Introduction
Q1: If Services Australia already issued an assessment, can I still ask the court to set a different amount?
A: You can, but only through a narrow set of statutory pathways. Section 66E of the Family Law Act 1975 locks the court out of standard child maintenance once an administrative assessment is available, so you have to fit your case into a carve-out such as a section 117 departure, a non-periodic order, or a lump sum. Legal basis: Section 66E of the Family Law Act 1975
Q2: Can a court order my ex to pay child support as a lump sum instead of in monthly payments?
A: A court can capitalise child support into a lump sum, but it is not the default. Judges turn to a lump sum when periodic payments have failed, when a parent is asset-rich but income-poor, or when both parties need a clean financial break, and the discretion comes from sections 123, 123A and 124 of the Child Support (Assessment) Act 1989. Reference: Bass & Bass and Anor [2016] FamCAFC 64
Q3: If I think my ex is hiding income through a trust, can the court look behind their tax return?
A: The court can look at a parent's whole financial picture, not just their taxable income. Section 117(2)(c)(ia) of the Child Support (Assessment) Act 1989 lets the court treat property, inheritances, trust capital and lifestyle as financial resources, so a low salary does not stop a fair assessment. Reference: Yanda & Jacome [2023] FedCFamC1A 116
When does section 66E let the court make child support orders?
Section 66E of the Family Law Act 1975 (Cth) is the gateway that decides whether a court can step into your child support case at all. If Services Australia can issue an administrative assessment under the Child Support (Assessment) Act 1989 (Cth), the court is locked out of making a general child maintenance order. The reason is that parliament wanted a uniform formula-based system to handle the everyday cases, not a courtroom for every disagreement about a few dollars a week.
You only get into court through a carve-out. The four main ones are: a departure proceeding under section 117 of the Assessment Act when the formula produces an unjust result, a lump sum or non-periodic order under Division 5 of Part 7, a declaration of parentage when paternity is contested, and the rare case where a parent is outside the assessment system entirely (for example, a parent living in a non-reciprocating overseas country). The Binding Child Support Agreement under Part 6 Division 4 is a private route to the same effect.
Once a carve-out applies, the court has wide discretion to shape the order. It can choose periodic payments, a non-periodic order targeted at school fees or childcare, a lump sum paid into a child support trust, or any combination of these. The court is not bound by the administrative formula at that point, but it does have to make an order that is just and equitable to both parents and proper for the child.
"The husband achieved, by the making of the consent orders and the establishment of the CST [Child Support Trust], his manifest intention of eliminating any past, current or future administrative assessment of child support for the child."
The husband and wife reached consent orders to set up a Child Support Trust for their child, who had intellectual difficulties and special needs. The husband paid $350,000 into a trust account jointly managed by both parents as trustees. The structure was designed to fund the child's education and tutoring upfront and to take the case out of the administrative assessment system altogether.
Years later the husband argued that the primary purpose of the trust was private school fees. Because the child never attended a private school, he claimed the trust had failed and asked the court to return the remaining $300,000 to him. The wife disagreed and said the surplus should stay in the trust for the child.
Outcome: The Full Court refused to return the money to the husband. The original orders, read as a whole, intended any remaining funds to be held for the child once the trust came to an end. The case shows that once the court has jurisdiction to step outside the standard formula, it can lock in financial protection for a child that a parent cannot easily unwind later.
When can the court depart from a child support assessment under section 117?
Section 117 of the Child Support (Assessment) Act 1989 (Cth) is the main carve-out, and it is what lets a court change your assessed rate when the standard formula produces an unfair result. You cannot just ask the court to redo the maths because you think the number is too low or too high. You must show that there are special circumstances in your case, which means the administrative formula gives a result that is unjust or inadequate when measured against the real-world financial position of the parents.
Section 117(2)(c)(ia) is the most powerful ground in this area. It lets the court look at a parent's actual property and financial resources, not just their taxable income. If your ex shows a low salary on paper but holds significant capital, runs a controlled trust, or has just inherited a large estate, the court can use those resources to justify a departure from the formula. The judge then has to set a new rate that is both just and equitable to the parents and otherwise proper for the child.
In Aitken & Porteus [2009] FMCAfam 783 a $640,000 inheritance was treated as a financial resource even though the parent was not earning a high wage from it. In Blatch (No 5) [2022] FedCFamC1F 651 the court worked through a parent's debts and school fee obligations and made a non-periodic order on top of the regular assessment. These two cases together show how the special circumstances test handles capital on one side and recurring child-related costs on the other.
"In the case of the father and because of his unexplained failure to produce relevant and fundamental financial information, my findings have been based, to some extent, on the drawing of inferences, as I have sought to explain."
The mother of the child applied to the court for an order that the father pay his child support as a lump sum rather than the standard periodic payments. She said his payment history had become sporadic and that the gaps were causing real financial strain on her household as the primary carer.
