Effective until 30 June 2008
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| CSA's previous online law & policy guide Effective until 30 June 2008 |
4.3.3: Implementing court orders made under the child support legislationContext When CSA is notified of an order that affects an assessment it must take any action necessary to amend the child support assessment to give effect to the order. This section explains how CSA gives effect to specific kinds of court orders. Legislative reference Sections 108, 113, 119, 127, 138 and 142 Child Support (Assessment) Act 1989 Part VIIIB Child Support (Registration and Collection) Act 1988 Explanation When a court's decision under the child support legislation becomes final, CSA must take any action necessary to amend the child support assessment to give effect to the order. However, CSA's policy is to give effect to a court order as soon as possible after it is notified of the provisions of the court order, without waiting for the order to become final. If the order is changed following an appeal, CSA will amend the child support assessment again to reflect the terms of the later order. When court orders become final An order of a single Judge or Magistrate becomes final at the end of the period allowed by the court rules for appealing against that to a higher court. This is usually 28 days. An order of the full bench of the Family Court will become final 30 days after it is made unless an application is made to the High Court for special leave to appeal. This section explains how CSA gives effect to specific kinds of court orders, including
The section also discusses
An order may say that a parent must pay a periodic amount but not state that whether the order is made under the Assessment Act or if it is an order for a change to the assessment. CSA will interpret such orders as orders to change the assessment unless there is an indication to the contrary. If there is a heading on the order that suggests it is made under the provisions of the Family Law Act the case officer should obtain a copy of the application to check whether the applicant applied for a departure order. CSA will give effect to an order for a change to the assessment even if it has not made a decision on an application for change of assessment in the case and/or a decision on an objection to a decision to refuse or change the assessment or is not aware of any SSAT review of an objection decision. CSA will accept, without further investigation,that the court has acted correctly in making the order (unless there is any further order stating that the order is invalid or cannot be enforced). The court may have been considering other matters such as a property settlement and so it was not necessary for the parent concerned to seek a departure from the assessments by making an application to CSA, to object to an earlier decision under Part 6A of the Assessment Act or to seek SSAT review. Orders reducing the assessment to nil CSA cannot make a change of assessment decision which has the effect of reducing the annual rate of child support below the minimum annual rate for that period (section 98SA). However, the court may make such orders and CSA will give effect to them (section 66B). An order to reduce arrears under the Assessment Act A departure order or agreement may purport to discharge arrears where an assessment has been made under the Assessment Act. The child support legislation does not expressly provide for arrears to be discharged but CSA will give effect to these orders and agreements where possible by varying the rate of child support for a specified period. To avoid any uncertainty a departure order or agreement which seeks to discharge arrears should set the rate of child support for the period equal to the amount which has already been paid. Orders varying, setting aside or nullifying a particular order The Assessment Act does not provide for a parent to apply to have a previous court order varied or set aside. However, the same effect can be obtained by applying for a change to the assessment. If a court makes such an order CSA will interpret it to be an order to change the child support assessment and make appropriate amendments to the assessment. If a court makes an order that nullifies an earlier order this means that the earlier order should not have been made and has no legal effect. CSA will amend the assessment as if the earlier order had not been made. If CSA cannot give effect to an order it must advise the parents and, if appropriate, their legal representatives. They must also be advised that they have the right to object under Part VII of the Registration and Collection Act if they consider that the particulars of their assessment are incorrect because CSA did not give effect to the order. Severability of clauses in an order An agreement or court order that contains clauses that can be accepted or registered under the child support legislation may also contain clauses that cannot be accepted or registered under the legislation. The clauses that could normally be registered or accepted cannot be registered or accepted if doing so, without registering the other clauses, would change their meaning or change the essential nature of the order or agreement. They are said to be 'not severable' from the other clauses and the application for acceptance or registration of the entire order or agreement must be refused. CSA will advise both parents if there are clauses which cannot be accepted or registered and discuss alternative options. End dates of orders to change the assessment An order changing the assessment has effect until:
Effect of an agreement on an order to change the assessment When CSA accepts a child support agreement, that agreement has the same effect as a new court order and can replace or otherwise affect an existing court order Terminating events and change of assessment orders A terminating event may happen in relation to all or some of the children covered by the assessment subject to a court order that changes the assessment. The order ceases to be in force as of the date of the terminating event (section 142 of the Assessment Act; section 111H of the Registration and Collection Act). The order will remain in force for any child not affected by the terminating event. If a payee reapplies for an administrative assessment after a terminating event (for example, because a child who had left their care later returns to their care) CSA will use the formula and not the change of assessment order when it makes a new assessment for the child for whom the assessment ended. Where a change of assessment order is in