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Child Support Child Support

Child Support Lawyers in Melbourne

Family breakdown is a very difficult time for a child, or children, and there are many issues that need to be considered to ensure that decisions are made in the child’s best interests. When parents separate, proper arrangements need to be made for the ongoing financial, physical and emotional support of their children. The obligations of parents to provide financial support of their children are governed by the Child Support Scheme.

Child Maintenance in Australia

Child Support means financial support for children under the Child Support (Assessment) Act. Based on the child support laws in Australia, child support usually takes the form of regular periodic payments, but it can also include lump sum payments. A lump sum payment may be made by way of the payment of specific expenses or the transfer of property.

Child Support payments are made by one parent to the other (or an eligible career) to help with the costs of a child. Child Support payments are separate from Centrelink or family assistance payments. However, Child Support payments can affect the amount paid by Centrelink and the Family Assistance Office.

Child Support can be arranged:

  • by agreement between parents or
  • through the Child Support Agency.

Child Support can be collected:

  • privately or
  • by the Child Support Agency.

Top Child Support Lawyers

The lawyers at Mathews Family Law & Mediation Specialists Melbourne are experienced in dealing with a variety of Child Support and parenting cases. 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. We can also assist you in negotiating and finalizing a private agreement for Child Support.

If you are looking for a child support payments, connect with us at Mathews Family Law and Mediation Services.

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IAFL Global Comparison of LGBT Laws

The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.

The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.

The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT community throughout the world and the end to rules that unfairly discriminate against such individuals and, in many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of some members for the benefit of the IAFL as a whole and the LGBT community.

The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are included.

The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46 jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’

Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.

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Child Support Child Support

Child Support – The Basics

Child Support can be sought via the Child Support Agency or a Child Support Agreement. Legal and adoptive parents will be recognised as having parental responsibilities towards the child.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the legal parents of children of marriages also apply to the legal parents of children of same sex couple relationships. A partial resolution to this issue is for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.

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Child Support Child Support

Child Support – The Details

As you and your spouse separate and divorce, child support will be a one of the issues you will need to address. The primary purpose of child support is to guarantee that children’s day-to-day needs will be met through regular periodic support payments. Additionally, child support allows children to enjoy the same or similar standard of living of their parents. Child support can be arranged by agreement between the parents, or through an administrative assessment conducted by the Child Support Agency (CSA).

Child Support Agreements

Often the best way to arrange for child support is through an agreement between the parents in the form of a child support agreement. This method allows parties to deviate from the formula used in the administrative assessment used by the CSA to determine support. There are two types of agreements that may address child support: a binding child support agreement and a limited child support agreement.
Child support agreements are considered binding if both parties to the agreement were given independent legal advice (from separate counsel), and the agreement must state that this is in fact the case. Additionally, the counsellor who administered the legal advice must also execute and sign a certificate, which is included in the agreement. A binding child support agreement can be for any amount – including an amount less than prescribed under the CSA formula.
Unlike a binding child support agreement, a limited child support agreement does not require that the parties obtain independent legal counsel. The only requirements for this type of arrangement are that the agreement be in writing, signed by both parties, and that the amount agreed to is at least equal to the amount payable under the child support agency formula.
It is not possible to modify or alter a child support agreement; rather you must terminate the agreement and enter into a new one. The Child Support Assessment Act provides for several ways to terminate a child support agreement:

  • by entering into a fresh agreement
  • by agreement in writing
  • a court order
  • a new notional assessment, and
  • simply if the agreement is three or more years old.

Child Support Agency and Administrative Assessments

Should you and your former spouse be unable to reach an agreement and execute either a binding or limited child support agreement, you may arrange for child support through the CSA. In order to obtain this, you must first make an application for administrative assessment of child support. The assessment will be made using the appropriate formula and can be subject to private enforcement or registered for collection through the CSA.
Administrative assessments are calculated by using a formula that requires parents to share in the support of their children and is based upon the level of care provided as well as their respective incomes. The various applicable formulas take into consideration a child support income amount, adjusted taxable income, self-support amount, and relevant dependent child allowance, among other figures. There are six formulas available, although the most common is “formula 1.”

