QLD How Far Back can Child Support be Backdated?
- Thread starter Sammy12
- Start date
-
- Tags
- child support
No more than 7 years.
Will probably start from around the time a DNA test was requested.
CSA will work out what you owe. You then claim inability to pay and they'll most likely work out a payment plan.
Will probably start from around the time a DNA test was requested.
CSA will work out what you owe. You then claim inability to pay and they'll most likely work out a payment plan.
If the court makes a declaration that you are the parent and you are liable for child support, child support is payable from when the mother first made her application of child support to CSA.
There have been a few discussions on this site about that and people usually tell me its up to the Court as to when that occurs. Recently there was an appeal in the Family Court in relation to a section 106A declaration - Calafiore & Netia - where the Court sets out the fact that the lower court Judge was incorrect in thinking that it was up to CSA, where in fact the start of the child support is a statutory date. What this means is that the court does not have discretion to pick and choose a date.
At the risk of cherry picking, for those who don't like to read full judgements on a Sunday night here are the salient quotes
There have been a few discussions on this site about that and people usually tell me its up to the Court as to when that occurs. Recently there was an appeal in the Family Court in relation to a section 106A declaration - Calafiore & Netia - where the Court sets out the fact that the lower court Judge was incorrect in thinking that it was up to CSA, where in fact the start of the child support is a statutory date. What this means is that the court does not have discretion to pick and choose a date.
At the risk of cherry picking, for those who don't like to read full judgements on a Sunday night here are the salient quotes
48. Given the retrospective language contained in s 106A(6)(a), and given a child support period is defined in s 7A of the Assessment Act as “commencing the beginning of the day on which an application for an administrative assessment of the child support payable for a child is properly made under Part 4”, the effect of those provisions is to render the “liable parent”, liable from when the assessment application was first made; in this case that would appear to be 2 May 2013.
63. I note in that respect that her Honour concluded at [10] that “it is still a matter for the Child Support Agency as to when they make their assessment of child support and the date from which they make that assessment of child support”. Leaving aside what might be said of the literal interpretation of that statement, it is a statement made, with great respect, without reference to the relevant statutory provisions, some at least of which I have set out above.
64. Those statutory provisions make it clear that the Child Support Agency is to make an assessment for child support from the date on which an assessment application is made. There may be other remedies of the type to which I have earlier referred that might otherwise impact upon that assessment, but that is not the issue to which her Honour addressed her comments.
65. In short, the date from which any assessment for child support commences is statutorily prescribed. As I have earlier sought to point out, in this case, that date is 2 May 2013. Again, other provisions of the Act relate to other remedies that might be available to either party, but that is not the issue with which her Honour was concerned.
63. I note in that respect that her Honour concluded at [10] that “it is still a matter for the Child Support Agency as to when they make their assessment of child support and the date from which they make that assessment of child support”. Leaving aside what might be said of the literal interpretation of that statement, it is a statement made, with great respect, without reference to the relevant statutory provisions, some at least of which I have set out above.
64. Those statutory provisions make it clear that the Child Support Agency is to make an assessment for child support from the date on which an assessment application is made. There may be other remedies of the type to which I have earlier referred that might otherwise impact upon that assessment, but that is not the issue to which her Honour addressed her comments.
65. In short, the date from which any assessment for child support commences is statutorily prescribed. As I have earlier sought to point out, in this case, that date is 2 May 2013. Again, other provisions of the Act relate to other remedies that might be available to either party, but that is not the issue with which her Honour was concerned.
I the The CHeese is right on this one.
when would child support start? I reckon from the time of the application. So the other parent objects, takes yrs to go to court to get dna... and if / when the courts are satisfied child support should be paid and it should have been paid from the time of application.
But can they back-date beyond the date of application?
4.3.2 Applications & Orders about Decisions under the CSA Act | Child Support Guide
According to this they can go back 7 yrs.
So hypothetically, for old mate... Mum never made an assessment when the child was born. One night stand? didn't know dad's name / birtdate etc... But stumbles upon him 2 yrs later, gets details and applies to court. What would court do? don't know. But arguably could backdate at their discretion.
when would child support start? I reckon from the time of the application. So the other parent objects, takes yrs to go to court to get dna... and if / when the courts are satisfied child support should be paid and it should have been paid from the time of application.
