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Changing an Administrative Assessment by the Child Support Agency

There are limited grounds to change an administrative assessment. The grounds for a departure from an administrative assessment are as follows:

Reason 1: High costs of enabling a parent to spend time with, or communicate with, the child.

Reason 2: High costs associated with the child’s special needs.

Reason 3: High costs of caring for, educating or training the child in the way both parents intended.

Reason 4: Child’s income, earning capacity, property or financial resources.

Reason 5: Payer has paid or transferred money, goods or property to the child, the payee, or a 3rd party for the benefit of the child.

Reason 6: Payee’s high child care costs for the child (and the child is under 12 years).

Reason 7: The parent’s necessary expenses significantly affect their capacity to support the child.

Reason 8: Income, earning capacity, property or financial resources of one or both parents.

Reason 9: The parent’s capacity to support the child is significantly affected by:

  • their legal duty to maintain another child or person,
  • their necessary expenses in supporting another child or person they have a legal duty to maintain,
  •  their high costs of enabling them to spend time with or communicate with, another child or person they have a legal duty to maintain.

Reason 10: Parent’s responsibility to maintain a resident child reduces capacity to support child support child.

 

Child Support Agency Assessment

If parents do not agree or do not wish to put a private Child Support arrangement in place, then an Application for Child Support is lodged with the Child Support Agency. In the past, parents of children would apply for child maintenance. Today, if it is possible that the Child Support Agency can make a determination for Child Support, then child maintenance orders are not allowed

The Application results in a Child Support Assessment provided the formal requirements for an application are satisfied. This is an administrative procedure uses a formula from the Child Support Act to calculate the amount of Child Support that would be paid by a parent in any given situation. 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. This procedure does not involve the Family Court system.

An Assessment Notice will usually issue several weeks later. This will tell each parent how much they are to receive/pay each month and about their rights relating to the payment/receipt of Child Support.

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 Australia. 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.

Court Orders and Child Support Agreements

The Family Court can issue Court Orders on the basis of a Binding Child Support Agreement.

Court Orders and the Child Support Agency

The Child Support Agency is notified of Court Orders that start a registrable maintenance liability.

After notification, the Child Support Agency registers a liability for collection. The Child Support Agency only registers the parts of the Court Order that concern child maintenance.

A payee can elect for the Child Support Agency to collect maintenance for them, or not. If the payee elects for the Child Support Agency to collect maintenance payments on their behalf, then the payment liability is known as an enforceable maintenance liability.

Court Orders can only be changed by changing the Binding Child Support Agreement or by application to the court.

Can my husband and I come to an agreement?

Couples are encouraged to reach agreements on their own regarding child support.   Some couples are able to do this on their own without any outside intervention.  Other couples may require some help.  A Family Dispute Resolution Practitioner can often help parents work through the issue that come up regarding child support and other issues regarding children.

Limited Child Support Agreements

A Limited Child Support Agreement is usually reached outside of court, between the two parents of the child for whom child support will be paid. Legal advice is not necessary for the agreement to be binding. Such agreements are generally not used if the agreement is intended to be long term.

Firstly, an administrative assessment into the circumstances of the parties is required, to ensure that the situation and all assets of the parties are taken into account when determining a child support amount.

Limited Child Support Agreements provide more flexibility to parents. For instance the Limited Child Support Agreement is easier to terminate than Binding Child Support Agreements. Termination can occur upon the making of a new agreement or a written agreement to end the existing agreement. It is also possible to terminate an agreement if there is a significant change in the circumstances of either or both of the parties. The agreement can also be terminated by one party without the agreement of the other.

Limited Child Support Agreements can be entered into without legal advice.  Either party to the agreement can terminate the agreement after 3 years or if the amount that would be payable under a Child Support Assessment changes by more than 15%.  The amount of Child Support payable under a Limited Child Support Agreements must be at least the amount that would be payable under the Child Support Agency formula.

Change by the Court (only one parent requires change)

If only one parent wishes to end the Binding Child Support Agreements, they may seek a Court Order to set the agreement aside, but such an order will be available only in very limited circumstances.

To set the agreement aside the Court must be satisfied as follows:

  • the agreement of the party was obtained by fraud or failure to disclose material information, or through undue influence, duress, or unconscionable conduct such that it would be unjust not to set the agreement aside; or
  • that exceptional circumstances have arisen since the agreement was made, so that the child or applicant parent will suffer hardship if the agreement remains in place.

If one party has persuaded the other party to accept (without proper legal advice) an ‘unfair’ or inappropriate Child Support amount, then the agreement may be set aside.

Both Limited Child Support Agreements and Binding Child Support Agreements can be set aside by court order, however, Binding Child Support Agreements are harder to set aside than Limited Child Support Agreements.

Change by agreement (both parents want change)

If the parents both wish to end the Binding Child Support Agreement before the agreed end date, they must once again seek independent legal advice and make a formal Termination Agreement, or a new Binding Child Support Agreement that also terminates the previous agreement.

Binding Child Support Agreements

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).

Child Support Agreements

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.

Child Support Agreements and Family Tax Benefit entitlements

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