The father opposed the application. He said he had always intended to pay while he was employed and that the gaps lined up with periods of genuine unemployment. He argued that a lump sum was neither necessary nor proportionate, and that the administrative assessment was the right tool for his situation.
Outcome: The court refused to order a lump sum. While capitalisation is available when a parent refuses to pay or when financial ties need to be severed, it is not a routine substitute for periodic support. Because the father had shown a willingness to pay when he had income, the assessment under the standard formula remained the correct framework.
When will the court order non-periodic child support like school fees or childcare?
A non-periodic order is an order to pay for a defined category of expense rather than a general weekly or monthly amount, which is how the court reaches costs that fall outside the weekly assessment such as private school fees, tutoring, or daycare. Under Division 5 of Part 7 of the Child Support (Assessment) Act 1989 (Cth), the court can make a non-periodic order even if the dollar value goes beyond the underlying administrative assessment. If your assessment is $200 a week but the child's school fees come to $500 a week, the court can order the other parent to pay the school directly on top of the base support.
Section 125 then gives the judge discretion to decide whether a non-periodic payment is credited against the periodic assessment. The judge can give a full credit, a partial credit, or no credit at all. In Yanda & Jacome [2023] FedCFamC1A 116, for example, the father was ordered to pay $1,044 a week in private school fees on top of his periodic assessment of $481 a week.
The drafting of childcare orders matters more than most people realise. Under section 44(1)(c) of A New Tax System (Family Assistance) Act 1999 (Cth), eligibility for the Child Care Subsidy depends on whether you are legally liable for the session of care. A court order that says one parent is responsible for childcare costs does not by itself create a legal liability to the childcare centre. Whoever signed the enrolment contract is the one liable, and that is the only parent who can claim the subsidy.
Common misconceptions:
- Incorrect: The court can step in any time you disagree with the Services Australia assessment.
- Correct: Section 66E locks the court out unless your case fits a specific carve-out such as a section 117 departure, a lump sum order, or a non-periodic order under Division 5 of Part 7.
"I am satisfied that it is just and equitable and otherwise proper to make the order sought by the wife and that the amount to be paid equals or exceeds the annual rate of child support payable for the children pursuant to the assessment."
The father and mother had consent orders saying the father would be solely responsible for the cost of the child's daycare. The father paid the daycare directly and then claimed the Child Care Benefit from Centrelink for the 2017 financial year, on the assumption that the court order made him the liable parent.
The mother had signed the enrolment contract with Avenues, the childcare provider. Centrelink rejected the father's claim on the basis that he was not the parent who had incurred a legal liability for the care. The provider could only sue the mother if the fees went unpaid, because she was the one in a contractual relationship with the centre.
Outcome: The court dismissed the father's appeal. A court order that allocates a cost between parents does not, on its own, create a third-party liability to the business that provides the service. The father paid the fees out of his own pocket and lost access to the subsidy because the order did not change who was actually liable for the care.
When will the court order a lump sum or accept a binding child support agreement?
There are two main ways child support gets capitalised: a court-ordered lump sum, or a private Binding Child Support Agreement. Sections 123, 123A and 124 of the Child Support (Assessment) Act 1989 (Cth) let the court turn a future stream of periodic payments into a single up-front amount. The money can be paid directly to the other parent or held in a child support trust that draws down over time. The aim is to take a long-running maintenance obligation and turn it into capital that does not depend on the paying parent's day-to-day cashflow.
Part 6 Division 4 sits alongside this judicial power and lets you and the other parent enter a Binding Child Support Agreement. This is a private contract where both of you set the payment terms, which can include lump sums, school fees or trust distributions. Once registered, the agreement replaces the standard administrative assessment until it is ended.
The court generally turns to a lump sum in three scenarios. The first is persistent enforcement difficulty, where you have been forced back to court repeatedly because the other parent refuses to pay or pays late. The second is the asset-rich but income-poor profile, where a parent has significant capital but reports very little taxable income. The third is the clean-break scenario, where the level of conflict is so high that severing the financial link between parents protects the children better than year-on-year payments. In each of these scenarios the court looks closely at the financial reality behind a parent's stated position rather than accepting a low declared income at face value.
"One of those debts, which he does not acknowledge, is the child support debt. His duty to support his children has priority over his other liabilities other than the need to support himself."
The mother of four children applied under section 123A for $10,000 to be paid as a lump sum and credited against the father's existing child support assessments. The father had been in prison until November 2011 and remained unemployed at the time of the hearing. He had no current income, but his solicitors were holding $35,304 in a trust account from a property sale that had occurred while he was incarcerated.
The father argued that his debts, including a substantial tax debt and a private loan, were larger than the money in the trust. He wanted those creditors paid before anything went to child support, on the basis that he needed the balance to support himself while he looked for work.
