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FAMILY LAW

Challenging a child support assessment to get more child support

There are two ways to challenge a child support assessment.

Child Support

There are two ways to challenge a child support assessment:

  1. application to the child support Registrar for a change of assessment in special circumstances; or
  2. application to the court for a Departure Order.

Which parent can apply?

Either parent can apply to have an assessment reviewed.

What can be changed?

Your assessment can be varied by:

  • Determining the annual rate of child support
  • Varying the costs percentage of the children (see our article on calculating child support for a real example of this)
  • Varying the child support income
  • Varying the parents’ combined income

Process for applying for a change of assessment

Step 1 Lodge a change of assessment with the child support Agency (“Agency”)
Step 2 The Agency will provide your request to the other parent and provide them with an opportunity to respond
Step 3 A conference is then organised with both parties (in person or by telephone)
Step 4 The Agency can make enquiries and carry out an investigation
Step 5 A decision can be made regarding future payment periods as well as past payment periods (only up to a period of 18 months regarding past payments, otherwise the court’s leave is required)
Step 6 If the issues are too complex, the Agency will ask the applicant to file an application with the court
Step 7 For your application to be successful, you will need to show the agency that:

(a)    A reason for a change of assessment exists; and

(b)    The change to the assessment is just and equitable

(c)     The proposed change is otherwise proper

These are explained in more detail below.

Step 8 The Agency will then issue you with a written decision. There is an objections process if you are unhappy with the outcome of your application.

Reasons you can challenge your child support assessment

The following are considered reasons for a change of assessment:

  1. The costs of raising the child are significantly affected by the high costs of spending time or communicating with the child
  2. The costs of raising the child are significantly affected because of their special needs
  3. The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended
  4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources
  5. The child support assessment is unfair because you’ve paid or transferred money, goods or property. This can be to your child, the receiving parent or a third party and is for the child’s benefit.
  6. The costs of raising the child are significantly affected by the parent or non-parent carer’s child care costs. This child must be under 12 years of age.
  7. Your necessary expenses significantly reduce your capacity to support the child.
  8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
  9. Your capacity to support the child is significantly reduced because of your duty to maintain another person or child. This also includes the special needs of that person or child or the costs of spending time with or communicating with that person or child.
  10. Your responsibility to support a resident child significantly reduces your capacity to support another child.

Is it Just and Equitable for you to get more child support

Once the Agency is satisfied you have a reason for applying for a change of assessment, they will consider whether a change is just and equitable.

This includes considering:

  • the nature of the duty of a parent to maintain a child
  • the needs of the child
  • the income, earning capacity, property and financial resources of the child
  • the income, property and financial resources of each parent who is a party
  • the earning capacity of each parent who is a party
  • the commitments of each parent who is a party that are necessary to enable the parent to support himself/herself. This also includes any other child or another person that the person has a duty to maintain
  • the direct and indirect costs incurred by the carer entitled to child support in providing care for the child
  • any hardship that would be caused

Whether the change to your child support assessment is otherwise proper

If you have a reason for a change of assessment and the change is considered just and equitable, the Agency must finally consider whether the change is otherwise proper, considering:

  1. the duty of a parent to maintain their child; and
  2. the effect of the change on a carer or the child. This includes any income tested pension or benefits.

If you need any advice on the criteria the Agency will consider, please contact our office.

What to include in your application

You need to give evidence for at least one of the ten reasons to change an assessment.

The following evidence will not be accepted:

  • statements from children
  • anything offensive
  • anything obtained illegally.

What if I am not able to challenge my child support assessment?

The court may make an order, upon application from a party, departing from an administrative assessment (such as a child support assessment).

The court will only be able to make this type of order where one of the following circumstances exists:

  • Where the Agency is unable to make a decision regarding an application for a change of assessment; or
  • Where the parties already have matters before the court. An example would be that there are currently parenting matters being decided by the court.

The court will consider the following in determining whether a departure order should be made:

Step 1 Grounds for a departure order have been established
Step 2 It is just and equitable to make the orders
Step 3 Whether it is otherwise proper to make the orders

We are able to provide you with detailed advice regarding whether you are able to bring an application for a departure order and whether your application is likely to be successful.
 

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