Clarke and Lexa separate and enter into a binding child support agreement. On 1 November 2019 an application for acceptance of the binding child support agreement was made. As child support was not already payable the start date of the agreement was the date the application for acceptance was made to the Registrar. The agreement states Lexa is to provide to Clarke $250 a week each for children Abigail and Finn. Clarke has full-time care of both children.

On 30 September 2020 Finn moves into the full-time care of Lexa. As Clarke is no longer an eligible carer for child Finn, the agreement in respect to Finn is suspended.

Both Clarke and Lexa notify the Registrar on 15 October 2020 they want the agreement suspended for longer than 28 days in respect to child Finn. The liability for child Finn is nil during the suspension period as there was no prior assessment of child support before the agreement was accepted. Lexa continues to pay $250 a week to Clarke for child Abigail during this time.

Lexa makes an election to end the CSA Act section 93 assessment (based on the agreement) in respect to Finn, and applies for a formula assessment (1.1.F.20). The agreement revives as a result of the application for formula assessment, but as Clarke is still not an eligible carer of Finn, the agreement is suspended upon revival. Child support is paid in line with the provisions of the formula for child Finn, so that Clarke is liable to provide $150 a week to Lexa for Finn.

On 1 March 2021, child Finn returns to Clarke's full-time care before the extended suspension period is over. As such, the agreement resumes its full effect on the rate of child support, and Lexa is again liable under the agreement to pay Clarke $250 a week for child Finn.

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