If you are paying or receiving child support payment, then you can apply to the Child Support Agency to change the child support assessment in special circumstances.
The administrative process is set out in Part 6A of the Child Support (Assessment) Act 1989 (Cth) for a child support assessment to be changed, in limited situations. The Child Support Agency sets out ten reasons which allow a person to bring an application for changing child support assessment pursuant to the Child Support (Assessment) Act 1989 (Cth).
In our experience, some of the reasons that are commonly relied upon by a parent for changing the assessment are:
- 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 8 – The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
An applicant cannot simply apply for change of assessment because they think the assessment is unfair. They must nominate at least one of the ten reasons in their application as well as provide details of their financial circumstances. There are also legal elements that the application must satisfy under these reasons, with relevant evidence and reasoning.
The application is usually lodged with the Child Support Agency. The Child Support Agency has the power to set a new annual rate of child support in substitution of the original assessment.
Two common situations that may trigger an Application for change in child support
Liability to pay cost towards private schooling
Where a child has attended a public school prior to the parents’ separation, and subsequent to separation, one parent enrols the child in a private school without consulting with the other parent, an application for changing the child support may be made under Reason 3.
Generally, unless a parent has consented to contribute towards private school fees, he or she should not be obliged to contribute. This would also be in the case where a parent has not consented to the child attending that school.
In some special circumstances, a parent may have to contribute towards private schooling even though they may not have consented or being consulted on the matter. This is only if there is clear evidence that it is in the best interest of the child to attend private school as opposed to attending public school. It may be appropriate in this case for he or she to contribute towards the private school fees.
Earning capacity of a parent
A parent may also change their child support assessment under Reason 8 in cases where the other parent decides either to give up work completely, or to adjust their financial
position so they do not earn nearly as much as they did before. This may be done to avoid their child support obligations or has the benefit of financial resources (such as an interest in a business or company).
In these kinds of situations, the Child Support Register may change the child support assessment based on the other parent’s higher earning capacity, not the actual earnings. The Child Support Register may look at the parent’s ability to work, whether there is an opportunity to work, and their willingness to work.
An application for change in a child support assessment allows the parties to respond to unanticipated changes in the parents’ and children’s lives. Such applications have long lasting effects, as these payments will generally continue until the child or children turn 18.
If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.