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 – 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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What is child support?

Child support means financial support for children under the Child Support (Assessment) Act. Child support is paid by regular periodic payments, but also may be paid by lump sum payment, payment of specific expenses or by transfer or settlement of property.

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Who can be classified as a parent of a child?

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.

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Who can receive child support, other than parents?

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
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Determining Child Support

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.

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Child Support after Divorce

Under Australian family law, child support following a divorce is governed under the Child Support (Assessment) Act of 1989. Child Support Agency is the institution responsible for evaluating how much child support should be paid and also for collecting it from the parent. This agency falls under the control of the Department of Human Services. The Child Support Agency performs functions such as evaluation upon receiving an application from the parent who has custody of children. A specific formula is being used to determine the amount of child support that the other parent is liable to pay.

The formula takes into account a number of factors such as the annual income of both the parents, the age of the child and the costs that may be reasonably expected in taking care of the child. In order to arrive at a more equitable assessment, the formula also takes into consideration how much time the mother and father spends with the child. To further prevent overburdening either parent, the formula also considers whether the parent is already liable to pay child support as a result of an earlier divorce. The formula is also available on the website of the Child Support Agency and can be used by the parents independently.

In few special circumstances, however the law permits some deviation from the prescribed formula. One such situation might involve either parent incurring substantial expense in traveling over to spend time with the child. In cases where the actual financial resources of the parent differ from their declared income, the difference may also be taken into account to arrive at a fairer assessment.

In most cases, the child support payments are made to the Child Support Agency every month, from where they are then forwarded to the parent in custody of the child.