Family Law – Challenging Child Support Assessments

By Carlos Turini – Family Law Specialist

In the vast majority of cases, child support is paid by a parent of a child (“the payer”) to the other parent (“the payee”) pursuant to an assessment issued by the Child Support Agency (“the Agency”) pursuant to the formula in the Child Support (Assessment )Act 1989 (“the Act”) (see our article entitled “Child Support”).

However, the formula is not suitable to all cases. An assessment pursuant to the formula will be based, among other things, on the taxable income of the parents. There are cases where the taxable income of one or both of the parents does not reflect his/her true financial circumstances as a parent may not be on a salary, be asset rich but income poor and/or self-employed and able to claim substantial tax deductions on their income.

On such occasions, the parent with an obligation to pay child support (“the payer”) or the parent entitled to receive child support (“the payee”) may be entitled to lodge an objection to the assessment and an officer from within the Agency may then review the decision in-house. The result may be an adjustment to the assessment in the particular case to reflect the true financial capacity of the parents.

If unsatisfied with the in-house review decision, the applicant may then appeal externally to the Agency to the Social Security Appeals Tribunal, in some more complex cases, for a departure order to a Court.

Objections addressed by CSA in-house

A parent (or a non parent carer) may lodge an objection with the Agency to reconsider an assessment which has been issued. An officer from the Agency will review the original decision by considering submissions lodged by both parents.

The Agency officer may change the original assessment if the case falls within the category of one or more specific “reasons” listed in the Act, namely:

  • If the payer incurs high costs to enable him/her to spend time with the child;
  • high costs associated with the child’s special needs
  • High costs of caring for, educating or training the child in the way both parents intended
  • The original assessment is unfair because of the child’s income, earning capacity, property or financial resources
  • The original 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
  • the high child care costs for the child (and the child is under 12 years of age)
  • The parent’s necessary expenses significantly affect their capacity to support the child
  • The original assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
  • 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 enabling them to spend time with, or communicate with, another child or person they have a legal duty to maintain.
    • The parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child support child.

External review applications to the SSAT or AAT

A parent may challenge the in-house review decision by appealing to the Social Security Appeals Tribunal (SSAT).

The SSAT provides an informal and economical procedure to review decisions made by the Agency.

The SSAT will consider all submissions by the parties and will take a fresh look at the original decision made by the Agency.

Appeals to the Courts

A parent affected by a decision from the SSAT may appeal to the Family Court or the Federal Magistrates Court applying family law jurisdiction.

A parent may in some cases also appeal directly to a Court in relation to a decision made by the Agency.

For more information please contact:

Carlos Turini at: cturini@elringtons.com.au or call Carlos on: 02 6206 1300

Further Reading:

Child Support

Private Binding Child Support Agreements