But can they back-date beyond the date of application?
4.3.2 Applications & Orders about Decisions under the CSA Act | Child Support Guide
According to this they can go back 7 yrs.
So hypothetically, for old mate... Mum never made an assessment when the child was born. One night stand? didn't know dad's name / birtdate etc... But stumbles upon him 2 yrs later, gets details and applies to court. What would court do? don't know. But arguably could backdate at their discretion.
WOW! The judgement that @The Cheese referenced is a beauty and well worth the read (complicated case, but worth it). The highlighting of s7A changed my entire view on this subject. I previously thought that courts did have some discretion on a case by case basis, but not any more. (Last time I paid child support was over a decade ago, so my thoughts were based on what I was told back in the 1990's when I first began paying.)
The above case prompted me have a good read of the legislation out of curiosity - and this is how I see it:
Under s7A, the first "child support period" begins when an application for child support is first made - and as pointed out by the Judge in the above case, this is "statutory", therefore can not be changed.
What's interesting, is that I keep seeing "7 years" popping up in relation to backdating, but I believe that this is an incorrect interpretation. This claim seems to come from s111 and s112:
s111 is "Application for amendment of administrative assessment that is more than 18 months old".
s112 is "Court may grant leave to amend administrative assessment that is more than 18 months old".
Under these sections, an application can be made for
1. the Registrar to make a determination under s98S, or
2. a Court to make an order under s118.
I think this is where people think that backdating can occur - but I see it differently. Both s98S and s118 deal with retrospective adustments to previous child support periods. These sections only allow for adjustments to made to existing periods (assessments or agreements) - there is no facility for new periods to be created, therefore there is no facility to backdate.
It seems clear to me, that the purpose of s98S and s118 are to make adjustments to previous periods when it is found that the assessments for those periods are based on incorrect information. I assume that this would mostly be used to catch people who withhold information in an attempt to pay less or receive more money than they should be.
Sections 111 and 112 limit the above to periods that occur 18 months to 7 years prior to the date that the application is made under the relevant section. So this has nothing to do with the original application for child support - it is a specific reference to the application made under s111 or s112.
So to sum it up:
1. The start date is the date that the first application for child support is made, or the date that an agreement is first accepted by the Registrar.
2. The start date is fixed because of the definition of "child support period" as provided by s7A and therefore can not be changed by CSA, the Registrar, a Court, or anyone else.
Therefore,
That's how I interpret it.
(Still looking if anything else might affect the start date, but haven't found anything yet...)
The above case prompted me have a good read of the legislation out of curiosity - and this is how I see it:
Under s7A, the first "child support period" begins when an application for child support is first made - and as pointed out by the Judge in the above case, this is "statutory", therefore can not be changed.
What's interesting, is that I keep seeing "7 years" popping up in relation to backdating, but I believe that this is an incorrect interpretation. This claim seems to come from s111 and s112:
s111 is "Application for amendment of administrative assessment that is more than 18 months old".
s112 is "Court may grant leave to amend administrative assessment that is more than 18 months old".
Under these sections, an application can be made for
1. the Registrar to make a determination under s98S, or
2. a Court to make an order under s118.
I think this is where people think that backdating can occur - but I see it differently. Both s98S and s118 deal with retrospective adustments to previous child support periods. These sections only allow for adjustments to made to existing periods (assessments or agreements) - there is no facility for new periods to be created, therefore there is no facility to backdate.
It seems clear to me, that the purpose of s98S and s118 are to make adjustments to previous periods when it is found that the assessments for those periods are based on incorrect information. I assume that this would mostly be used to catch people who withhold information in an attempt to pay less or receive more money than they should be.
Sections 111 and 112 limit the above to periods that occur 18 months to 7 years prior to the date that the application is made under the relevant section. So this has nothing to do with the original application for child support - it is a specific reference to the application made under s111 or s112.
So to sum it up:
1. The start date is the date that the first application for child support is made, or the date that an agreement is first accepted by the Registrar.
