4.3.2: Applications and orders about decisions under the Assessment Act

Context

A parent may apply to a court for a range of court orders about child support assessments and decisions made under the Assessment Act.

Legislative references

Part 7 Child Support (Assessment) Act 1989

Parts VIII, VIIIA and VIIIB Child Support (Registration and Collection) Act 1988

Division 4.2.5, Rule 4.23 Family Law Rules 2004

Explanation

The Assessment Act allows parents to apply directly to a court with family law jurisdiction for a range of orders. In other cases, a parent must use CSA's objections process and seek a review of the objection decision by the Social Security Appeals Tribunal before they can appeal to a court.

The parties to court proceedings under the Assessment Act are the payer and payee. However, CSA must be served with a copy of any application or appeal (Division 4.2.5, Rule 4.23, Family Law Rules 2004 ). CSA may intervene in any court proceedings under the Assessment Act (section 145). If CSA intervenes, it is taken to be a party and has all the rights, duties and obligations of a party to the proceedings.

Parents can make the following court applications under the Assessment Act.

• A payee can apply for a declaration that they are entitled to an administrative assessment after CSA refuses their application because of lack of proof of parentage (section 106A);
• A liable parent can apply for a declaration that they are entitled to an administrative assessment after CSA refuses their application because of lack of proof of parentage (section 106B); 
• A payer can apply for a declaration that the payee is not entitled to an assessment of child support payable by them because the payer is not a parent of the child (section 107);
• A liable parent can apply for a declaration that they are not entitled to an assessment of child support payable by them because they are not a parent of the child (section 107A); 
• An application for a change to a child support assessment because of special circumstances (section 116), where the parents have other family law matters in the court or where CSA has made a decision, or an objection decision, or the SSAT has made a decision, that the matters are too complex for a decision under Part 6A of the Assessment Act;
• An application for leave for CSA or a court to make a change of assessment decision in relation to an administrative assessment for a period that is more than eighteen months ago (sections 111 and 112);
• An application for an order for child support to be provided in a form other than periodic amounts (section 123);
• An application to have a court set aside a child support agreement (section 136);
• An application for an urgent maintenance order (section 139); and
• An order that a payee refunds an amount of money paid as child support where no liability to pay child support existed (section 143).

A parent can apply for a stay order under section 111C of the Registration and Collection Act pending CSA's decision on a change of assessment application, or pending court proceedings under the Assessment Act.Parents can also appeal to a court, on a question of law, if they are dissatisfied with a decision of the SSAT in relation to a decision under the Assessment Act. See Chapter 4.2.5 The SSAT review process.

Declaration that a carer parent (s106A) or a liable parent (s106B) is entitled to a child support assessment

If CSA refuses a carer parent or liable parent's application for a child support assessment, and one of the reasons was that CSA could not be satisfied that the person named was a parent of the child, they can apply to a court for a declaration that they are entitled to an assessment of child support. The person that the payee named as the payer is the respondent to the payee's court application and the person that the payer named as the payee is the respondent to the payer's court application. CSA is not a party to the court application unless it decides to intervene in the proceedings.

Effect of a section 106A declaration

If the court makes a declaration under section 106A or section 106B and the only reason for refusal of the application for child support was the lack of proof of parentage, CSA is taken to have accepted the application for an administrative assessment with effect from the date that CSA (or Centrelink) originally received the application. If there were other reasons for refusal of the application CSA has to reconsider the application.

A court may make a section 106A or a section 106B declaration in a case where CSA has refused more than one child support application. CSA will establish which child support application is cited in the court application. CSA will examine the court application if this is not apparent from the declaration. CSA's administrative assessment will start from the date that CSA (or Centrelink) received the child support application cited in the court application.

Declaration of parentage - section 106A declaration or section 106B declaration

CSA will not accept a declaration that is not clearly made under section 106A or section 106B. The court order must state that it is made under section 106A or section 106B and/or that the applicant is entitled to an assessment of child support. It is not sufficient for the court to declare that a person is the father of the child. However, an order, such as a parentage order under section 69VA of the Family Law Act can be used as a form of proof of parentage for section 29(2)(c) of the Assessment Act. See 2.2.4 Parentage and 4.3.4 Family Law Act orders affecting a child support assessment.

