Either parent or a non-parent carer can lodge an application to DHS-Child Support to Change the Assessment in Special Circumstances. These applications are commonly made where parents’ incomes are disputed, or where parents or carers have extra costs associated with a child’s special needs, or with private schooling which both parents agreed to. This application must be made in writing on the appropriate form. DHS-Child Support will send a copy of the application and any supporting documents to the other parent, who is given the opportunity to respond and/or make a cross-application.
A Senior Case Officer is appointed to consider the application. The Senior Case Officer can consider variations to the current and future assessments. Changes to the assessment can be backdated for a period up to 18 months prior to lodging the application, although often a change is only made from the date the application was lodged.
To change any earlier assessments an application must first be made to a court seeking leave (permission) to make changes that are more than 18 months in the past. A court can only authorise changes to the assessment for a maximum of 7 years prior to the application being lodged.
When considering whether to make a change to the assessment, the Senior Case Officer must be satisfied of the following three criteria:
- that special circumstances exist;
- that one of the reasons (listed below) exists; and
- that it is fair to all the parties and the community to make a change.
There are ten specific grounds of review that can be established:
Reason 1 It costs more than 5% of the child support income amount to have spend time with the child(ren). (If a parent has at least regular care of the child(ren), a claim under this reason is restricted to travel related expenses).
Reason 2 It costs extra to cover the child(ren)’s special needs.
Reason 3 It costs extra to care for, educate or train the child(ren) in the way that both parties had intended.
Reason 4 The child support assessment does not take into account the income, earning capacity, property and financial resources of the child(ren).
Reason 5 The child(ren), payee or someone else has received or will receive, money, goods or property from the payer.
Reason 6 It costs more than 5% of the child support income amount for child care for the child(ren) who are 12 years or under.
Reason 7 The payee or payer have necessary expenses in supporting themselves that affect their ability to support the child(ren) of the assessment.
Reason 8 The child support assessment does not taken into account the income, earning capacity**, property and financial resources of one or both of the parties.
Reason 9 The payee or payer has a legal duty to maintain another person or another child(ren) not included in the child support assessment. This can include a legal duty to support an adult child who is in need of support because s/he is undertaking study or training, or because s/he has a disability, or a legal duty to support a spouse.
Reason 10 The payee or payer has a responsibility to support a resident child who lives with him/her but is not a biological child. A resident child is a child of the partner of the payee or payer with whom they have lived for at least 2 years. It must be shown that neither of the biological parents of the resident child is able to support them.
** Earning Capacity has a very specific definition. In order to have a parent assessed on his/her earning capacity (rather than on his/her actual income), an applicant has to satisfy three criteria –
1. The parent is either:
a) not working despite ample opportunity to do so, or
b) has reduced weekly working hours below full-time hours, or
c) has changed occupation, industry or working pattern
2. The parent’s decision about work is not justified by either:
a) caring responsibilities, or
b) health reasons
3. The parent (whose earning capacity is being examined) has failed to show that the work arrangements have not been put in place in order to have an effect on the child support assessment.
The Senior Case Officer, in making a decision, is bound by the Child Support (Assessment) Act 1989 (Cth), Child Support (Registration & Collection) Act 1988 (Cth) and the Family Law Act 1975 (Cth). The legislation states that an assessment can only be varied where it is just, equitable and otherwise proper to do so.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.