Child Support

Posted in: Family Law Thursday, 16 August 2018

child supportThe Child Support Scheme was introduced in 1988 in response to concerns about the adequacy of court-ordered child maintenance and the difficulties that existed in the collection of child maintenance in Australia.

The Child Support Agency (CSA) was set up to administer the assessment and collection of child support under the child support scheme (the scheme).

In 2011, the CSA became one of the master programs of the Department of Human Services. It is no longer an independent government agency.

Child support is now a service delivery brand within DHS and is responsible for administering the child support scheme.

The aim of the scheme is to ensure that children receive an appropriate level of financial support from parents who are separated.

DHS assists parents and carers to apply for a child support assessment and facilitates the collection and transfer of child support payments.

More information about the services provided by DHS to separated families can be found on the Human Services website.

Child support can be confusing. CLO Lawyers is a Child Support Law Firm. Our child support lawyers can assist you to understand the scheme and how your Child Support Assessment is calculated. We can also advise about Change of Assessment Applications and collection issues.

Many parents agree on their own arrangements for child support, particularly in relation to private school fees, special medical expenses and extra-curricular activities. Some parents also agree on payment of lump sum child support.

Your dedicated child support solicitor at CLO Lawyers can advise you about arrangements appropriate to your circumstances and formalise those arrangements through a Child Support Agreement.

What is a child support assessment?

Child support payments are calculated according to an administrative formula that uses a shared income approach and is based on research into the cost of raising children in Australia.

The formula:

  • uses the combined income of both parents to calculate child support payments;
  • excludes the same self-support amount from both parents’ incomes, treating them in the same way;
  • calculates child support payments based on the costs of raising children, according to the incomes of both parents;
  • and recognises both parents' contributions to the cost of their children through care.

If parents feel that the formula does not reflect the special circumstances of their case, they may apply to DHS for a change of assessment. Under this process, DHS can examine the broader financial circumstances of both parents and make a decision to depart from the formula assessment.

Parents may also choose to negotiate their own child support arrangements through a child support agreement. Agreements can specify the amount, frequency and method of payments but must meet the requirements of the legislation in order to be accepted by DHS.

How are child support payments made?

Child support payments can be transferred privately, or DHS can collect and transfer the payments on parents’ behalf.

Where payments are not made voluntarily, DHS has a range of powers to enforce the collection of child support. These include deducting child support from a parent’s salary or wage; intercepting tax refunds; collecting from third parties such as banks; deducting payments from social security and other government payments; preventing a person from leaving Australia without paying the debt or making a suitable payment arrangement; and litigation action to recover a child support debt in any court with family law jurisdiction.

Can you reach an agreement about child support arrangements?

Regardless of when your child was born, if you agree about the child support arrangements, you can make your own arrangements for child support. You do not have to apply to The Department of Human Services or the Federal Circuit Court when making arrangements for child support.

Making a child support agreement

If you and the other parent agree about how your child should be supported financially, you can make a legally enforceable child support agreement.

Child support agreements set out in writing the amount, frequency and method of child support payments. Child support agreements make sure the child receives a proper level of financial support from their parents.

There are two types of child support agreements:

  • limited agreements
  • binding agreements.

Your child support solicitor at CLO Lawyers will help you negotiate an agreement that takes into account your unique circumstances and those of your child.

Limited Child Support Agreement

A limited child support agreement (limited agreement) is a written agreement signed by both parents about the amount, frequency and method of child support payments.

To make a limited agreement:

  • there must be an administrative assessment in place
  • the amount of child support to be paid under the agreement must be equal or greater than the assessment.

The agreement can be ended:

  • by making another limited or binding agreement
  • if both parents agree in writing
  • if the notional assessment changes by more than 15% (then either parent can choose to end the limited agreement)
  • by either parent after 3 years by a court order.

You should get legal advice from your child support lawyer at CLO Lawyers before making or ending a limited agreement.

Binding child support agreement

A binding child support agreement (binding agreement) is a written agreement signed by both parents about the amount, frequency and method of child support payments.

Unlike a limited agreement, a binding agreement can be made and accepted even if a child support assessment hasn’t been made. It can be made for any amount both parents agree on. It could be less than, equal to, or more than the child support rate payable under an administrative assessment.

To make a binding agreement:

  • both parents must get independent legal advice on the advantages and disadvantages of entering into the agreement
  • the lawyer for each parent must sign a certificate stating legal advice has been given
  • the lawyer’s certificates must be attached to the agreement.

