1.6.2: Australian child support assessments for overseas cases

Context

An Australian child support assessment can be made for cases where the payer or the payee and children are overseas if certain requirements are met.

Legislative references

Sections 12, 24, 25, 25A, 30A, 30B, 39, 54, 58A, 58B, 58C, 142, 162A, Child Support (Assessment) Act 1989

Section 18A, 81, 86, 90, Child Support (Registration and Collection) Act 1988

Regulations 5, 11C Child Support (Assessment) Regulations 1989

Regulation 2, Child (Registration and Collection) Regulations 1988

Explanation

New applications for child support assessments

Terminating events

Ongoing child support assessments

New applications for child support assessments

Payer overseas; payee and children in Australia

A payee in Australia can apply for a child support assessment if the payer is a resident of a reciprocating jurisdiction on the day they make the application (section 25(2)(b)(ii) Assessment Act), except if it is one of the excluded jurisdictions (i.e. Brunei Darussalam, Cook Islands, Israel, Niue, Papua New Guinea, the Yukon Territory of Canada and Samoa (regulation 5). A payee must obtain a court order for child maintenance if the payer resides in an excluded jurisdiction.

A payer resident in a reciprocating jurisdiction (except if it is one of the excluded jurisdictions) can apply for a child support assessment if they are seeking to pay child support to a payee who is resident in Australia (section 25A(3)(b)). The application must be made either directly to the Registrar or through the overseas authority of the reciprocating jurisdiction (section 25A(4)).

Payee and children overseas; payer in Australia

A payee in a reciprocating jurisdiction can apply for a child support assessment if they are seeking child support from a payer who is a resident of Australia (section 25(2)(b)(ii)). The application must be made by the overseas authority on behalf of the payee or made by the payee and given to the Registrar by the overseas authority (section 25(4) Assessment Act). A payee resident in a reciprocating jurisdiction cannot apply directly to the Registrar. (See chapter 2.2 eligible child).

A payer in Australia can apply for a child support assessment if they are seeking to pay child support to a payee who is overseas. However, a payer cannot apply for a child support assessment for a child who is not present in Australia and is not an Australian citizen (section 24(1)(b) Assessment Act).

Refusal of application for a child support assessment

An application for a child support assessment made by either a payer or a payee may be refused if an overseas liability is already registered for the same case and one of the parties is a resident of a reciprocating jurisdiction (section 30B Assessment Act).

CSA will exercise this discretion when the liability that is already registered was made in the jurisdiction in which the payee resides and it would be unreasonable to allow a child support assessment to override that liability.

Terminating events

Effect of a child support assessment on a registered overseas maintenance liability

CSA may have already registered an overseas maintenance liability for a particular payer, payee and child(ren). This overseas liability ceases to have effect if CSA subsequently makes a child support assessment for the same payer, payee and child(ren) and registers that assessment for collection (section 12(1)(g) Assessment Act). Any arrears payable under the previous liability are still payable (section 30AA(2) Registration & Collection Act).

Payee and child go overseas

A child support assessment ends when a child leaves Australia and is no longer an Australian citizen or ordinarily resident in Australia (section 12(1)(f) Assessment Act). However, the child support assessment continues if the child is living in a reciprocating jurisdiction (section 12(4A)(a) Assessment Act).

There is an exception when the payee is habitually resident in New Zealand. This is a terminating event and the child support assessment ends. (Section 150DA Assessment Act and Regulation 9A Assessment Regulations).

Payer goes overseas

A child support assessment ends when a payer ceases to be a resident of Australia or a reciprocating jurisdiction (section 12(3) & (3A) Assessment Act) (See chapter 1.5). A child support assessment also ends if the payer becomes a resident of one of the excluded jurisdictions (i.e. Brunei Darussalam, Cook Islands, Israel, Niue, Papua New Guinea, the Yukon Territory of Canada and Samoa) (section 12(3B)).

If a payer ceases to be a resident of Australia, but immediately becomes a resident of a reciprocating jurisdiction, the child support assessment does not cease (section 12(4A)(b)). If the child support assessment is affected by a court order made under the Assessment Act, that order continues to be in force (section 142(1A)).

Payer and payee both go overseas

A child support assessment ends when both the payer and payee cease to be residents of Australia (section 12(4B) Assessment Act.) This applies even if they both reside in a reciprocating jurisdiction.

Ongoing child support assessments

Income

CSA will include a parent's overseas income in their child support income when it makes or amends a child support assessment (section 58A Assessment Act). If a parent living overseas elects to have their child support assessment based upon an estimate of their income, they must include their overseas income in the estimate.

Default incomes

CSA can request a person to provide information about their income (section 162A Assessment Act). CSA can decide a default income amount for the person if it cannot ascertain their income from information or documents in its possession (section 58C).

Where a parent lives in a reciprocating jurisdiction CSA can request the overseas authority to provide income information about the parent, where they are able to do so (section 162A Assessment Act). CSA will amend the child support assessment once it receives this information (section 58B).

CSA takes account of overseas assessments when making a child support assessment

If a payer has an administrative assessment in a reciprocating jurisdiction for another child or children, CSA will take into account those children in working out the total number of children for whom the payer is liable to pay child support (section 54(1)(b) Assessment Act).

Giving notice and other communications

CSA can give notice or any other communication for a payer or payee in a reciprocating jurisdiction to the relevant overseas authority if that is considered desirable or appropriate (regulation 11C Assessment Regulations).

Period for notice

Relevant dependent child

If the payer is a resident of a reciprocating jurisdiction CSA can include a payer's relevant dependent child in a child support assessment from the date the child became the payer's relevant dependant if the payer notifies CSA within 90 days (instead of 28 days) of that event (section 39(3A) Assessment Act).

Similarly, if the payer is a resident of a reciprocating jurisdiction CSA can include a payer's relevant dependent child in a child support assessment from the date it sent the payer notice of the assessment if the payer notifies CSA within 90 days (instead of 28 days) of the notice (section 39(3A) Assessment Act).

Notice of specified events

If CSA gives a person in a reciprocating jurisdiction a written notice requiring them to advise when a specified event occurs, the person has 60 days from the event to advise CSA (section 162A(2) Assessment Act).

Notice requiring information

If CSA requires a person in a reciprocating jurisdiction to provide information, CSA must allow the person at least 28 days to do so (section 162A(5)).

Objections timeframes

If the person objecting is a resident of a reciprocating jurisdiction the period for a parent to object to a decision under the Assessment Act is extended to 90 days (instead of 28 days) (section 81(3) Registration & Collection Act). The person resident in Australia has 28 days to object to a decision.

Similarly, if the person responding to an objection is a resident of a reciprocating jurisdiction, they have 90 days (instead of 28 days) to provide a notice in response to an objection. (section 86(2) Registration & Collection Act.) The person resident in Australia has 28 days to respond to the objection.

SSAT appeal timeframes

If the person appealing is a resident of a reciprocating jurisdiction the period for a person to lodge an application for review is 90 days (instead of 28 days) (section 90(2)). The person resident in Australia has 28 days.

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Version 1.5

Issued 27 July 2007

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