2.6.1: When can CSA consider changing an assessment?

Context

The change of assessment in special circumstances provisions are in Part 6A of the Assessment Act. This topic explains when CSA can consider changing an assessment.

Legislative references

Sections 98B, 98D, 98K, 98S, 111 and 112 Child Support Assessment Act 1989.

Explanation

Administrative formula for child support assessments

Change of assessment application from the payer or payee

Period for which CSA can change the assessment

Deceased parents

CSA-initiated change of assessment

Can CSA change an assessment if the child support assessment has ended?

Administrative formula for child support assessments

CSA uses an administrative formula to make a child support assessment. The administrative formula is explained in chapter 2.4. However, if parents or children have special circumstances, the administrative formula may not provide a fair level of child support. Part 6A of the Assessment Act provides a means for CSA to administratively change a child support assessment in the special circumstances of a case.

The phrase 'special circumstances of the case' is not defined in the Assessment Act. The Family Court has held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary' (Gyselman and Gyselman (1992) FLC 92-279).

Change of assessment application from the payer or payee

If a person thinks that they have special circumstances that make their child support assessment unfair, they can apply to CSA for a change to their assessment (section 98B).

A change of assessment application must be made in writing (section 98D). A person can make a change of assessment application by completing a form 'Your Application: changing your child support assessment in special circumstances'. The form lists the 10 reasons that a person can use to make an application for a change of assessment. The form is available from CSA offices or on CSA's website at www.csa.gov.au. The form can be lodged with CSA by mail, in person or by facsimile. In order to make a valid change of assessment application, the person must complete and sign the form. If the applicant is a parent of the child for whom child support is payable, he or she must also complete the financial section of the application form.

Period for which the assessment can be changed

CSA can prospectively change the assessment of child support and may also make a determination changing the assessment for up to eighteen months prior to the date upon which the person lodges his or her change of assessment application with CSA (section 98S(3B)(a)).

If the person applying for a change of assessment wants CSA to consider changing the assessment for a period more than 18 months prior to his or her application, he or she can apply to a court under section 111 for leave. A court may grant leave for CSA to make a change to the assessment for up to seven years prior to the day on which the person applied to the court for leave (section 112(7)). A court may alternatively grant leave for the court to make an order to change the assessment for up to seven years prior to the day on which the application to the court was made, irrespective of what the person applied for under section 111 (section 112(3A)). (See chapter 4.3.2 for an application for amendment of administrative assessment that is more than 18 months old).

Deceased parents

If one party dies while the COA proceedings are underway, CSA may continue to deal with the application, as long as it is satisfied that the deceased parent had a reasonable opportunity to provide relevant information, or his or her representative can provide it on his or her behalf.

There are occasions where a payer or payee may wish to apply for a change of assessment after the other party to the case (i.e. the payee or the payer) has died. CSA can accept and deal with an application made by the surviving party, as long as the deceased party has an executor or administrator of his or her estate who can be given the opportunity to respond to the application.

Similarly, an executor or administrator of the estate of a deceased parent can apply for a change of assessment on the deceased parent's behalf.

CSA-initiated change of assessment

Since 1 July 1999 CSA has been able to initiate a change to a child support assessment where it believes that the income, earning capacity, property and financial resources of either parent is not accurately reflected in the assessment (Reason 8). This is called a 'CSA-initiated change of assessment', or Registrar-initiated change of assessment. CSA cannot initiate a change to an assessment on the basis of any of the other reasons that a payer or payee can use to apply for a change of assessment.

CSA can initiate a prospective change to the assessment of child support and may also make a retrospective determination to change the assessment for up to eighteen months prior to the date upon which it notified the payer and payee of the proposed change (section 98S(3B)(b)). CSA can apply to court for leave under section 112 to make a retrospective determination that changes the assessment for up to seven years prior to the day upon which it applies to the court for leave (section 111(3)).

Can CSA change an assessment if the child support assessment has ended?

CSA can make a change of assessment decision for a child support period that has ended. CSA can also make a change of assessment decision after the child support assessment has ended because a terminating event has occurred. In these ended cases, CSA will consider whether there is a reason to change the assessment that is in force in relation to the days before the terminating event. It is not necessary for there to be arrears of child support on the case.

CSA will treat a change of assessment application for a child support period that has ended, or a liability that has ended, in the same way as a change of assessment application for a current child support period.

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Version 1.6

Issued 3 August 2007

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