In the Best Interests of Children - Reforming the Child Support Scheme 

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12. Change of Assessment 

12.1 The current change of assessment process and reasons


Any child support scheme based on a formula that is of general application needs to have the flexibility to deal with situations where the formula may operate unfairly due to particular circumstances. The Australian Child Support Scheme has such a process. It is called ‘change of assessment’. Primarily, these cases are considered at an administrative level. However, a few cases are dealt with directly by the courts when there are proceedings involving other family law issues as well. Other cases go to the courts when a parent is dissatisfied with the outcome from the administrative process.

Change of assessment provides a discretionary means of addressing a parent’s individual special circumstances, where an existing formula assessment does not produce a result that a parent considers to be fair. With the exception of Registrar-initiated change of assessment, the application for the change is made by an individual parent, and the parent is responsible for providing information to show that there is reason for a change. The decision-maker must also be satisfied that the change is fair and appropriate in the circumstances.

The assessment may only be changed under this process on the basis of specifi ed grounds or ‘reasons’. These grounds are set out in the relevant legislation, and are relatively narrow in scope. A parent applies for a change of assessment to the Child Support Agency (CSA), providing information about the reasons for which he or she seeks the change. The information is sent to the other parent who has the opportunity to provide a written response. Senior Case Officers (either CSA staff or offi cers contracted to CSA) consider the application, including conducting a conference with each of the parents. If the Senior Case Officer (SCO) approves a change of assessment, it is essentially because in the circumstances, the formula does not produce a fair result. The decision is ultimately restricted by broad considerations relating to what is fair to all the parties and the child in the special circumstances, and the public policy objectives of the Act.221

If the SCO determines that a change is appropriate, he or she can essentially vary or remove any of the formula components, with the exception of the imposition and level of the minimum liability.222 The SCO’s determination substitutes an individualised assessment, in some cases effected by creating an individualised formula. The formula component varied will depend upon procedural policies as to the best way to refl ect the desired outcome in the individual circumstances, while avoiding restricting the parent’s future administrative options.223

Once the CSA has made a change of assessment, a dissatisfied parent must then object, before being free to apply to a court for a fresh determination.224 The court process is not a review of the previous decision, but a completely new examination of the parent’s circumstances and new decision.

The current legislated grounds for change of assessment have been expressed by the CSA as the following 10 reasons:

Reason 1. The costs of maintaining a child are significantly affected by either parent’s high costs of contact with the child.

Reason 2. The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs.

Reason 3. The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended.

Reason 4. The child support assessment is unfair because of the child’s income, earning capacity, property or fi nancial resources.

Reason 5. The child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child.

Reason 6. The costs of maintaining a child are significantly affected by the payee’s high childcare costs for the child (and the child is under 12 years).

Reason 7. The parent’s necessary expenses significantly affect their capacity to support the child.

Reason 8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.

Reason 9. The parent’s capacity to support the child is significantly affected by:
  • their legal duty to maintain another child or person
  • their necessary expenses in supporting another child or person they have a legal duty to maintain
  • their high costs of contact with another child or person they have a legal duty to maintain.
Reason 10. The child support assessment is unfair because:
  • the payer earns additional income for the benefit of their resident child (who is not the payee’s child), or
  • the payee earns additional income for the benefit of their resident child (who is not the payer’s child).225
The Terms of Reference necessarily required the Taskforce to review these grounds for change of assessment since they are integral to decision-making on the development of a fair formula. In particular, the Terms of Reference require the Taskforce to consider the treatment of any overtime income and income from a second job, and also the issue of re-establishment costs.

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12.2 Limiting retrospectivity


An application for change of assessment may currently be made for a virtually unlimited time.226 This is highly undesirable, as it may open periods to re-examination which have long past, to the detriment of the other parent who finds past child support obligations being retrospectively reviewed. Particularly where a parent wishes to avoid complying with large outstanding child support debts, a belated application to reduce the assessment may be available, undermining the CSA’s ability to enforce debt. In practice, most decisions are not retrospective.227 However, the currently open discretion to make an application to vary past periods should generally be limited to the immediately preceding child support period.

