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Recent amendments to the Child Support (Assessment) Act are retrospective

Corey Gauci

On 1 July 2018, amendments to the Child Support (Assessment) Act 1989 were made via the enactment of the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018. Among those were a series of changes affecting Binding Child Support Agreements.

What are the new amendments to the Child Support (Assessment) Act 1989?

In summary, from 1 July 2018 onwards, agreements will be suspended where:

  1. A parent previously entitled to child support pursuant to the agreement (the eligible carer) now cares for the child for less than 35% of all overnights (the former carer); and
  2. The period the former carer has not been an eligible carer is:
    • 28 days or less; or
    • 26 weeks, where:
      • the agreement provides that it may be suspended if a parent ceases to be an eligible carer for more than 28 days; or
      • both parents advise the child support registrar that they want the agreement suspended for more than 28 days before the end of the 26 week period; or
      • the child support registrar is satisfied that there are special circumstances in relation to the change in the care of a child.

If a former carer becomes an eligible carer again within the 28 day or 26 week timeframe (whichever applies) before the suspension ends, the agreement is no longer suspended.

The agreement terminates if the suspension period ends (whether it is 28 days or 26 weeks) and the former carer has not returned to being an eligible carer.

If the agreement is suspended or terminated in relation to one child, it may continue in relation to other children; if the parent continues to be an eligible carer of those other children.

Why are the new amendments significant?

The new amendments are retrospective. This means they affect all agreements; regardless of whether they were signed years before the new amendments came into effect.

If a previous eligible carer for child support is now a former carer, it is possible their agreement is now suspended given the new amendments. Further, if the former carer does not return to being an eligible carer before the end of the suspension period, the agreement will be terminated and child support will be paid as assessed or the parties will need to enter a new agreement.

If you think that your Binding Child Support Agreement may be affected by the recent amendments to the Child Support (Assessment) Act, and you want more information on how we can help you, contact our Family Law team.

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