Challenging a Child Support Assessment

Child support assessments in Australia are governed by the Child Support (Assessment) Act 1989, which provides a framework for determining financial obligations between parents. While the system aims to ensure fairness and consistency, disputes can arise when one party believes that they are being asked to pay the incorrect amount of child support. In such cases, it may be necessary to challenge a child support assessment through an administrative review appeal or even litigation. This article provides an overview of the legal avenues for challenging child support assessments, focusing on legislative provisions, procedural requirements, and common grounds for challenges.

Overview of child support assessments

The Department of Human Services, also known as Services Australia, administers child support assessments in Australia. These assessments calculate the amount a parent must pay based primarily on:

• the adjusted taxable income of both parents,
• the amount of time each parent spends with the child, and
• standardised tables that reflect the cost of raising children at different income levels.

While the formula is designed to be equitable, it may not always account for unusual circumstances. The law allows parties to challenge assessments when they believe the calculation is flawed or fails to reflect all the relevant circumstances. A parent can file an objection within 28 days of the child support assessment.

Grounds for challenging a child support assessment

Common grounds for challenging child support assessment include administrative errors, changes in financial circumstances, incorrect information and special circumstances.

Administrative errors

Errors in processing or data entry by Services Australia can lead to incorrect assessments. For example:

• misreporting of a parent’s income,
• failing to account for updated care arrangements, and
• applying the wrong calculation method.

Changes in financial circumstances

If a parent experiences a significant change in income, such as losing their job or receiving a large bonus, they may seek to vary the assessment. Parents are legally required to notify Services Australia of such changes without delay.

Incorrect information

Assessments may be challenged if one parent provides inaccurate or incomplete information, such as:

• understating income (such as by engaging in cash in hand work);
• misrepresenting of care arrangements.

Special circumstances

In some cases, the standard formula used to calculate child support may not produce a fair outcome due to relevant circumstances, such as:

• high costs of travel for a parent to maintain contact with the child;
• medical or educational expenses for the child; or
• a parent supporting a significant number of other dependents.

Process for challenging a child support assessment

Challenging a child support assessment typically involves the following steps:

Requesting an administrative review

The first step is to apply for a Change of Assessment in Special Circumstances through Services Australia. This process allows a parent to request a review of the assessment on specific grounds outlined in the Act.

Application requirements

The application must detail:

• the grounds for the challenge and
• evidence supporting the claim (such as financial records, care schedules, or medical reports).

Decision-making process

A senior Services Australia officer will consider an application for review of the calculation of child support and will determine whether to vary the assessment. Factors that will be considered include the:

• financial impact on both parents,
• child’s best interests, and
• reasonableness of the applicant’s claims.

Appealing to the Administrative Review Tribunal

If the parent is dissatisfied with the outcome of the review, they can lodge an appeal with the Administrative Review Tribunal (ART). The ART provides an independent review of the decision.

Scope of review

The ART can review:

• the application of the child support formula and
• decisions on Change of Assessment applications.

Procedural steps

1. The appeal must be lodged within 28 days of receiving the decision,
2. The ART may conduct a conference to explore resolution options, and
3. If the matter remains unresolved following negotiation, a formal hearing is conducted where both parties can present evidence and arguments.

Judicial Review in the Federal Circuit and Family Court

In rare cases, a parent can escalate their dispute to the Federal Circuit and Family Court of Australia. Judicial review is limited to assessments of whether Services Australia or the ART made a legal error, such as:

• failing to consider relevant evidence or
• misapplying legislative provisions.

Judicial review does not allow for a reassessment of facts or a new determination of child support. Instead, it focuses on whether the decision-making process was legally sound.

Evidence in child support challenges

Challenging a child support assessment requires robust evidence to substantiate claims. Common types of evidence include:

• tax returns, payslips, and business financials,
• parenting plans, school attendance records, or affidavits from third parties, and
• receipts for child-related costs, travel expenses, or medical bills.

Defences against challenges

The receiving parent may oppose a challenge by arguing:

• the current assessment is accurate and reflects the statutory formula,
• the challenging parent has failed to disclose their full income or assets, and/or
• adjusting the assessment would cause undue financial hardship.

It is possible to challenge a child support assessment in Australia to ensure that it reflects the financial realities of parents and the needs of children. While the process can be complex and time-consuming, it offers an opportunity to address errors, changes in circumstances, and inequities in the assessment. Consult Go To Court Lawyers on 1300 636 846 for assistance with challenging a child care assessment.