The Legal Practitioner's Guide

6.2 Suggested draft terms

6.2.1 Section 106A declarations

Suggested draft terms

• That pursuant to section 106A of the Child Support (Assessment) Act 1989, [parent's name] should be assessed in respect of the costs of [child's name] because [parent's name] is a parent of [child's name].

Tips and problems

Section 106A declaration versus a parentage declaration
It is not sufficient for the order to state that the person from whom child support is sought is a parent of the child. This could serve as a form of proof of parentage under section 29(2)(c) but a new application would have to be made and child support would only be payable from the date of the new application.

Rather, the order should make a declaration that the person should be assessed in respect of the costs the child. CSA can then backdate the liability to the date that the application for child support was made (section 106(5)).

If the applicant obtains a declaration and only one of the reasons CSA refused the application for a child support assessment was because the applicant could not establish that a person should be assessed in respect of the costs of the child, CSA will reconsider the application under Division 2 of Part 4 (section 106A(2)(b)).

Multiple applications and multiple refusals
Over a period of time, a person may have several applications for administrative assessment refused due to the lack of evidence as to parentage. If at a later time the applicant gains a section 106A declaration, the CSA must give effect to it pursuant to section 106A(6) '...the Registrar is taken to have accepted the application for administrative assessment of child support.....'

Section 106A does not enable the court to specify the date from which the assessment will commence. Instead the effect of a declaration is to deem the Registrar to have accepted the previously refused application. Where there have been several refused applications, the CSA is faced with the issue of determining the correct start date. The parties may each have a different view on that issue.

Where several CSA refusal letters are annexed to the application, CSA will not know which one the court had regard to when making the declaration. The Family Law Rules (rule 4.18(1)) and the Federal Magistrates Court Rules 2001 [rule 25A.03] require applications for section 106A declarations to be accompanied by an affidavit, amongst other things, attaching a copy of any decision or notice that is relevant to the application. This should include the CSA refusal letter. If the applicant seeks a declaration in relation to the older of several CSA refusal decisions, those decision letters should also be attached.

Applications for section 106A declarations filed in the Federal Magistrates Court are required to be filed within 56 days of being served with the CSA decision letter (rule 25A.06). Applications filed in the Family Court must be filed within 60 days of being served with the CSA's refusal or acceptance decision letter (Family Law Rules, rule 4.20).

If an applicant seeks a section 106A declaration in relation to a CSA refusal that was made more than 60 days previously, they must apply for an extension of time to file out of time. If leave is granted and the declaration made, CSA will be satisfied that the declaration was made in relation to that CSA refusal decision.

Where multiple refusal letters are annexed to the application, it may be prudent to note in the pre-amble which refusal letter the court had regard to when making the declaration. This will enable the CSA to start the case from the correct date and will avoid any unnecessary disputes, including the possibility of returning the matter to court.

Parent may object
If a person is aggrieved with CSA's decision regarding the start date of liability they may object to that decision under Part 7 of the Registration and Collection Act.

6.2.2 Section 107 declarations

Suggested draft terms

• That pursuant to section 107 of the Child Support (Assessment) Act 1989, [person's name] should not be assessed in respect of the costs of [child's name] because [person's name] is not a parent of [child's name].

Note: it is not sufficient for the order to only state that the person is not a parent. A finding of parentage is the evidence which forms the basis of the court's declaration.

Tips and problems

How does CSA give effect to the declaration?
Orders should make a declaration that a person should not be assessed in respect of the costs of the child, because the person is not a parent of the child. This will result in the application for child support for that child being treated as if it had never been accepted (section 107(5)).

Applications for section 107 declarations are required to be filed in the Federal Magistrates Court within 56 days of 'the applicant' being served with the CSA decision letter (rule 25A.06). Applications for section 107 declarations must be filed in the Family Court within 60 days of 'the applicant' being served with the CSA's decision letter (Family Law Rules, rule 4.20). Section 143 provides a mechanism for the former payer to seek recovery of any child support paid during the period before the court makes a section 107 declaration.

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