The agreement can be ended:

  • in writing by both parents
  • by making another binding agreement
  • by a court order.

You must get legal advice before ending a binding child support agreement.

If you can’t agree on child support payments, you can apply to the Department of Human Services (Child Support) for an administrative assessment.

Contact CLO Lawyers, your child support law firm, to discuss the process and requirements associated with entering into a binding agreement.

Are there circumstances in which you can apply to for a change of the child support assessment?

DHS can change your child support if they are satisfied there are special circumstances and the change would be fair to both parents and the child.

The 10 reasons for a change of assessment application are listed in the child support legislation. The Registrar can only change an assessment if one or more of 10 listed reasons is established 'in the special circumstances of the case'.

There are 10 reasons for a change of assessment:

  • The costs of maintaining a child are significantly affected by high costs of enabling a parent to spend time with, or communicate with, the child
  • The costs of maintaining a child are significantly affected by high costs associated with the child's special needs
  • The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended
  • The child support assessment is unfair because of the child's income, earning capacity, property or financial resources
  • The child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child
  • The costs of maintaining a child are significantly affected by the high child care costs for the child (and the child is under 12 years of age)
  • The parent's necessary expenses significantly affect their capacity to support the child
  • The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents
  • The parent's capacity to support the child is significantly affected by:
    their duty to maintain another child or person,
    their necessary expenses in supporting another child or person they have a duty to maintain,
    their high costs of enabling them to spend time with or communicate with, another child or person they have a duty to maintain
  • The parent's responsibility to maintain a resident child significantly reduces their capacity to support the child support child

If one of the reasons for a change of assessment is established, the Registrar must also consider whether changing the assessment would be 'just and equitable' and ' otherwise proper'.

Your child support solicitor at CLO Lawyers will provide you with information regarding the legal basis for an application for a change to your child support assessment. CLO Lawyers can also assist you to reach agreement with the other party regarding a change to the child support assessment and if required, assist you with an application taking into account your unique circumstances and those of your child.

The jurisdiction of the court

The Court only has the power to hear certain types of child support applications and appeals. In most situations, parents or eligible carers must first satisfy all administrative requirements with the Department of Human Services.

You should seek legal advice before deciding what to do.

Your child support solicitor at CLO Lawyers can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Your dedicated child support lawyer can also help you reach an agreement with the other party without going to court.

Court Applications

The Court can hear:

  • an application for a declaration that a person is or is not a parent of a child for the purposes of paying or not paying child support
  • an application for recovery of child support paid when a person is not liable to pay child support
  • an application for leave to depart from an administrative assessment for a period over 18 months but less than seven years ago
  • an application for child support to be paid in a form other than periodic amounts (or an application to discharge, suspend, revive or vary a previous court order about child support)
  • an application to set aside a binding child support agreement if the agreement was obtained by fraud, undue influence or duress or there are exceptional circumstances
  • an application to set aside a limited child support agreement if there has been a significant change in circumstances of one of the parties or the annual rate of child support is not proper or adequate 
  • an urgent application for the payment of child support
  • an application for a stay order, which is a temporary order that suspends or reduces the payment of child support until a final order is made. From 1 July 2008, stay orders can address a specific collection action of the DHS. For example, a stay order could:
    -order the DHS to cease collecting from a payer's salary;
    -order the DHS to withdraw or modify a garnishment notice;
    -order the DHS not to collect a payer's taxation refund;
    -order the DHS not to disburse monies held to the payee; or
    -order the DHS to cease any and all administrative collection.
  • an application about child maintenance or overseas child maintenance orders an application to recover a child support debt by the Child Support Registrar or payee an application by the Child Support Registrar to set aside a transaction (or restrain a person from entering into a transaction) to reduce or defeat a maintenance liability.

What is the end date for child support assessments in Australia?

In Australia, the end date for child support assessments occurs when the child turns 18. However, it may be extended where a parent has applied for child support to continue until the end of the school year in which the child turns 18.

Useful links to information regarding child support in Australia:
Family Court Website.
Australian Department of Human Services.
Contact your child support law firm – CLO Lawyers
Contact your child support lawyers Murray Crawford and Sarah Marsden today on 07 4631 9000
Visit our Family page for more information about Family Law.

About the Author

Murray Crawford

Murray Crawford
Director
 | BEc, LLB, LLM (Applied Family Law)

With a passion for the law and a strong social conscience, Murray is a strong advocate who’s focused on achieving positive outcomes for his clients and supports the community through leadership positions with several not-for- profit organisations.

For more information about him, see details here.

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