Outcome: The court ordered $10,000 from the trust to be paid as a lump sum for the children. Section 3 of the Child Support (Assessment) Act 1989 (Cth) puts the duty to maintain your children ahead of almost every other commitment, including ordinary commercial debts and tax debts. Because the father was already supporting himself without touching the trust capital, the funds were available to be applied to his child support obligation first.
What if the other parent is hiding assets or has unreal income?
When a parent's tax return does not reflect their real ability to support their children, section 117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth) is the key provision the court turns to. It lets the court take into account a parent's actual property and financial resources, not just their taxable income. That includes capital they hold, capital they control through a family trust, inheritances they have received or are about to receive, and lifestyle indicators that do not match a low declared income.
Common patterns the court watches for include staged unemployment around the time of a separation, shifting business income through a trust so it never lands in the parent's personal tax return, and arranging affairs so that significant capital is technically held by a relative or a corporate trustee. Section 3 of the Assessment Act puts the duty to children ahead of nearly every other commitment, so a parent cannot justify a low payment by pointing to commercial debts they have voluntarily taken on.
The evidence the court relies on is usually a combination of bank statements, property records, business records, lifestyle evidence (overseas travel, expensive purchases, school fees actually being paid for new partners' children), and the parent's failure to produce documents the court has asked for. As Aitken & Porteus shows, the court is willing to draw inferences against a parent who keeps fundamental financial information out of the file.
"It may be that the level of capital assets compared to actual or imputed income from them, together with any other income, is such that the calculation of a proper level of child support that ensure children have their proper needs met from capacity, property and financial resources of both of their parents requires that the capital directly influence the quantification of the amount of child support."
The father was a medical practitioner. The primary judge found his weekly income was around $7,000 and set a periodic child support assessment of $481 a week. The judge then made a non-periodic order on top of that, requiring him to pay $1,044 a week in private school fees for the two children.
The father appealed. He argued that the school fees should have been credited against his periodic assessment under section 125, and that the primary judge had failed to take into account a verified tax debt of $118,896 when calculating his actual capacity to pay. He said the order, taken together, exceeded what he could realistically afford once that debt was factored in.
Outcome: The Appeal Court allowed the appeal and remitted the matter for rehearing. The court has wide discretion to order non-periodic payments that exceed the assessment, but it has to look at the parent's full financial picture, including significant debts. The financial resources test cuts both ways: the court can look behind a low income to find assets, but it also has to weigh real liabilities when setting what a parent can pay.
What should I do if I think my child support assessment is wrong?
If you think the administrative formula is producing the wrong number, here is the practical order to work through.
- Apply for a Change of Assessment through Services Australia first. The administrative process is free and faster than court. It can deal with special circumstances such as hidden income, high costs of caring for a child, or a parent's actual financial resources, all without a lawyer.
- Work out whether your issue actually needs a court. Court is the right venue if you need a lump sum, you need a non-periodic order for school fees or childcare, the assessment in dispute is more than 18 months old, or the financial structure is too complex for Services Australia to unwind on its own (for example, controlled trusts or overseas assets).
- Build the evidence before you file. Collect bank statements, property records, trust documents, payment history, and any lifestyle evidence that contradicts the other parent's declared income. The court is willing to draw inferences against a parent who hides documents, but only if you put the gap on the record.
- Consider a Binding Child Support Agreement if you can negotiate. If you and the other parent can agree on terms, a Binding Child Support Agreement under Part 6 Division 4 can lock in school fees, lump sums or trust arrangements without litigation. It needs independent legal advice on both sides to be valid.
- Get advice before you file in court. Departure proceedings, non-periodic applications and lump sum applications each have their own procedural rules and evidence standards. Filing the wrong type of application can cost you months, and as Yanda & Jacome shows, even successful orders can be sent back for rehearing if a relevant debt is overlooked.
If you want to dig deeper into a specific pathway, see Child Support: Debts, Inheritance and Private School Fees for how the court handles section 117 departures driven by debts and inheritances, What Is a Child Support Trust? Lump Sum Payments in Australia for how lump sum orders and Child Support Trusts work in practice, and Adult Child Maintenance in Australia: Eligibility and Why Applications Fail if your child is over 18 and you are considering an application under section 66L.
Summary
- Section 66E locks the court out by default. You stay inside the administrative assessment system unless your case fits a specific statutory carve-out.
- Special circumstances under section 117 are a real test, not a formality. The court needs evidence that the formula gives an unjust or inadequate result in your actual financial position.
- Non-periodic and lump sum orders are powerful but exceptional. Courts reserve them for school fees, childcare, persistent non-payment, or asset-rich-income-poor parents.
- Hidden assets do not stay hidden when the court looks at lifestyle and capital. Property holdings, inheritances and controlled trusts count as financial resources under section 117(2)(c)(ia).
- Get advice before you go to court. The wrong application type or a missing piece of evidence (like an unpaid tax debt) can cost you months and a costly rehearing.