However, there may be some exceptional circumstances where a parent has a legitimate reason for delaying their application for a change to a past assessment. One such reason is because information has only recently come to light about a payer’s hidden income. In such cases, a process should exist to enable this general limit on retrospective applications to be eased. A court is in the best position to consider the past ‘rights’ of the parties, and determine whether making an exception is appropriate. For this reason the Taskforce proposes that an application should be made to a court (in practice this would be the Federal Magistrates Court), to grant leave to apply out of time. This would be similar to the existing process under s.44 of the Family Law Act 1975 in relation to property and spousal maintenance applications.

Where such application has been made to a court, and the court is inclined to grant it, the court may have before it much of the necessary information and evidence from the parents to consider making a departure order. It may be inefficient to require the parents to return to the CSA to seek administrative determination of the application. In such cases, the court should have a discretion on application by a parent to proceed to determine the substantive departure application itself.

Recommendation 10


10.1 Change of assessment applications should only be able to be made in relation to the immediately preceding and current child support period, and future child support periods, unless the court gives leave.

10.2 The court may grant leave to the parent to make an application for change of assessment in accordance with the procedures of Part 6A of the Child Support (Assessment) Act 1989 in relation to child support periods up to seven years prior to the current child support period.

10.3 In considering whether to grant leave, the court should have regard to: a) the reason for the delay in bringing a change of assessment application; b) the responsibility for that delay; c) the hardship to the applicant if leave is refused; and d) the hardship to the respondent if leave is granted.

10.4 If the court grants leave to the parent to make the application, it may proceed to hear the matter itself on the application of either parent.

12.3 Streamlining jurisdiction for court-ordered departures


A parent seeking a change of assessment generally must apply for the change administratively to the CSA. This is a non-adversarial process, conducted at no cost to the parents, with as few formalities as possible so that both parents have equal opportunity to present their positions. As outlined above, once the CSA has made a change of assessment, a dissatisfied parent must then object, before being free to apply to a court for a fresh determination.228

A parent may currently apply directly to a court for a departure from the child support formula (court-ordered change of assessment) where there are already matters before the court (such as property or parenting matters) and the parent wishes to seek a change to the child support assessment. However, a practical issue arises with the current wording of the jurisdiction of the court in such cases, when the ‘proceedings pending’ that give the court jurisdiction settle, or are otherwise finalised. The ending of the non-child support proceedings may prevent the parents from effi ciently fi nalising their departure from the child support formula via the court. The jurisdiction of the court in these circumstances should continue.

Recommendation 11


Section 116 of the Child Support (Assessment) Act 1989 should be simplifi ed to provide that a court shall have jurisdiction to determine a child support application whenever the application is brought in conjunction with proceedings under the Family Law Act 1975 (without needing to be satisfied that the child support application should be heard ‘at the same time’ as the other proceedings), and that the court does not cease to have jurisdiction only because the other matters are resolved before the child support application is heard.
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12.4 High costs of contact


The current formula makes no adjustment for contact of less than 30% of nights per year. As a result, parents who do not see their children at all are treated identically to parents who care for their children 29% of the nights per year. The only way otherwise that the costs of contact can be taken into account is through a change of assessment. Where costs are greater than 5% of the parent’s Child Support Income, he or she can apply for a change to the formula assessment to recognise those costs.

As has been demonstrated, a parent with regular face-to-face contact involving overnight stays incurs significant costs, particularly relating to infrastructure.229 Costs of contact of 14% of the time or more are recognised in the proposed new formula, and an appropriate formula adjustment is made to allow for the average expenditure on a child provided by a non-resident parent. There will then be less need for a ground permitting further adjustment in individual cases, at least for the usual costs incurred by non-resident parents when children are in their care.

There still may be circumstances, particularly where parents reside some geographical distance apart, when the formula allowance may be inadequate. Costs of transport for the children to and from their non-resident parent’s home may be considerable. Where this cost is borne entirely by the non-resident parent, it may represent a signifi cant proportion of the Child Support Income of that parent, justifying an increased allowance beyond the allowance made in the formula for contact. If the resident parent is bearing this cost, the formula allowance for contact may actually be excessive. High costs of contact may thus be incurred by either parent.

