- How to Challenge a Child Support Assessment
- By Nicole Neal ~ Family Law Express
- Ash Patil ~ fathers4equalty
- 04/08/2015 Make a Comment
- Contributed by: Daveyone ( 15 articles in 2015 )
A child-support-calculatorA Child Support assessment is generally made when a child’s parents separate, providing the primary carer of the child/ren with sufficient income from the other parent in o
A child-support-calculatorA Child Support assessment is generally made when a child’s parents separate, providing the primary carer of the child/ren with sufficient income from the other parent in order to support and raise the child/ren.
The assessed sum for child support is the result of a calculation based on a number of factors, reflecting the familial, carer and financial circumstances at play, and this formula has been revised numerous times since its original implementation back in the 1970’s.
As of March 2014, the Abbott government has announced a new parliamentary inquiry into the child support system 1, with a particular emphasis on under or over payments, enforcement options for payments, flexibility for families, providing the best options for children in conflict situations, and links between the child support program and the Family Court. 2
Every new iteration of the child support formula aims to provide a better, fairer system that is in sync with the financial realities and broader expectations of society at that time, however significant complaints are ongoing with many parents claiming that the formula has become too complex and difficult to navigate, and many others complaining of significant inequities.3
The very nature of child support leaves itself exposed to tensions and complaints, given that it provides financial support for children in often very acrimonious circumstances.
An assessment can be challenged by both the parent that pays the amount to the sole guardian, as well as the guardian who receives the payment.
Who can challenge
As explained within the Child Support (Assessment) Act 1989 (Cth),only a person who has at least shared care of the child can challenge an assessment of Child Support. 4‘Shared care’ is described as providing a percentage of care of at least 35% 5 and is calculated depending on the number of nights per year the child is in the care of the person. 6 A person who has consent from either a parent or a legal guardian to care for the child would also be considered eligible. 7
Why challenge?
You may want to have a Child Support assessment reviewed if you believe that:
Incorrect information was used;
Not all the relevant facts were considered;
Relevant details have been overlooked or new information has become available;
The appropriate law or policy was not applied correctly; or
Given the circumstances of the case, the wrong decision was made.
What can be challenged
Most Child Support decisions can be challenged; including the annual rate the carer is entitled to, the costs of each child and the taxable income of each parent. 8 However, the identity of the child/children’s parents and the collection process are two (2) decisions that cannot be disputed through this process.
Levels of review
Before formally applying for a challenge of the assessment, it is recommended that you call the Child Support Agency and discuss your concerns surrounding the payment. This may eliminate any lack of understanding and may present available options that you were unaware of.
1ST LEVEL
The initial formal application for challenge must be made to the Child Support Agency as a written application asking the Registrar of Child Support to evaluate the current situation. 9 The Registrar will allow the assessment to be changed if they are satisfied that it is in the best interests for the child, the payer and the payee to do so, and that it is necessary. 10 If the Registrar decides not to change the current assessment or if you are still not satisfied withthe changes made, an objection may be made to the Child Support Agency.
2ND LEVEL
If the Agency refuses the objection, there are two further options available. The first is to apply for a review of how the decision was made according to the law through the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR)). Under this option, the court will review whether the applicable law was applied to the decision correctly and if the decision-maker used their power in the proper way. 11
The second option is to apply for a review of the decision based on the facts through the Social Security Appeals Tribunal (SSAT). 12 The application must be in writing, sent within 28 days of receiving the objection decision 13 and may be made by either parent.This level of review is inexpensive, quick and is is conducted by a party that is independent of the Registrar.
3RD LEVEL
If you are still not satisfied with the decision reached by the SSAT, an application for further review by either the Family Court or the Federal Circuits Court may be made. 14 However, the appeal can only be made on a question of law (i.e. how the law or legal principles were applied or whether the process was legally correct NOT the facts of the case). Again, this must be lodged within 28 days of receiving the notice of the previous decision. 15
The court then has the power to make an order,which may set aside the decision of the SSAT, affirm the decision of the SSAT, or direct the case back to the SSAT to make a new decision. 16 The effect of the order handed down from the court then takes effect immediately. 17
From the Family Court, the matter can then be challenged through the Full Court of the Family Court and then through the High Court of Australia. If the decision was disputed within the Federal Circuit Court, it can then be taken to the Federal Court, followed by the Full Court of the Federal Court, and finally the High Court of Australia. Although, keep in mind that the fees for each challenge will dramatically increase with each application to a higher court.