The steps to determine formula 1 are as follows:

  • Calculate each parent’s daily child support income for the child
  • Calculate the parents’ daily combined child support income for the child
  • Calculate each parent’s daily income percentage for the child
  • Calculate each parent’s daily percentage of care for the child
  • Calculate each parent’s daily cost percentage for the child
  • Calculate each parent’s daily child support percentage for the child
  • Calculate the daily cost of the child
  • If a parent has a positive child support percentage under step 6, the annual rate of daily child support payable by the parent for the child is calculated by using this formula:

Parent’s daily child support percentage for the day

X (multiplied by)
Costs of the child for the day
Formulas 2, 3, 4, 5, and 6 are less common. They are variations provided to consider non-parent careers, non-resident parents, multiple cases, and special circumstances or deceased parents.
Should any of the elements used in the formula change, the CSA should be notified so that the child support amount may be recalculated.
It is possible to be awarded an amount that is inconsistent with the administrative assessment of child support. If you are seeking a departure from the assessment you simply need to fill out a form and submit it to the CSA who will then schedule a conference to hear the parties. A written decision is ultimately provided to both parties. In determining whether a departure is proper, grounds for such must be established, it must be just and equitable, and it must be deemed otherwise proper, and there must be a special circumstance. The Child Support (Assessment) Act 1989 has enumerated ten types of special circumstances:

  • Costs of caring for a child. It costs you more than 5% of your child support income amount to spend time with the children.
  • Special needs of a child. It costs you extra to cover the children’s special needs.
  • Manner expected by the parents. It costs you extra to care for, educate or train the children in the way that you and the other parent intended.
  • Income and earning capacity of the child. The child support assessment does not take into account the income, earning capacity, property or financial resources of the children.
  • Money, goods, or property from the payer for the benefit of the children. The children, the payee or someone else has received, or will receive money, goods, or property form the payer for the benefit o the children.
  • High costs of child care. You are the payee, you have sole care of the children, an it costs you more than 5% of your child support income amount for the child care for children younger than 12 years of age at the start of the child support period.
  • Necessary expenses in self-support. You have necessary expenses in supporting yourself that affect your ability to support the children.
  • Income, earning capacity, property or financial resources of one or both parents. The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both parents.
  • Legal duty to maintain another person or other children. You have a legal duty to maintain another person or other children not included in the child support assessment, and it costs you: more than 5% of your child support income to have contact with that person or those children, extra to cover the special needs of that person or those children, extra to cover the necessary expenses of that person or those children.
  •  Additional income. You have earned additional income for the benefit of resident children.

A child support assessment ends upon a child support terminating event. Such an event can occur when the child turns 18, when the child is adopted, or when the child, career or liable parent dies among other events.

Alternative Payment Methods

While it is most common to receive child support in periodic payments, it is also permissible to receive it in a lump sum payment. The most common situations where lump sum orders are considered are where there are difficulties in enforcement or where the liable parent is asset rich and income poor, although there are many other situations in which a lump sum could be awarded.
Another payment method that has been gaining in popularity is a combination of the periodic payment and lump sum concepts. This results when the liable parent deposits the sum to be held on trust and distributed as child support liabilities accrue.
Finally, a party does have a right to make objections regarding decisions made by the CSA. The objecting party must lodge the objection 28 days from service of the decision, and a decision regarding the objection will be made within 60 days. Additionally, there is a formal process available to allow parties to appeal an objection decision. 

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Child Support Considerations

Child Support Enforcement and Collection

1988 Changes

 Australia has come a long way when it comes to child support enforcement. In 1988, les than 30% of child maintenance was paid, and in response, Australia passed the Child Support (Registration and Collection) Act. This required child support obligations to be registered, and thus become a debt to the Commonwealth. Prior to making this change, child support collection was a major issue for many Australians.

The legislation was passed in hopes of ensuring that children receive child support on a regular and timely basis. Fortunately, since the Act was passed non-payment issues have decreased significantly.

Registration

Child support, child maintenance, and spousal maintenance may all be registered for collection. Once registered, and the details entered into the child support register, the Child Support Agency (CSA) may enforce payment. When payment is not timely, the CSA reserves the right to impose penalties, which are retained by the CSA and not given to the payee.

This registration process is how the liability becomes a debt to the Commonwealth, and thus enforceable by the CSA. The CSA can enforce child support using the traditional court enforcement process.

Enforcement

A payee may enforce child support payments even if the debt has been registered for collection. As long as the payee notifies the Registrar in writing, 14 days before instituting the proceeding, the payee may sue and recover the debt due. A shorter notice period may be appropriate if there are exceptional circumstances.