Given the recognition of contact in the proposed formula, the Taskforce has concluded that the ground for change of assessment should be confined to high travel costs only. The CSA’s current policy is to consider a parent’s costs of establishing, modifying or enforcing contact orders under this ground of high contact costs. Consideration of such costs is not limited to established court costs, and is not excluded by a court order as to who should bear those costs.230 This policy conflicts with the role of the court to determine the allocation of costs resulting from matters before it on the merits of the case. The recommendation made by the Taskforce implicitly excludes this very broad view of the costs of contact.

Recommendation 12.1


The current change of assessment ground in s.117 of the Child Support (Assessment) Act 1989 based upon the high costs of contact should be replaced with a more limited ground in the light of the proposed recognition of the costs of regular contact in the formula. The ground should be that the capacity of either parent to provide financial support for the child is significantly reduced because of high travel costs borne by that parent in enabling him or her or the other parent to have contact with that child or any other child of the parent.
Another issue in relation to the costs of contact is that the legislation as currently drafted does not appear to provide relief for a non-resident parent who cannot afford to see his or her child. The parent may be meeting his or her child support obligations, and staying in contact with his or her child via affordable means, such as telephone, letters, email or other non-face-to-face avenues. The parent’s remoteness from his or her child may be for reasons of economic necessity, such as work, or for reasons beyond his or her control, including relocation by the resident parent. Funds to pay expensive airfares to enable contact to occur may remain unavailable without some adjustment of the child support liability. The requirement of prior expenditure being incurred or an existing pattern of expenditure on contact in order to satisfy this ground should be eased, and information about available options for parents who are not having contact publicised more generally.

Recommendation 12.2


This ground should be available to a parent who is not currently exercising contact because he or she cannot afford to do so, and hence has not been able to incur the expenditure prior to making the application.
Of course, there is a risk that a parent who has had their child support adjusted on the basis of proposed contact arrangements then fails to follow through and have face-to-face contact as planned. A process of establishing the parent’s detailed intentions and plans in order to establish the ground should minimise this risk. However, there can never be complete certainty, and plans may not be carried through for a range of reasons. There should be a ‘reversal’ available to the payee parent where contact does not actually occur, or does not occur to the extent planned. However, this should be via the change of assessment process, in order to allow both parents opportunity to explain what has happened, and ensure fairness to both parents and the child.

Recommendation 12.3


A change of assessment on this ground should be reversible upon application by the payee if the payer does not in fact exercise the expected level of contact, despite a reduction in his or her child support obligations.
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12.5 Overtime and second jobs


The Parliamentary Committee received many submissions arguing that parents’ efforts to get ahead financially following separation were undermined, specifi cally identifying the impact of child support where additional income had been earned by parents taking on higher paying jobs, overtime or second jobs.231 Such income is automatically included in the income base for calculation of child support, as it forms part of a parent’s taxable income. This will remain the case with the new formula.

The principle underlying child support calculation as proposed is that the cost of the child be based upon the likely expenditure of the parents on the child were they living together. The children should continue to benefit from the changes of standard of living of the parents despite the separation, as nearly as possible as though they were living with them. However, the fact that the parents are separated may affect parents’ decisions about their workforce participation. A parent’s decision to take on a greater level of work, for example to undertake overtime or work a second job, may be motivated entirely by the need to re-establish him or herself following the breakdown of the relationship. If so, there is less basis for the cost of the child to be increased as the result of such additional earnings.