The assessed sum for child support is the result of a calculation based on a number of factors, reflecting the familial, carer and financial circumstances at play, and this formula has been revised numerous times since its original implementation back in the 1970’s.
As of March 2014, the Abbott government has announced a new parliamentary inquiry into the child support system 1, with a particular emphasis on under or over payments, enforcement options for payments, flexibility for families, providing the best options for children in conflict situations, and links between the child support program and the Family Court. 2
Every new iteration of the child support formula aims to provide a better, fairer system that is in sync with the financial realities and broader expectations of society at that time, however significant complaints are ongoing with many parents claiming that the formula has become too complex and difficult to navigate, and many others complaining of significant inequities.3
The very nature of child support leaves itself exposed to tensions and complaints, given that it provides financial support for children in often very acrimonious circumstances.
An assessment can be challenged by both the parent that pays the amount to the sole guardian, as well as the guardian who receives the payment.
Who can challenge
As explained within the Child Support (Assessment) Act 1989 (Cth),only a person who has at least shared care of the child can challenge an assessment of Child Support. 4‘Shared care’ is described as providing a percentage of care of at least 35% 5 and is calculated depending on the number of nights per year the child is in the care of the person. 6 A person who has consent from either a parent or a legal guardian to care for the child would also be considered eligible. 7
Why challenge?
You may want to have a Child Support assessment reviewed if you believe that:
Incorrect information was used;
Not all the relevant facts were considered;
Relevant details have been overlooked or new information has become available;
The appropriate law or policy was not applied correctly; or
Given the circumstances of the case, the wrong decision was made.
What can be challenged
Most Child Support decisions can be challenged; including the annual rate the carer is entitled to, the costs of each child and the taxable income of each parent. 8 However, the identity of the child/children’s parents and the collection process are two (2) decisions that cannot be disputed through this process.
Levels of review
Before formally applying for a challenge of the assessment, it is recommended that you call the Child Support Agency and discuss your concerns surrounding the payment. This may eliminate any lack of understanding and may present available options that you were unaware of.
1ST LEVEL
The initial formal application for challenge must be made to the Child Support Agency as a written application asking the Registrar of Child Support to evaluate the current situation. 9 The Registrar will allow the assessment to be changed if they are satisfied that it is in the best interests for the child, the payer and the payee to do so, and that it is necessary. 10 If the Registrar decides not to change the current assessment or if you are still not satisfied withthe changes made, an objection may be made to the Child Support Agency.
2ND LEVEL
If the Agency refuses the objection, there are two further options available. The first is to apply for a review of how the decision was made according to the law through the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR)). Under this option, the court will review whether the applicable law was applied to the decision correctly and if the decision-maker used their power in the proper way. 11
The second option is to apply for a review of the decision based on the facts through the Social Security Appeals Tribunal (SSAT). 12 The application must be in writing, sent within 28 days of receiving the objection decision 13 and may be made by either parent.This level of review is inexpensive, quick and is is conducted by a party that is independent of the Registrar.
3RD LEVEL
If you are still not satisfied with the decision reached by the SSAT, an application for further review by either the Family Court or the Federal Circuits Court may be made. 14 However, the appeal can only be made on a question of law (i.e. how the law or legal principles were applied or whether the process was legally correct NOT the facts of the case). Again, this must be lodged within 28 days of receiving the notice of the previous decision. 15
The court then has the power to make an order,which may set aside the decision of the SSAT, affirm the decision of the SSAT, or direct the case back to the SSAT to make a new decision. 16 The effect of the order handed down from the court then takes effect immediately. 17
From the Family Court, the matter can then be challenged through the Full Court of the Family Court and then through the High Court of Australia. If the decision was disputed within the Federal Circuit Court, it can then be taken to the Federal Court, followed by the Full Court of the Federal Court, and finally the High Court of Australia. Although, keep in mind that the fees for each challenge will dramatically increase with each application to a higher court.
Source: https://www.familylawexpress.com.au/family-law-brief/children/childsupport/child-support-enforcement/how-to-challenge-a-child-support-assessment/2501/
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