Child support – everything you need to know11-March-2017 blog Family Law By Mel Collins
Everything you need to know about how to apply, challenge or opt out of a Child Support Assessment
Child support is a particularly sensitive topic for parents involved in the process, as few people are satisfied with the level of support they either pay or receive for their children following separation. Streeterlaw Accredited Specialist in Family Law, Simone Green explains the process and how to apply, challenge or opt out of a Child Support Agreement.
Child support can be determined in two ways:
- An assessment via the Department of Human Services (previously referred to as the Child Support Agency); or
- A private agreement between the parents known as a Child Support Agreement.
Either parent can apply for a Child Support Assessment from the Child Support Registrar either by phone, online at https://childsupportapplication.humanservices.gov.au/ or by post.
Child Support is determined by way of a formula based essentially on the following factors:
- The costs of raising children (according to a schedule)
- The respective incomes of the parents and the capacity of each to meet the costs of the children
- The level of care each parent has for the children (generally based on nights the children spend in the care of each parent)
- The number of children in the assessment
- The age of the children (there are different rates for children under 12 and those over 12-18 years).
You can access a child support estimator online at: https://processing.csa.gov.au/estimator/About.aspx
The Child Support Registrar has powers of enforcement and a special relationship with all other government agencies for information sharing. They have the power to garnish wages for unpaid child support and withhold monies received by way of a refund of income tax to meet any outstanding child support debt.
The level of child support is capped; meaning that if the parent’s combined income reaches a threshold, currently set at $187,785 per annum, there is no increase in child support for those children as the parent’s income increases.
Challenging an assessment:
Child support can be reviewed outside the Court system. Each parent has reporting obligations regarding any change to income or circumstances, such as the level of care they can provide, which may alter an assessment.
In the event that one party disagrees with an assessment, they can apply for an administrative change of assessment or lodge an objection, requesting the Registrar reconsider a previous decision. This requires an application to the Administrative Appeals Tribunal (AAT), who reviews the assessment. A decision of the AAT can then be further appealed to the Family Law division of the Federal Circuit Court of Australia on a question of law.
In circumstances where parents are already involved in Family Law proceedings in the Federal Circuit Court of Australia or the Family Court of Australia, there is an option to avoid the administrative review altogether by applying for an order called a “Departure from assessment”. In certain circumstances, a party may also apply to the Court for a stay in payments pending the outcome of the Court decision.
It is extremely important that anyone considering making an application for a departure or stay order from the Family Courts first obtains competent legal advice, as there may be considerable financial costs if the application is unsuccessful.
Private Child Support Agreements
Parents may opt out of the assessment and enter their own private child support agreement, which can also cover expenses such as private health insurance, private school fees and extracurricular activities. These things are known as non-periodic payments.
A private child support agreement can only be, by agreement. Otherwise, the parties are bound by the assessment of the Child Support Registrar.
There are two types of private child support agreements:
- Limited Agreement:
- These can only be entered into where there is already a Child Support Assessment in place and the parties agree to replace the assessment with their own agreement.
- They can be registered with the Child Support Registrar and enforced in the same way as an Assessment.
- They can be terminated in writing by either party after three years.
- Binding Agreement
- You can enter into a Binding Agreement where there has not been a previous Child Support Assessment.
- It requires each party to obtain independent legal advice
- It can be registered with the Child Support Register and enforced in respect to periodic payments only; (not for non-periodic payments such as school fees).
- Non-periodic payments may be enforced by application to the Federal Circuit Court of Australia.
- It cannot be terminated unless both parties agree and enter into a termination agreement or a new binding agreement.
- It cannot be varied in terms. If a variation is required, the parents must enter into a new agreement and terminate the old agreement.
There have been recent legislative changes retrospectively affecting child support agreements. Read our article on the recent changes to the law regarding binding child support agreements.
Streeterlaw Accredited Specialist in Family Law, Simone Green strongly advises parents wishing to enter a Binding Agreement to get legal advice from a specialist family lawyer as the issues involved in the drafting of such agreements are complex.
“A badly drawn agreement may not survive a challenge to its validity in Court,” Ms Green said. “Be very wary of any Internet based firms offering inexpensive precedents and advice. Any legal advice must be specifically adapted to the client’s circumstances.”
For further information or advice, please contact the Family Law experts at Streeterlaw on 81970105 or email firstname.lastname@example.org.
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