There is currently a change of assessment ground (Reason 10) relating to different treatment of additional income earned by a separated parent for the benefit of children in his or her new family. This ground sets out a detailed basis upon which the parent’s workforce participation prior to and following the establishment of a new family should be compared to demonstrate that the amount is indeed ‘additional’. Additional income is defined in s.117A(3) of the Child Support (Assessment) Act as follows:

For the purposes of subparagraphs 117(2)(c)(iii) and (iv), an amount is taken not to be an additional amount in relation to a person in the following circumstances:
  1. the amount is earned, derived or received in accordance with a pattern of earnings, derivation or receipt that was established:
    1. before the resident child became a resident child of the liable parent or the entitled carer; or
    2. if the child was a resident child of the liable parent or the entitled carer immediately after the child was born—before the liable parent or the entitled carer could reasonably be expected to have been aware of the pregnancy that resulted in the birth of the child;
  2. the amount is earned, derived or received other than in accordance with such a pattern, but the alterations to the pattern are of a kind that it is reasonable to expect would have occurred in the ordinary course of events.
The Taskforce proposal is that this ground for change of assessment should now apply also to parents who can establish that their purpose in earning additional income is to meet re-establishment costs following the breakdown of their relationship. However, this motivation would become less compelling as the time from separation increases. Accordingly, the reason should be subject to a time limit, after which it will no longer apply.

Recommendation 13.1


The current ground for exclusion of an ‘additional amount’ of income (such as overtime or a second job) for a new child from the child support assessment should be expanded to allow payers and payees to apply for a change of assessment if the child support assessment is unfair, unjust or inequitable because they earn an ‘additional amount’ of income to assist them with re-establishment costs following separation, with a limit of up to five years from separation.

Recommendation 13.2


The ground is established when the parent can show that the parents lived in one household prior to separation, and that the parent commenced earning the additional amount after the separation.
A parent’s situation may change markedly during the five years following separation. A parent may re-partner, and take on responsibility for his or her partner’s children, or have further children in his or her new family. The purpose of his or her changed workforce participation arrangements may change. Provision of support for the children in his or her new family may become the primary purpose, although the initial motivation may have been solely re-establishment. However, this should not exclude the parent from using or substituting either ground, when either is applicable.

Recommendation 13.3


If it has been established that, in the fi rst five years since separation, the parent earned the additional amount to meet re-establishment costs, and if during that time the parent has a child in a new family, the additional income can be claimed as specifically for the benefit of the resident child, beyond the first five years.
In practice, parents make workforce participation decisions on balance, having weighed up competing factors. The current reason requires the parent to demonstrate that his or her new family was the sole motivation for increasing his or her earnings. The fact that a parent has gone through a reasoning process in making an earning decision should not exclude him or her from applying under this ground, where he or she can establish that their major reason or motivation was either re-establishment costs or the support of a child in his or her new family.

Recommendation 13.4


The parent should be required to establish only that a major reason for his or her change in work arrangements resulting in the ‘additional amount’ was re-establishment costs or the support of a dependent child, in order to make out this ground.

12.6 Recognition of responsibility for step-children


Second families may often include children who are not biologically related to the parent of the child support children. According to the Australian Bureau of Statistics, there are approximately 176,700 families (or approximately 7% of all families with children aged 0–17) where some of the children are not biologically related to both parents.232 Of all children living separately from one parent, 22% live in step or blended families.233

Children not living with both biological parents should receive support from their absent parent. The support provided will offset the contribution being made by the step-parent who is actually residing with the child. However, not all non-resident parents are in a position to contribute to the support of their child. The child’s absent parent may be deceased, unknown or not locatable, or unable to earn an income from which to contribute to the support of the child. In this case, the step-parent is actually supporting the child.

Some acknowledgement within the Child Support Scheme of the responsibilities of a step-parent has been made by reference to the parallel situation of ordering step-parent maintenance under the Family Law Act 1975.234 A step-parent subject to an order for step-parent maintenance under the Family Law Act may have their legal responsibility to a step-child reflected by a reduction in their child support.235 However, in practice, a court can rarely declare that a step-parent has a responsibility to support a child where the step-child is living with the step-parent against whom the order is sought.

As existing measures provide little relief for step-parents, it is proposed that there should be a closely defined change of assessment ground available for cases where the support for a step-child is impacting upon a parent’s ability to support their own child. The reason should essentially parallel the consideration process undertaken by the Family Court when considering whether to make a determination for step-parent maintenance. This would include considering the position and capacity of the partner of the child support parent (generally, the step-child’s biological parent) and of the step-child’s biological parent or parents, along with the impact of any change on the child support children and the payee.

