Author: Vanessa Mathews

A Binding Child Support Agreement takes the form of a Binding Financial Agreement, but it relates to child support. Binding Child Support Agreements can only be entered into after both parties have received legal advice from separate lawyers. Such advice is also required before terminating an agreement.

The amount payable under a Binding Child Support Agreements can be for any amount, including amounts that are less than the amount payable under the Child Support Agency formula. A Binding Child Support Agreement differs from a Limited Child Support Agreement in this respect, a Limited Child Support Agreement must include an amount at least equal to, or more than the amount calculated by the Child Support Agency formula.

Any changes to Consent Orders must be in the best interests of the child, considerations for how the changes affect the parents are secondary.

Binding Child Support Agreements can be changed by agreement (when both parents agree to change) or by Court Orders (when only one parent requires change).

There are two types of Child Support Agreements: Binding Child-Support Agreements and Limited Child Support Agreements.

Child Support Agreements can provide for financial support in various ways such as the payment of school fees, health insurance premiums or mortgage repayments, as well as periodic cash payments.

A Child Support Assessment can be changed by entering into a Child Support agreement. Such an agreement should be signed and in writing.

Where there has been no Child Support Assessment there may be a private Child Support Agreement or the parents may have their Child Support Agreement registered with the Child Support Agency.

Some parents may prefer for the Child Support Agency to work out the amount to be paid, but the amounts may be transferred privately. Private collection is recommended in cases where the payer is likely to pay or has a good payment history

Where parents make their own arrangements for the payment of Child Support, it is important to maintain a record and/or receipts for all payments made or received, these receipts should be retained in order to avoid disputes.

Payments can be collected by the Child Support Agency. Both parents may prefer this option or in situations where the parent liable to pay child support is failing to pay. Notification to the Child Support Agency creates an ‘enforceable maintenance liability’. The Child Support Agency has broad powers to collect child support debts including collecting from wages, intercepting tax refunds and collecting money from bank accounts. If payments are not made on time and in full, late payment penalties can be charged.

If parents agree, they can end a Child Support agreement at any time by making a further agreement terminating the earlier agreement, but independent legal advice is required for an agreement terminating a Binding Child Support agreement.

There is a principle that government contributions should not replace financial support from parents. To be entitled to claim Family Tax Benefit Part A for a child, a person must be caring for the child for at least 35% of the time. Family Tax Benefit Part A is affected by the amount of income a family receives and the amount of Child Support that is received for each child.

Your Family Tax Benefit Part A may be worked out using a different amount than the Child Support amount in your private agreement. Where a Child Support Agreement is in place, Family Tax Benefit will be paid on the basis of the Child Support that would have been payable if the agreement had not been made (the notional assessment).  This can be an issue with Binding Child Support Agreements where the amount payable is less than the amount calculated by the Child Support Agency

Child Support can be determined by agreement between parents or through the Child Support Agency.

Where parents can agree, the Child Support Agency does not have to be involved. However, some parents may prefer for the Child Support Agency to work out the amount to be paid, but they may choose to transfer amounts privately. Private collection of a child support formula assessment can also affect Family Tax Benefit Part A entitlements.

If the Child Support Agency is asked to provide a Child Support Assessment it is calculated according to a formula. The formula requires both parents to provide financial support of their children as far as they are able to do so. The formula considers research on the cost of raising children, parental income, other dependent children and time spent with each parent. An online child support estimator can be found on the CSA website.
Sometimes the formula produces a result which is not appropriate. This might happen if a parent has lost their job since the assessment was made or the child has special needs or because the child is attending a private school. The Child Support Agency can be asked to change the assessment.

If you are not happy with a decision made by the Child Support Agency, it is possible to challenge the decision. An internal review process, a right to apply to the Social Security Appeals Tribunal for a review or a right to go to court could each be options depending on the nature of the decision.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne are experienced with helping parents to work through both the financial and practical issues involved in an agreement for Child Support. We can help to ensure proper arrangements are made for the ongoing financial, physical and emotional support of your child or children. We can assist you with dealing with the Child Support Agency, whether you are making an application for child support or are disputing a decision made by the Child Support Agency.

Mathews Family Law is a leading family law firm in Melbourne. Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

If a father gets a Child Support Assessment notice from the Child Support Agency to pay child support, but disputes being a parent of the child, it is possible to apply to Court. It is necessary to apply within 56–60 days of receiving the assessment. The time limit depends on which court you use. Get legal advice if you wish to question an assessment.

If the father disputes parentage, the father can be asked to sign a document agreeing he is the father, or to take a parentage test. If the father refuses, it is possible to get a Court Order for parentage testing. The Court cannot physically force parentage testing, but in the absence of test results the Court can make a decision to name the father. These steps can be avoided if there is a ‘presumption of parentage’. It may help to seek legal advice on whether this presumption applies in your situation.

Parentage will be presumed if:

• the child was born during a marriage,
• the parents lived together for a certain time before the child was born (if this applies to you, it is important to get legal advice),
• a person is named as a parent during court action or on a birth certificate,
• a person has signed an ‘acknowledgment of paternity’ or
• a person has adopted the child.

Parentage can be proved in three ways:

• a statutory declaration can be signed agreeing paternity,
• the Registry of Births, Deaths and Marriages can be informed by the parents that their names should be on the birth certificate or
• a Court can make an order to allow for a Child Support Assessment to be made because a person is a parent of the child.

For a non-parent career to receive Child Support, they must be an eligible career.

An eligible career is somebody who has shared care of the child. To receive Child Support a non-parent must meet the following requirements:

• if a parent is overseas (and the required steps have been taken for parents living overseas), or the parent has died, or
• the applicant should not be living with or be a partner of any of the parents.

If the parent (or legal guardian) of a child indicates that they do not consent to the person caring for the child, then the non-parent carer will not be considered an eligible career. This requirement does not apply where it is unreasonable for a parent to care for a child.

It is unreasonable for a parent to care for their child when:

• there has been extreme family breakdown or
• there is a serious risk to the child’s physical or mental wellbeing

Parents of the child include biological parents, adoptive parents and people who have become parents as a result of adoption or an artificial conception procedure.

Parentage will be presumed if:

• the child was born during a marriage,
• the parents lived together for a certain time before the child was born (if this applies to you, it is important to get legal advice),
• a person is named as a parent during court action or on a birth certificate,
• a person has signed an ‘acknowledgment of paternity’ or
• a person has adopted the child.

A step-parent of a child cannot be the subject of an application for a Child Support Assessment, but it is possible to apply for a Court Order requiring a step-parent to provide financial support for their step-child. The court must be satisfied that the step-parent has a duty to maintain the child before it will make an order.

A child is no longer eligible when they turn 18, although they can continue to receive Child Support until the end of the school year if they are in school.

A child who is married or living in a de facto relationship is not eligible for Child Support. A child who is adopted will also no longer be eligible to receive Child Support payments.

Another exception applies where the person entitled to receive payments passes away. It is possible to specify in an order that it is to remain in force after the death of the person entitled to receive payments. The order must also specify who is to receive the payments upon the death of the person originally entitled to receive the payments.

Children who are under the care of somebody, as specified by a child welfare law, are excluded from Child Support.

The Child Support Scheme covers all children living in Australia whose parents have separated. It does not matter whether the parents were ever in a relationship and it is not relevant whether a parent spends time with their child or not. There are arrangements with certain countries for the collection and payment of Child Support, if one of the parents live in that country.

If a child turns 18 during their last year at school then that child is eligible for child support until they complete the school year. A child who is married or living in a de facto relationship is not eligible for Child Support.