Declaration that a carer parent (section 107) or liable parent (section 107A) is not entitled to a child support assessment

A payer may apply to a court for a declaration that the payee is not entitled to an assessment of child support payable by them if they believe that they are not a parent of the child concerned. The payee is the respondent to the payer's court application. CSA is not a party to the court application unless it decides to intervene in the proceedings.

A payer cannot apply for a declaration under section 107 or section 107A if a court has already declared under section 106A or section 106B (see above) that the applicant is entitled to a child support assessment (sub-section 107(1A) and sub-section 107A(2)).

Payments of child support pending the application

Where child support is collected by CSA it will continue to collect child support from a payer who makes an application to a court for a declaration under section 107, but will suspend the payment of child support to the payee for that particular child until the court deals with the application. (See chapter 5.5, heading Suspending payments to payees)

A payer can also apply to the court for a stay order.

Effect of a section 107 or section 107A declaration

If a court makes a declaration under section 107 or section 107A, CSA is taken never to have accepted the payee's application for child support for that child. CSA will end the administrative assessment for that particular child from the start date.

CSA will refund to the payer any payments held because of a suspension determination (See chapter 5.5, heading Suspending payments to payees). CSA will not repay any amounts already disbursed to the payee.

Section 107(6) and section 107A(7) of the Assessment Act says that the court must consider making an order under section 143 of the Assessment Act for recovery of any overpaid child support as soon as practicable after making a declaration under section 107 or section 107A of the Assessment Act. See Chapter 3.2.6 Parentage overpayment orders.

Application for leave to make a change of assessment decision in relation to an administrative assessment for a period that is more than eighteen months ago (sections 111 and 112)

A court may grant leave under section 112 for:

• CSA to make a retrospective change of assessment decision; or
• a court to make a retrospective departure decision under section 116;

which would change the assessment of child support payable for a day that is more than eighteen months before the date upon which an application for leave was made to the court under section 111. The court cannot grant leave to change an assessment for a day that is more than seven years before the date of the application under section 111 (section 112(7)(a)).

Application by the payer or payee for leave

The payer or payee can apply to the court for leave if they wish to make a change of assessment application to CSA in relation to an administrative assessment for a period that is more than eighteen months ago (section 111(1)(a)). See Chapter 2.6.5 for more information on the change of assessment process.

The court must take into account the matters listed in section 111(4) and may have regard to any other relevant matter when deciding whether to grant leave (section 111(5)).

If the court grants leave, it will make an order specifying the period for which the court or CSA may change the assessment (section 111(6)). However, the order does not require the CSA or the court to make a change for the specified period (section 111(8)).

If the court considers that it would be in the interests of the parties for the court to deal with the application for a change of assessment, rather than have a parent apply to the CSA for a change of assessment, the applicant for leave is taken to have made an application to the court under section 116.

The parties to the application are the payer and payee (section 112(2)), although CSA can choose to intervene in the proceedings (section 145).

Application by CSA for leave

CSA can apply to the court for leave to make a CSA-initiated change of assessment decision in relation to an administrative assessment for a period that is more than eighteen months ago (section 111(3)).

If CSA applies to the court for leave, the parties to the application are the payer, the payee and CSA (section 111(4)).

When dealing with an application from CSA for leave, the court must take into account the same matters that that it considers when it deals with an application from the payer or payee. The types of orders the court can make are the same, regardless of who makes the application for leave.

Application for a change to a child support assessment in special circumstances (section 116)

A parent can apply for a change to their child support assessment if one or more of a specified range of special circumstances apply to them, their children or the other parent. These special circumstances are the same as the reasons for an application to CSA for a change of assessment (COA).

When can a parent apply to court for a change of assessment?

In most cases, a parent must first apply to CSA for a change of assessment. A parent may apply direct to a court for a change to their child support assessment in the following circumstances.

• They want the court to reduce their minimum child support assessment to nil; or
• They have another matter before the court and the court is satisfied that it should consider the matters together; or
• CSA has, under section 98E or 98R, refused to make a determination under Part 6A of the Assessment Act as the issues raised are too complex and an objection to that decision has been disallowed; or
• In making a decision on an objection to a determination under Part 6A of the Assessment Act, the CSA has, under section 98E or 98R, refused to make a determination as the issues raised are too complex; or
• The SSAT has, under section 98E or 98R, refused to make a determination under Part 6A as the issues raised are too complex.