This ground could only be established where neither of the biological parents is in a position to support the child. The fact that the non-resident parent is unable to pay child support is not, in itself, sufficient. The parent with whom the step-parent lives must also be unable to earn an income to provide for the child’s support.

In reaching a decision on whether an allowance should be made for a step-child to reduce a payer’s obligations to his or her biological children, decision-makers will need to have regard to FTB and any other government benefits being paid to the household to help support the child.

The fact that a parent has sought recognition of his or her provision for a step-child for child support purposes should be strong evidence in favour of finding a continuing step-parent obligation to support the child under s.66M of the Family Law Act 1975, if the parent and the step-child’s parent subsequently separate.

Recommendation 14.1


It should be a new ground for change of assessment that the parent has a responsibility, although not a legal duty, to support a step-child.

Recommendation 14.2


The ground to support a step-child is not taken to exist unless:
  1. the parent has lived continuously for a period of not less than two years in a marriage or de facto relationship with the parent of the step-child; and
  2. neither parent of the step-child is able to support the step-child due to:
    1. death,
    2. ill health,
    3. caring responsibilities for a child aged under five, or
    4. caring responsibilities for a child aged over five with disabilities requiring additional assistance and care from the step-child’s parent; and
  3. the needs of the step-child for assistance can be established, taking into account any income-tested benefit, allowance or payment being paid for the benefi t of that step-child.
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12.7 ‘Capacity to earn’


‘Capacity to earn’ cases are amongst the most controversial of all issues in the Child Support Scheme. Reason 8 of the grounds for change of assessment is that ‘the child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents’.

The ‘capacity to earn’ is different from the ‘capacity to pay’. A capacity to earn decision is one where although the decision-maker recognises that the parent’s real income is as stated, he or she has a capacity to earn greater than is being exercised. The consequence of a finding of this kind is that a parent’s child support may be assessed on the basis of a higher income than the parent is actually earning. In contrast, capacity to pay decisions usually involve arguments about whether the reported taxable income of the parent reflects his or her real income. Typically, the applicant in capacity to pay cases alleges that the reported taxable income represents only a portion of the income the other parent actually earns, or that the parent’s taxable income is minimised through use of companies or trusts through which income is channelled, or by the use of salary sacrifi cing.

Capacity to earn cases do not involve the CSA or the court saying that a person must go back into the workforce, or increase his or her earnings. However, the assessment is based on the finding that the higher award is reasonable because he or she has a higher earning capacity than is being exercised.

The Taskforce has two main concerns about capacity to earn cases. The first is that there needs to be a clearer legislative definition to limit when it is appropriate to deem a parent to have a higher capacity to earn than he or she is currently exercising. The case law indicates, for example, that a parent might be expected to engage in extensive overtime if that was the pattern of their work before the relationship broke down. In a 1998 decision, the Full Court of the Family Court wrote that:
a parent may be required or expected to work long hours or at more than one job if the parent has the capacity and opportunity to do so, and if the children need greater support than they would receive if the parent was only to work shorter hours.236
The Full Court went on to indicate that it was within the discretion of a trial judge to conclude that a parent should continue to work 80 hours per week if there was a proven work history of such long hours.237 This raises certain issues about human rights and occupational health and safety on which Parliament might be expected to have a view as a matter of policy.

The case law also indicates that a parent can be deemed to have a higher capacity to earn even when he or she has not been responsible for the loss of a job and is making bona fide efforts to develop a new business.238

The Taskforce considers that there needs to be a much clearer statutory defi nition of capacity to earn. No parent should be deemed to have a capacity to earn on the basis that he or she could work hours in excess of the level of normal full-time work for the occupation or industry in which he or she is employed, or that he or she could take on an additional job involving total working hours above the norm required by employment contracts for those in full-time work.