force that covers only some of the children of the relationship, or where the order has ceased to be in force for some of the children, CSA will make a 'mixed assessment'. Some of the children will be assessed in accordance with the departure order and others in accordance with the child support formula, as appropriate. Setting a rate of child support for more than one child Ideally a court order that sets a rate of child support for more than one child will state how much is payable for each of the children. In the absence of such a statement CSA cannot apportion the amount between the children. CSA's assessment will continue to reflect the full amount payable under the order when a terminating event happens in relation to one or more of the children. Court orders and agreements can suspend or reduce the liability when a parent is unemployed. Where a clause is ambiguous or uncertain CSA will discuss the problem with both parents to try to obtain agreement about the intention of the clause. If the parents are unable to agree on the intention of the clause CSA will take the following issues into account when it interprets the court order. For the liability to be varied when a parent becomes unemployed CSA must be able to determine the person's employment status. CSA will accept that a parent is unemployed if they receive a benefit or pension from Centrelink, in the absence of any evidence to the contrary. Where the parent does not receive benefit or pension, CSA will consider statements made by the parent and documentary evidence such as a certificate of separation. Many court orders and agreements allow for a reduced liability during periods when a parent is 'in receipt of unemployment benefits'. A difficulty arises when a parent is not employed but is not receiving an unemployment benefit, or is receiving another type of benefit. A broad interpretation will be given to the term 'unemployment benefits'. CSA may apply such a clause where the person is receiving a Centrelink benefit or pension as a result of not being in employment (e.g. Disability Support pension or Sickness Allowance). However, if a parent is receiving benefits but their employment hasn't been terminated the parent is still employed. A parent may be unable to work because of a work related injury, and receive periodic compensation payments. CSA will determine if the parent is still employed by their employer. If the employment contract has been terminated CSA will accept that the person is 'unemployed' despite being in receipt of payments which may be greater than those payable to unemployed welfare beneficiaries. A court can make an order that varied a parent's liability in a current period of unemployment, or one that applies during any period of unemployment. Example 'The amount payable is to be reduced to $10 per week until F
gains full-time employment' applies to F's current period of unemployment.
'The amount payable is to be reduced to $10 per week during periods when F is not in full-time employment' applies whenever F is unemployed after the date of the order. Orders and agreements sometimes contain a provision providing for a reduction in child support payable if the child is self-supporting. Where a clause is ambiguous or uncertain CSA will discuss the problem with both parents to obtain agreement about the intention of the clause if possible. If the parents are unable to agree on the intention of the clause CSA will interpret the clause in the following way. CSA must be satisfied that the child is, in fact, supporting themself. CSA will not consider whether or not the child is capable of being self-supporting or should be self-supporting (although this may provide a reason for a change of assessment in appropriate cases). In determining whether a child is self-supporting CSA will determine the child's actual income and whether the child is paying for his or her basic living expenses without financial support from another person. Basic living expenses include accommodation, food, household utilities and transport costs. CSA will disregard social security payments the child is receiving except where the child is not living with the payee. If the child is also making lifestyle choices which would not be available without an independent source of income (for example, buying a car), the child is more likely to be self supporting. If the child is living away from home CSA will consider whether the payee continues to have care and control of the child or whether the child is living independently from the payee and meeting their own costs. CSA will consider whether there has been a terminating event. If the child continues to live with the payee, they will be self supporting if they pay a reasonable contribution towards household expenses including accommodation, utilities and food and groceries or if they pay board equal to this amount to the payee. If the child is living with the payee but is not contributing towards those household expenses or is making a nominal contribution only CSA will find that the child is not self-supporting. Children in full-time education Orders sometimes state that they are to operate until a child ceases to be in full-time education or until they finish a particular level of education such as secondary schooling. Where a clause is ambiguous or uncertain CSA will discuss the problem with both parents to try to obtain agreement about the intention of the clause. If the parents are unable to agree on the intention of the clause CSA will consider the following issues when it interprets the clause. Some institutions such as TAFE offer a range of courses from secondary education to vocational training and higher education courses. Tertiary education involves a distinct qualification, a certificate, diploma or degree, rather than matriculation or vocational training. CSA will ask for evidence from the payee about the child's student status. If the child is still at school CSA will find that the child is in full-time education. If the child has finished school and is studying at an institution that considers the child as a full-time student, CSA will generally accept that the child is in full-time education. Orders and notations An order for a change to the assessment made by consent under Part 7 of the Assessment Act can sometimes contain notations, notes or annotations to draw attention to actions the parents have taken or will take in the future. Whilst a notation can indicate the parents' intentions they are not orders and cannot be registered or vary an assessment. Version 1.3 Issued 1 January 2007 |
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