The Legal Practitioner's Guide
6. Court orders about parentage/step-children
6.1 Summary
Parents can apply for court orders which affect a child support assessment in ways other than
departure orders or orders for lump sums or payments to third parties.
6.1.1 Parentage
CSA will be satisfied that a person is a parent of a child if the application is supported
with evidence of a type found in section 29(2) of the Child Support (Assessment) Act 1989.
If an applicant cannot demonstrate that a putative parent is the biological parent of a
child, the CSA may refuse to make the assessment (section 30). Likewise, if a person is found
to be the biological parent of a child because one of the presumptions in section 29(2) is
satisfied, the CSA will accept the application for assessment.
Division 2 of Part 7 of the Assessment Act makes provision for challenging CSA's acceptance or
refusal of an application for child support in a court exercising family law jurisdiction. An
unsuccessful applicant for a child support assessment can seek a court's declaration that a
person should be assessed in respect of the costs of a particular child or children (this
replaces the provision for declarations that a person is entitled to administrative assessment
– section 106A). A person assessed in respect of the costs of a child can seek a court
declaration which states that they are not liable to be assessed in respect of the costs of
the child (section 107).
These declarations under the Assessment Act are usually sought where there is a dispute about
a child's parentage. Either:
-
the unsuccessful applicant cannot establish that a person who would, if the application
were successful, be assessed in respect of the costs of the child is the child's parent;
or
-
the person who has been so assessed believes that he or she is not a parent of the child
for whom the assessment was made.
The proceedings often involve the court making orders for scientific testing in order to
determine whether or not a person is a parent of a child.
If the court makes a section 107 declaration, the court must also consider making an order
under section 143 for recovery of the amounts paid.
6.1.2 CSA will hold money pending a section 107 application
Where a section 107 application is filed and a copy of that application is served on the CSA,
CSA will make a 'suspension determination' under section 79A Child Support (Registration
and Collection) Act 1988. This means that the CSA will continue to collect the assessed
child support but will not disburse it to the payee pending the outcome of the application. If
the section 107 declaration is made, CSA will refund those monies to the payer and if the
application is unsuccessful, the monies will be disbursed to the payee.
Note: it is imperative that CSA be made aware of the proceedings by ensuring that a copy of the
application is served upon the CSA.
A 'suspension determination' under section 79A of the Registration and Collection Act will
obviate most applications for stay orders. If a payer cannot afford to pay the child support
pending the section 107 application, CSA can only cease (or reduce) collection if the payer
gains an appropriate stay order under section 111C of the Registration and Collection Act (see
Chapter 7).
6.1.3 Step-children
Under the Assessment Act a person who has care of a step-child is generally not able to have
their child support assessment for other children altered on that basis unless the court has
made an order under section 66M of the Family Law Act 1975 in relation to the person
and the step-child. If an order has been made under section 66M, and the other requirements of
the definition of 'relevant dependent child' are satisfied, CSA can take the step-child into
account as a 'relevant dependent child' in making a child support assessment. If these other
requirements are not satisfied, the person can apply for a departure from the formula on the
grounds that they have a legal duty to support another child.
In most child support cases, it is not possible to gain an order under section 66M of the
Family Law Act 1975 because the necessary legal pre-requisites for making the order
do not prevail (see 6.2.4 for more detailed information).
Note: from 1 July 2008, a new ground exists to depart from a formula assessment where a
parent's capacity to provide financial support for their child support child is significantly
reduced because of their responsibility to maintain a 'resident child' of the parent
(section 117(2)(aa)). Section 117(10) defines 'resident child'.
Whilst applications for section 66M orders are not common, it is anticipated that the use of
this new provision will result in even fewer section 66M applications.