Furthermore, a parent should only have his or her child support assessed on the basis that he or she has a greater capacity to earn than he or she is exercising when there is evidence that a major purpose for making employment decisions has, on the balance of probabilities, been to reduce his or her child support liabilities, or to affect the child support liability of the other parent. The ground should not require the CSA or the courts to get involved in micro-managing people’s lives on the basis that, in the decision-maker’s view, they might have made a better decision about employment than they did in fact make. In an intact family, assuming children are not neglected, there are no situations apart from unemployment where parents will be required to earn more, or to contribute more to their children.

Although a capacity to earn decision does not involve making an order that a parent obtain a certain kind of work or increase his or her working hours, there is an element of coercion that is tantamount to this in making a child support assessment on the basis of deemed income or financial resources that the person does not in fact have. The current law on child support may be contrasted with the view that the courts have long taken in the enforcement of employment contracts. A court will not compel a person to engage in work involving personal services pursuant to a contract. At the most, it will by injunction restrain a person from engaging in any other work that would be in breach of that contract. The circumstances in which it will exercise this indirect coercion are carefully limited.239 The circumstances in which an administrative officer or a court should make such a decision as to income should be similarly limited to cases where a parent is deliberately taking action to affect their child support assessment.

The Taskforce considered whether capacity to earn decisions were of such sensitivity that they should be left only to courts to determine. It is apparent from a Report of the Ombudsman that there is cause for concern about the quality and consistency of administrative decision-making in this area.240

The Ombudsman’s investigation looked at 1,156 decisions, made over a six-month period, under Reason 8. Of these, 58% were initiated by payee parents and 41% by payer parents. The Ombudsman found significant regional variations in the decision-making on this issue. States vary markedly on how they deal with situations where a parent does not appear to be earning at full capacity. NSW tends to disregard potential earnings altogether and to set a liability based on costs of children alone. Victoria and Tasmania used average weekly earnings, and WA largely used award earnings. There was also a difference in how States dealt with cases where the payer did not respond: in some cases, applications were refused or resulted in modest estimates of capability; in others, the details provided by the payee were accepted unless refuted by the payer (who could later lodge another application where any further evidence would be considered).

On balance, the Taskforce considers that if there is a clear statutory definition of the meaning of ‘capacity to earn’, combined with guidance to Senior Case Officers to avoid regional differences in the light of that new definition, then this will resolve many of the problems of inconsistency in decision-making. The CSA may always decline to deal with a change of assessment application administratively. If a case were too complex to deal with administratively, and needed to go straight to court, the CSA could facilitate this by intervening in the case to lead evidence in a neutral way. This would take much of the burden of private litigation off the payee parent.

Recommendation 15


15.1 A parent’s income for child support assessment purposes should only be able to be increased because he or she has a higher capacity to earn than he or she is currently exercising if the following conditions are satisfi ed:
  1. the parent
    1. is unwilling to work when ample opportunity to do so exists or
    2. has reduced his or her employment below the level of normal full-time work for the occupation or industry in which he or she is employed;


    and

  2. the parent’s decisions in relation to employment are not justified on the basis of
    1. caring responsibilities or
    2. the parent’s state of health;

    and

  3. on the balance of probabilities a major purpose for the parent’s decisions in relation to employment was to affect the child support assessment.
15.2 Where the CSA declines to make an administrative determination in a capacity to earn case because the complexity of the issues makes it more appropriate for the matter to be dealt with by a court, the CSA should exercise its statutory right to intervene in the case in order to lead evidence to assist the court in reaching its decision.
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12.8 Reviewing change of assessment processes


The current change of assessment process is designed to fit neatly with the formula created by the original Child Support Consultative Group. Adjustments will be needed at a broad level in order to fit with the changed formula. In particular, modifi cations will be needed to take account of the routine inclusion of both parents’ incomes in the formula, of the fact that parental incomes determine both the cost of the child and the share of that cost between the parents, and of the different treatment of care and contact levels.