Alternatively, the CSA may use the Federal Magistrates Court to enforce child support payments. Under these proceedings the court is not permitted to vary the child support liability or remit any penalties, the proceedings are strictly intended to be enforcement summons. The court is charged with the task of making an inquiry into the financial circumstances of the payer, and subsequently assessing his or her ability to pay the arrears.

Once the debt has been proved, the court may enforce the payment through a variety of methods, including garnishment, seizure of property, sequestration of the estate, sale of an interest in real property, or any other method necessary.

Collection Methods

The CSA has several methods it may use to enforce collection of child support payments. They are as follows.

  1. Auto-withholding. Under this method, payments owed are deducted from the payer’s salary directly by the employer.  Payers of child support may be averse to this sort of collection, as they would rather not share their child support liability with their employer, however it is considered an offence for an employer to discriminate based on such.
  2. Attachment of debts. The CSA has the authority to attach debts owed to the payer, including a tax refund. They may do this after fist issuing a notice to the debtor (one owing the payer money).
  3. Departure prohibition orders. Such orders prevent payers owing money from leaving the country.

In sum, there are several ways in which you can ensure any child support obligation due to your child will be paid. Thanks to the legislation passed in 1988, non-payment issues have been on the decline as it provides for easy and effective ways to enforce and collect payments owed.

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Child Support Paternity & Child Support

Determining Paternity and the Impact on Child Support

The issue of paternity can sometimes present problems for a party who is seeking child support from someone who is claiming not to be the father of the child. While the court does not have power to order paternity testing simply to satisfy doubts of a parent, the court may order such testing where the parentage of a child has been at issue in proceedings. There must be some evidence that places the issue of paternity in question before the court will order testing.

If paternity is disputed in your case, you may make an application directly to the court seeking a declaration. If the parties have not agreed to parentage testing, the court will order the parties to do so in order to resolve the issue and make a declaration.

Once paternity has been determined, either through parentage testing or by the court’s determination, the court may make a declaration of parentage that is considered conclusive and binding for all future hearings. Additionally, upon establishing parentage, a party may seek child support through the regular process.

Impact on Child Support

Paternity tends to be at issue in child support disputes more than any other area in family law. The reason for this is that the Family Law Act provides that only a “parent” may be liable to pay child support. It may come as a surprise, but determining if someone is a “parent” by definition is often difficult. Recent cases have addressed the complexity of determining parentage in same sex couples, as well as couples who use artificial conception.

Unfortunately, because only a parent is liable for child support, it is not uncommon for an alleged father to dispute paternity in hopes of avoiding this liability. The Family Law Act has provided a list of circumstances in which paternity can be assumed, however the challenging party may still dispute the assumption.

Paternity is to be assumed by the Child Support Agency where the birth certificate names the father, if the child was born during marriage, the person’s name is found in a register of births, a court has found that the person is the parent, the person has executed an instrument acknowledging parentage, or the child has been adopted by the person.

Who can be ordered to undergo testing?

Anyone who is at least eighteen years old may be asked to undergo parentage testing, regardless of whether they are a party to the proceedings. The court is granted broad discretion in this area, and may order anyone whom it believes could aid in determining the parentage of the child to undergo testing.

Should the party asked to take a paternity test be less than eighteen years old, his parent or guardian will have to provide consent. If the parent or guardian fails to provide consent, this action alone could have an impact on the case. In a situation where the parent or guardian refuses to consent to the testing, the court is permitted to draw conclusions as it sees fit. Refusal, however, is not automatic grounds for the court to conclude paternity; the court is still required to consider the circumstances for the refusal, such as religious or cultural reasons.

Methods of Testing

There are several ways to test parentage. Provisions in the Family Law Act discuss in detail the procedures to be followed in prescribing a parentage test; the methods range from blood group testing to genetic fingerprinting. The court is given discretion with regard to this testing and may impose any terms or conditions it sees fit, including requiring a person to submit to a medical procedure, provide a bodily sample, or disclose a medical or family history.

DNA testing formerly required a blood sample, however now the kit can be completed from using a swab from the inside of the cheek. DNA testing is both painless and accurate, typically showing a probability of parentage of at least 95%.

An accredited laboratory must carry out the test, and a list of those laboratories can be found at