Family Law – Challenging Child Support Assessments

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”) accordance to the formula in the Child Support (Assessment )Act 1989 (“the Act”).

However, the formula is not suitable for all cases. An assessment based on the formula takes into account, among other factors, the taxable income of the parents. In some situations, the taxable income of one or both parents may not accurately reflect their true financial circumstances. For example, a parent may not earn a regular salary, may be asset-rich but income-poor, or may be self-employed and able to claim significant tax deductions.

In such cases, either the parent responsible for paying child support (“the payer”) or the parent entitled to receive it (“the payee”) may lodge an objection to the assessment. An officer within the Agency may then conduct an internal review of the decision. This review can result in an adjustment to the assessment to more accurately reflect the true financial capacity of the parents.

If the applicant is not satisfied with the outcome of the internal review, they may appeal externally. This may involve taking the matter to the Administrative Review Tribunal (“ART”) or, in more complex cases, applying to the Federal Circuit and Family Court of Australia (“the Court”).

Objections addressed by the Agency in-house

A parent (or a non-parent carer) may lodge an objection with the Agency to have an issued assessment reconsidered. An Agency officer will review the original decision, taking into account submissions provided by both parents.

The officer may amend the original assessment if the case satisfies one or more specific “reasons” set out in the legislation, 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 where 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 Administrative Review Tribunal

A parent may challenge the in-house review decision by appealing to the ART.

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

The ART 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

If the ART decision concerns the amount of care you (or the other parent) have for your child/ren, you may lodge a further appeal to the ART. This is known as an ART second review. An application for a second review must be submitted to the ART within 28 days of the original decision.

For all other child support matters, once the ART has made a decision, there is no further review. However, you may have a right to appeal to the Court. This appeal can only be made on a question of law, not simply because you disagree with the facts as determined by the ART.

To appeal, you must file a Notice of Appeal with the Court within 28 days of receiving the ART decision.

Identifying a valid question of law can be complex. It is strongly recommended that you seek legal advice before deciding to appeal an ART decision in court.

If you have a child support matter, or just have some general legal enquires, we can be contacted on 02 6206 1300.