The changes may provide an important opportunity to make the availability of change of assessment better known, and the process clearer. The CSA is currently conducting a detailed review of the change of assessment process, including the accessibility of the process, and improving general satisfaction with outcomes. Simpler characterisation and presentation of the issues parents must understand in order to effectively navigate the process would assist greatly with this. Greater certainty and information dissemination about the reasons and the considerations used by decision-makers when considering an application should also assist with consistency and acceptance of outcomes.

It is important also that there should be some system for reporting to lawyers and others the reasons why changes of assessment have been allowed or declined. It is impractical to do this for all individual cases, but some summation of decisions each year for external stakeholders may improve understanding of the process, and promote greater confidence in that process.

Recommendation 16


Section 117 of the Child Support (Assessment) Act 1989, which provides the legislative basis for changes of assessment, should be redrafted to:
  1. take account of the new formula for child support proposed by the Taskforce;
  2. take account of developments in the case law since 1989;
  3. reflect the simplification adopted by the CSA in its 10 reasons for change of assessment;
  4. reduce the number of different categories, where reasons for a change of assessment could be combined and expressed at a higher level of generality; and
  5. make clearer the different considerations that decision-makers must take into account.
  1. Child Support Assessment Bill 1989, Explanatory Memorandum.
  2. A court may make a determination going below the level of the minimum liability, even where the minimum liability would otherwise apply.
  3. For example, setting the child support liability, rather than changing a component of the formula, would prevent administrative variation whilst the determination remains in effect to reflect responsibility for new dependent children, or a changed income reflected in the assessment.
  4. The Child Support Legislation Amendment Bill 2004 contains a proposal to ease this requirement (Schedule 2).
  5. Child Support Agency, The Guide, online, <www.csa.gov.au/guide/index.htm>, at 2.6.2, explaining s.117 of the Child Support (Assessment) Act 1989.
  6. An administrative application for change of assessment may only be made for periods starting after 1 July 1992.
  7. CSA advises that, in practice, the majority of decisions are prospective in nature, or are backdated to the date of the application or the conference.
  8. The Child Support Legislation Amendment Bill 2004 contains a proposal to ease this requirement (Schedule 2).
  9. See Chapter 8.
  10. Child Support Agency, The Guide, online, <www.csa.gov.au/guide/index.htm>, at 2.6.7.
  11. House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the inquiry into child custody arrangements in the event of family separation, December 2003, at 6.140 and following.
  12. Australian Bureau of Statistics, Family Characteristics, Australia (June 2003), Cat. No. 4442.0, Canberra, 2004, p. 19.
  13. Step families (98,600 or 4% of all families with children aged 0–17 years) are those formed when parents repartner following separation, and where there is at least one step-child of either member of the couple present. To be counted as a blended family, a family must contain a step-child but also have a child born to both parents. In 2003, there were 78,100 blended families, representing 3% of all families with children aged 0–17 years. Australian Bureau of Statistics, op. cit. p. 19.
  14. Family Law Act 1975, s.66M.
  15. Section 5 includes a child for whom a parent has a responsibility declared by a court under s.66M as a ‘relevant dependent child’ of that parent, resulting in an increase in the parent’s exempt amount.
  16. DJM v JLM (1998) FLC 85–272.
  17. ibid., 85–273.
  18. For example in B & P (2003) FMCAfam 199, the payer had set up a business as an electrician three years previously after having being involuntarily retrenched from a position as an employed electrician. The Federal Magistrate remarked that even though the business was growing, it was not growing fast enough for the payer to meet his obligations to provide for his children. He found that, notwithstanding the hardship this would present to the payer, it would be just and equitable, and also otherwise proper, to calculate his child support responsibility on the basis of an income of $30,000, just less than what he was receiving before retrenchment. He allowed the payer three months to make changes to his business or seek alternative employment.
  19. Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 4th ed., Butterworths, 2002, at 20–055, 21–220; Parkinson P. (ed.), The Principles of Equity, 2nd ed., LawBookCo, 2003, at 1723, 1806.
  20. Commonwealth Ombudsman, CSA Change of Assessment Decisions, May 2004.

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© Commonwealth of Australia 2009 : Last modified 21/04/2009 10:24 AM