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2. The Child Support (Assessment) Act 1989 (the Act) provides three ways for departing from an administrative assessment:
* departure order made by a court (Part 7);
* child support agreement, having effect as if it were a departure order by consent (Part 6); and
* determination by the Registrar (Part 6A).
3. When a court makes a departure order or the Registrar accepts a child support agreement, the Act requires the Registrar to:
* immediately give effect to the departure order, if necessary amending the assessment (subsection 119(1));
* continue to give effect to the order in any subsequent assessment (subsection 119(2));
* immediately give effect to the child support agreement, if necessary amending any existing assessment (subsection 93(1) if child support not already payable, subsection 94(1) if child support already payable);
* continue to give effect to the agreement (as required by subsections 93(3) and 94(2)) in accordance with section 95, thus making any subsequent assessment subject to the agreement as if it were a departure order made by consent (paragraphs 35(c) and 40(b)); and
* if there is both an order and agreement and their provisions conflict, give effect to the more recent provisions (subsections 95(5) and 98(1)).
The absence of an equivalent requirement in the Act for the Registrar to give effect to a determination means that a departure order or child support agreement takes precedence over a determination.
Determinations in force prior to the order or agreement
4. Although departure orders and child support agreements take precedence over determinations, this does not necessarily mean that the Registrar must cease giving effect to determinations currently in force. The Act only says that the Registrar must give effect to the order or agreement, if necessary by amending the assessment. The provisions of the order or agreement replace those provisions of any determination with which they conflict. Those provisions of a determination which do not conflict remain unaffected.
Determinations made after the order or agreement
5. Subsection 98C(1) does not prevent the Registrar making a determination if an order or agreement is already in force. However, the Registrar must continue to give effect to the order or agreement. Any provisions of the determination which conflict with the order or agreement have no effect.
Order or agreement for child support other than in periodic amounts to the carer
6. The Registrar can always give effect to a determination for a period which is covered by a court order or child support agreement for provision of non-periodic child support or child support to a third party. Section 127 requires the Registrar to give effect to such an order or agreement by reducing the annual rate by the amount or percentage specified in the order or agreement. Unlike a determination, this kind of order or agreement cannot set the annual rate or a component of the formula. Therefore, it cannot conflict with a determination because there is no overlap in what each can do.
Example 1:
(Where the Registrar may give effect to a determination at the same time as a departure order or child support agreement)
A departure order or child support agreement varies the child support percentage and a determination of the Registrar varies the exempted income amount.
In order to give effect to the order or agreement, the Registrar must immediately amend the assessment by varying the child support percentage. The Registrar may also give effect to the determination which varies the exempted income amount, whether it was made before or after the order or agreement, because it does not conflict with that order or agreement.
Example 2:
(Where a determination has no effect if it conflicts with an order or agreement)
A departure order or child support agreement sets the annual rate of child support.
In order to give effect to the order or agreement, the Registrar must immediately amend the assessment by varying the annual rate. Any existing determination, which directly or indirectly varied the annual rate, ceases to have effect for any period covered by the order or agreement. The Registrar will not make a subsequent determination which directly or indirectly varies the annual rate for a period covered by the order or agreement because the order or agreement would negate the determination's effect.
Table
Kinds of determinations the Registrar may give effect to for a period which is covered by a departure order or child support agreement
n/e: Means 'no effect'. This situation arises where a determination does not conflict with a departure order or agreement, but the determination does not have any effect because the provisions of the two are identical.Example A: An order or agreement and a determination both lift the income cap imposed by section 42. The determination does not conflict with the order or agreement, but it has no effect.
n/a: Means 'not applicable' because the two elements in the formula cannot co-exist. For example, an eligible carer has a disregarded income amount or an exempted income amount, but not both.
#1: There are three annual rates in relation to split/shared cases. The first two are the respective annual rates of the parents, each parent being treated as liable to the other. If an order or agreement set one of these rates, a determination cannot vary that rate, but can vary the other. The third annual rate is that arrived at after offsetting the annual rate of each parent, as required by section 49. If an order or agreement set this rate, a determination can have no effect on any of the three rates.Example B: An order or agreement set the annual rate of child support payable by the father to the mother. A determination cannot vary this annual rate nor the annual rate arrived at after offsetting one parent's annual rate against the other. A determination could vary the annual rate of child support payable by the mother to the father.Example C: An order or agreement set the annual rate when the carer had sole care. The care arrangements subsequently changed to shared care. A determination cannot set the annual rate of the parent who was the liable parent when the order or agreement was made. Nor could a determination vary the annual rate arrived at after offsetting one parent's annual rate against the other. A determination could vary the annual rate of the parent who was the sole carer when the order or agreement was made.
#2: There are two child support percentages in relation to split/shared cases - one for each parent because each is treated as liable to the other. If an order or agreement set the child support percentage of one of the parents, a determination cannot vary this percentage, but can vary the percentage of the other parent.Example D: An order or agreement set the child support percentage when the carer had sole care. The care arrangements subsequently changed to shared care. A determination cannot set the child support percentage for the parent who was the liable parent when the order or agreement was made. A determination could vary the child support percentage of the parent who was the sole carer when the order or agreement was made.
#3: Where both parents are liable to a carer, or a parent is liable to more than one carer, an order or agreement may prevent a determination being made in respect of one of the parties, but not the other.Example E: An order or agreement set the rate of child support payable by a parent where both parents are liable to a carer. A determination which removed the maximum possible child support liability cap imposed by section 52 would have no effect in relation to that parent. A determination removing the cap in relation to the other parent would have effect.Example F: A parent is liable to two carers and an order or agreement set the annual rate of child support payable to one of those carers. A determination which modified the formula in paragraph 54(1)(b) for calculating the child support percentage for each carer would have no effect in relation to the carer who is subject to the order or agreement setting the annual rate. The determination would have effect in relation to the carer who is not subject to the order or agreement.
25 March 1998
Previously released as Draft CSD 96/D2
and Draft CSD 97/D1
FOI index detail
reference number
I 1218436
ISSN 1039 - 0634
ATO References:
94/7561-3
Subject References:
child support
child support agreement
departure order
determination
Legislative References:
CSAA Part 6
CSAA Part 6A
CSAA Part 7
CSAA 35(c)
CSAA 40(b)
CSAA 42
CSAA 49
CSAA 52
CSAA 54(1)(b)
CSAA 93(1)
CSAA 94(1)
CSAA 95
CSAA 95(5)
CSAA 98(1)
CSAA 98C(1)
CSAA 119(1)
CSAA 119(2)
CSAA 127