The Legal Practitioner's Guide
4.4 Drafting court orders and agreements
4.4.1 General tips and problems
Stating the period covered
It is best to specify the actual dates of the
period to which the order or agreement applies, rather than using terms such as a child support
year' or child support period'.
If no start date is specified, the order or agreement has effect from the date it was made
(see sections 34B, 93, 94 and 95, of the Assessment Act).
If no end date is specified, the order or agreement will continue to have effect until there
is a terminating event (section 12, Assessment Act) for one of the parents or the child.
What happens when the order or agreement expires?
CSA will use the child
support formula to calculate the rate of child support payable for the days after the order or
agreement ends. For cases that started because of an agreement, a parent (or non-parent carer)
may need to apply for an administrative assessment.
Limited child support agreements must be for at least formula value
CSA cannot accept a limited agreement (ie. without the parents' seeking legal advice) unless
the total agreed amount is at least the amount payable under the existing formula or departure
assessment.
Family Tax Benefit assessed as though the agreement had not been made
After 1 July 2008, where the payee receives Family Tax Benefit (Part A), the Benefit will be
assessed on the notional amount of child support that would have been paid under the formula
assessment. It will not be assessed on the amount of child support payable under the agreement.
This applies equally to binding and limited agreements.
For more information refer to the Family Assistance Guide published on the website of
the Department of Families, Housing, Community Services and Indigenous Affairs at
www.fahcsia.gov.au (refer to chapter 3.1.6.50 Child
Support Agreements', after 1 July 2008).
Note that where child support is payable according to a court order (including an order by
consent) rather than an agreement, entitlement to Family Tax Benefit is assessed on the actual
child support payable under the order, rather than using a notional assessment, as the court
considers Family Assistance implications before it makes an order to depart from the assessment
(section 117(5), Assessment Act).
Can CSA change the rate of child support set by an order or agreement?
CSA is obliged to give effect to an order or accepted child support agreement whenever it makes
a child support assessment (section 34B, 94(2) and 119). This means that where an order or
agreement fixes child support at an annual rate, CSA cannot change it to a different annual
rate for the period covered by that order or agreement even if a party's circumstances change,
except in line with clauses contained in the agreement. The parents will need to make a new
child support agreement, or obtain a court order to change the rate of child support. An order
that varies one (or more) of the formula components allows more flexibility (see 4.4.3), as the
other components can usually be varied administratively.
Changes in care
It should also be noted that the definitions of a child
support case and terminating event have changed (eg. a child moving from the care of one parent
to the care of another parent is no longer a terminating event, see chapter 1.2). It may
therefore be desirable to specify in agreements that certain clauses do not apply where the
care of the child changes by more than a certain amount. For example, if John has 0% care and
agrees to pay the formula assessment plus school fees, and then circumstances change such that
John has 100% care, depending on the wording of the agreement, John may still be required to
pay the other parent the value of the school fees.
It may also be desirable for an agreement to contain a clause that ends the agreement if care
changes by more than a certain percentage, since the agreement may no longer be appropriate in
such circumstances.