Parties to the court application

The parties to the application are the payer and payee in the case. CSA is not a party unless it decides to intervene in the court proceedings (section 145).

When dealing with the application, the court does not consider whether CSA's decision on the application to change the assessment and objection was correct. The court will decide whether there is a reason to change the administrative assessment made in accordance with CSA's decision and, if so, whether it is fair and proper to do so.

Payments of child support pending the application

CSA's assessment of child support continues to apply while the court deals with a parent's application. CSA will continue to collect child support payable under the assessment.

A parent can apply to the court for a stay order.

Application for child support to be paid in a form other than periodic amounts (section 123)

A parent may apply for child support to be paid otherwise than by periodic payment. Commonly, a payee will apply for an order requiring the payer to make payments of school fees or to pay child support in a lump sum in substitution for the periodic liability.

How the order affects the child support assessment

When a court makes an order for child support to be in a form other than periodic amounts, it should also specify how the payment is to be credited against any ongoing child support assessment.

The order may state that:

• payments under the order will be credited against the ongoing child support assessment for a specified period
• payments under the order will reduce the ongoing child support assessment by a certain percentage or a specific amount
• payments under the order will not affect the ongoing child support assessment.

If the court does not specify how the order will affect the ongoing liability, this does not mean that the order is invalid. CSA will assume that the ongoing liability will continue in accordance with the assessment and make future assessments as required.

Payees who receive Centrelink payments

If the payee receives a Centrelink payment they may apply for the assessment not to be reduced by more than 25% because of the court order. CSA must work out whether the parent would continue to receive the payment if the assessment was reduced by no more than 25%. If so, the Registrar will amend the assessment so it is reduced by only 25%.

An application to have a court set aside an agreement (section 136).

A parent can apply to a court to have a child support agreement set aside if they entered into the agreement because of fraud or undue influence. The parties to the application are the payer and payee in the case. CSA is not a party to the appeal unless it decides to intervene in the court proceedings (section 145).

If a court sets aside the agreement it can make consequential orders to preserve or adjust the rights of the child or the parents.

Urgent maintenance orders (section 139)

If a carer has made an application for a child support assessment they can also apply to a court for urgent financial assistance from the person from whom they seek child support. The court can make an order for payment of a periodic or other amount even if CSA has refused to accept the application.

An urgent maintenance order has effect for the period specified in the order. However, if a child support application is later accepted or refused the urgent maintenance order ceases to have effect once:

• child support becomes payable for the child under an administrative assessment (the liability under the urgent maintenance order will end from the start date of liability of the assessment); or
• CSA's decision to refuse an application for assessment becomes final because the period within which an application could be made to a court under section 106A or section 106B, or to the Social Security Appeals Tribunal, or the period within which an appeal could be made to a court, has ended and an application has not been made to a court or the SSAT; or
• the decision of a court or the SSAT that the person was not entitled to an administrative assessment becomes final.

Stay orders pending a court application

A parent can apply to a court for an order under section 111C of the Registration and Collection Act that stays or otherwise affects the operation of the Assessment Act or the Registration and Collection Act until the outcome of court proceedings.

If the court grants the application and makes a stay order the assessment will be amended to give effect to the order.

Stay orders pending a change of assessment decision

A parent can apply to a court for an order under section 111C of the Registration and Collection Act staying or otherwise affecting the operation of the Assessment Act or the Registration and Collection Act until CSA has made a decision on an application to change their child support assessment. Once CSA has made its decision on the application, the stay order will cease to have effect. (See 4.3.6 Applications, appeals and court orders under the Registration and Collection Act for information about stay orders that can be made whilst any objection is considered or an SSAT review or court appeal is in progress.)

An order that a payee refunds an amount of money paid as child support where no liability to pay child support existed (section 143)

Section 143 of the Child Support (Assessment) Act 1989 (the Assessment Act) gives a court discretion to make an order for recovery of an overpayment of a child support assessment. The court may make such orders as it considers just and equitable to give effect to, or to adjust, the rights of the payer and payee concerned. More information about this kind of order is contained in chapter 3.2.6 Parentage overpayment orders.

Other Powers of the Court

A court may dismiss a proceeding under the Assessment Act if it is satisfied that the proceeding is frivolous or vexatious (section 143B).

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Version 1.5

Issued 1 January 2008

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