2. The start date is fixed because of the definition of "child support period" as provided by s7A and therefore can not be changed by CSA, the Registrar, a Court, or anyone else.
Therefore,
Child support is always payable from a statutory date;
can not be backdated;
and can not be adjusted for any date or period more than 7 years ago.
can not be backdated;
and can not be adjusted for any date or period more than 7 years ago.
That's how I interpret it.
(Still looking if anything else might affect the start date, but haven't found anything yet...)
I agree with the above posts and it was good The Cheese expounded on when CS can start.
In relation to the OP's post, if a person makes a CS application, and the other party refuses to play ball and makes it hard for the mother to prove paternity, then the court has seven years in which can back date the support order but cannot go earlier than the initial application date.
So I prefer to say backdating is possible, because that is how most people perceive/refer to these kinds of cases, however the order cannot be backdated earlier than the initial CS application.
I believe this is important because some people (ie fathers) may think they can't be made to pay any earlier than the time they are proven to be the father. This is not true. Backdating to the initial application for child support is possible if it is <= 7 years.
In relation to the OP's post, if a person makes a CS application, and the other party refuses to play ball and makes it hard for the mother to prove paternity, then the court has seven years in which can back date the support order but cannot go earlier than the initial application date.
So I prefer to say backdating is possible, because that is how most people perceive/refer to these kinds of cases, however the order cannot be backdated earlier than the initial CS application.
I believe this is important because some people (ie fathers) may think they can't be made to pay any earlier than the time they are proven to be the father. This is not true. Backdating to the initial application for child support is possible if it is <= 7 years.
Jordan & Fielding is another s106A that is worth reading and is a bit shorter. In this judgement, FCC Judge Terry takes it as a given that the effect of the s106A declaration will be that child support starts from when the mother first applied. In this case the father is balking at the fact that he'll have 9 months of arrears to pay.
Johnston & Hayward is a good one too, as in that case the mother made 2 applications for child support and both were refused by CSA. In this case, the court looked at the fact that the mother made the application to the court based on the second child support refusal, hence child support should start from the date she made the second application. There is a bit more to it than that, as Judge Scarlett rightly pointed out that its not just Dad's parentage that CSA is concerned about, and that her first application would have been refused even if Dad was on the birth certificate.
Sorry OP for going off on a 106A tangent!
I'm not sure I agree with Rod around the 7 year rule. Scruff is spot on around sections 111 and 112 giving the CSA and Court respectively the power to amend a child support assessment. But a child support assessment has to exist before it can be amended, and statutory provision is that the effect of the s106A goes back to when the application to child support was made.
Johnston & Hayward is a good one too, as in that case the mother made 2 applications for child support and both were refused by CSA. In this case, the court looked at the fact that the mother made the application to the court based on the second child support refusal, hence child support should start from the date she made the second application. There is a bit more to it than that, as Judge Scarlett rightly pointed out that its not just Dad's parentage that CSA is concerned about, and that her first application would have been refused even if Dad was on the birth certificate.
Sorry OP for going off on a 106A tangent!
I'm not sure I agree with Rod around the 7 year rule. Scruff is spot on around sections 111 and 112 giving the CSA and Court respectively the power to amend a child support assessment. But a child support assessment has to exist before it can be amended, and statutory provision is that the effect of the s106A goes back to when the application to child support was made.
actually I think you've been very thorough. The 7 yr reference is in the CSA guide. No doubt a few punters have been stung by their inability in understanding the legislation that they're meant to apply. Kinda proves they are a law unto themselves
I will check those two cases tonight and ruminate on the legislation keeping in mind the various parts and divisions relate to different scenarios (eg declarations, amendments, departures).
If nothing has been paid, it seems like backdating but it's actually "arrears" and I think that's how we should now describe it.
Let's say you have "5yo child -> application for child support -> delay -> application for paternity -> court" and someone pops up here and asks about backdating (so total concern is 5 years + delay). The best answer would be something along the lines of:
"Under the law, child support is payable from the date the original application for child support was made (not the DNA test). So you will likely incur an arrears debt back to that date, but child support can't be backdated beyond that date."
This explains the difference in that they can be hit with arrears for the delay period, but it can't be backdated to birth (the other 5 years).
Similar threads
