The Registrar uses administrative formulas to calculate child support assessments. He or she considers income and care when calculating the child support a parent must pay. In special circumstances, the Registrar of Child Support can change an assessment. The provisions that empower the registrar to do this are found in Part 6A of the Child Support (Assessment) Act 1989.
If a parent believes that the amount of child support that should be paid has changed since the Child Support Assessment, he or she can use the online Child Support Estimator to work our the amount of child support payable under a formula assessment.
What are Special Circumstances?
If a parent or a child has special circumstances, the administrative formula may not arrive at the correct level of child support. Part 6A of the Act provides a means for the Registrar to administratively change a child support assessment to reflect the special circumstances in a particular case.
Although special circumstances are not defined in the Act, there is case law that states that the term is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary.
There are 10 reasons that can form the basis for a change of assessment. These are:
- The cost of maintaining a child is significantly affected by the high cost involved in a parent spending time with, or communicating with, the child;
- The cost of maintaining a child is significantly affected by the high costs associated with the child’s special needs;
- The cost of maintaining a child is significantly affected by the high cost of caring for, educating or training the child in the way that the parents intended;
- The child support assessment is unfair as a result of the child’s income, the child’s earning capacity, or the child’s property or financial resources;
- The child support assessment is unfair as a result of the payer having paid money, or transferred goods or property to the child, the other parent, or to a third party for the benefit of the child;
- The cost of maintaining the child is significantly affected by high childcare costs for the child (if the child is under 12);
- A parent’s necessary expenses significantly affect their capacity to support the child;
- A child support assessment is unfair because of the income, earning capacity, property or financial resources of a parent;
- A parent’s capacity to support the child is significantly affected by any of the following:
- their duty to maintain other children or persons,
- their necessary expenses in supporting other child or persons whom they have a duty to maintain,
- the high costs involved in them spending time with or communicate with, another child or person they have a duty to maintain;
- A parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child support child.
The Registrar can only change the assessment if one or more of the 10 listed reasons is established as the special circumstances of the case. If a reason for a change of assessment is established, the Registrar must also consider whether changing the assessment would be just and equitable and otherwise proper.
The Registrar can retrospectively change a child support assessment and may change the assessment from any point up to 18 months prior to the date upon which the person lodged their change of assessment application.
If a parent wants the Registrar to consider changing the assessment retrospectively for a period of 18 months or more prior to the application, they can apply to the court for leave. The court may grant leave for the Registrar to change an assessment for up to 7 years prior to the day on which the person applied to the court for leave. Alternately, the court may grant leave and itself make an order to change the assessment for a period of up to 7 years prior to the day on which the application to the court was made.
How are applications made?
If you think that special circumstances make your child support assessment unfair, you can apply to the Registrar for a change to your child support assessment.
An application for a change of assessment must be made in writing by completing the form Application to Change Your Assessment – Special Circumstances. The form lists the 10 reasons that a person can use to make an application for a change of assessment.
The form must be lodged by mail, in person, by facsimile, or via the online platform. We are able to assist with the preparation of the form.
Registrar-initiated changes to assessments
Since 1 July 1999, the Registrar has had the power to initiate a change to a child support assessment where he or she believes that the income, property and financial resources or earning capacity of a parent is not accurately reflected in the assessment. This is called a Registrar-initiated change of assessment. The Registrar does not have the power to initiate a change to an assessment on the basis of any of the other reasons set out above.
The Registrar can initiate a prospective change to a child support assessment. They may also retrospectively change the assessment for up to 18 months before the date parties were notified of the proposed change. The Registrar is empowered to make an application to the court seeking leave pursuant to section 112 of the Act to make a retrospective determination that changes the assessment for a period of up to 7 years before the day upon which the application was made to the court for leave.
Can a child support assessment be changed after it has ended?
The Registrar can change an assessment decision for a child support period that has ended. However, the child support assessment for the child must still be in force on the day the application for the change of assessment is made.
Where the child support assessment has ended, for example, due to a terminating event, an application cannot be made for the Registrar for a change of assessment for a past period. In the event that a child support assessment has ended, an application can be made to the court to change the assessment decision pursuant to section 118 of the Act.
Applications to amend an assessment for a day in a child support period that is more than 18 months earlier are subject to leave being granted by the court.
What if a party dies during change of assessment proceedings?
If one parent dies during the change of assessment proceedings, the application may continue if the Registrar is satisfied that the deceased parent had a reasonable opportunity to provide relevant information in the proceeding.
If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.