In Australia, parents are legally obliged to financially support their children.
The child support scheme has been introduced to ensure that children receive an appropriate amount of financial support from separated parents. Parents are liable to support their children, whether they were married, in a de facto relationship or same sex relationship.
Parents are still liable to pay child support even if they have never been in a relationship with the other parent or even if they did not intend having a child.
Parents are normally liable to support their children until they turn 18 years of age. In some circumstances the obligation to support can extend past the age of 18, for example if the child is finishing school.
Child support may cease before the age of 18 when:
Child support is a payment made by one parent to the other to help with the cost of caring for the children. In some circumstances, child support is paid by one or both parents to another person who is caring for the child.
The child support system is overseen by the Department of Social Services who is responsible for child support legislation and monitors its delivery. Services Australia is responsible for delivering the scheme to parents and careers. Their role is to assist parents with the Child Support Assessment process and the collection of payments.
A parent is liable for child support if they are the biological parent of the children.
When registering the birth of a child, the father may refuse to admit he is the parent. In those circumstances, the mother should still record the father’s details so that the Registrar of Births Deaths and Marriages can contact them.
If the father continues to deny parentage, then the mother must apply to the Department for Child Support. If the parents were living together or married at the time of conception, then there is an automatic presumption of parentage, and the father will be assessed as paying child support.
If there is no presumption and the father continues to deny parentage, then the mother will have to make an application to the Family Court for an order that the father undergo a DNA test to determine whether he is the parent or not. If the father refuses to undergo the test, the court can presume that he is the father.
There are two types of child support:
Self-managed child support
Self-managed child support is where the parents manage child support between themselves.
They do not use Services Australia to organise collection or payment of the child support, the parents manage these issues themselves.
If parents self-manage their child support, they ae only entitled to the base rate of Family Tax Benefit Part A.
Parents who self-manage have the independence to decide for themselves how much is paid, when it is paid and how to pay.
Collection of child support
For as long as a parent decides that they will be responsible for the collection of child support, the Department will not become involved. It is only when a parent requests the Department to collect child support that they will commence doing so.
If the paying parent is in significant arrears, you can request the Department to collect child support on your behalf. The general rule however is that only three months arrears are collectable. Only in exceptional circumstances can up to nine months of arears be collected. The exceptions are strictly applied, and in most circumstances, it is likely that the three months rule will apply.
Despite this, a parent can privately pursue the other parent for arrears, but to do so they would have to apply to a court.
The Department is able to collect child support on behalf of a parent. The Department has several tools at its disposal if a parent does not pay child support.
The Department has the power to garnish wages and take any tax refund at the end of the financial year. A child support payer who is in arrears can also be prevented from leaving the country until the outstanding debt is paid.
If you are unable to self-manage your child support, then the other option available is to apply for a Child Support Assessment.
Services Australia will calculate the amount of child support payable using the child support formula and provide this information to the other parent.
The Department will then collect the payments and provide them to you. The Department can also collect payments on behalf of a non-parent carer such as a legal guardian or grandparent.
The process of applying for a Child Support Assessment is very straightforward. A parent seeking to apply is able to do so online using the department’s online tool.
The Child Support Assessment uses a formula to calculate how much child support a parent should pay to support their child. The formula takes into account the following factors:
A person will only be obliged to pay child support if they are the biological parent, the adoptive parent or same sex parent.
The amount of child support payable will be affected by the level of care that a parent has. The less time a parent spends with their child, the greater the level of child support payable to the other parent. Even if a parent does not spend any time with their child, they will still be required to pay child support.
A Child Support Assessment can vary as a result of a change in the parent’s circumstances. The following can affect the level of child support:
If you believe that the Child Support Assessment does not accurately reflect the other parent’s ability to pay, you can ask for a change of assessment.
You will have to set out the reasons for the change in assessment and provide disclosure in support of the change.
The other parent will have a chance to respond to the request to change the assessment. After reviewing both parties’ information, the Department will decide whether the assessment should be changed. If you are dissatisfied with the result of the review, you can appeal the decision to the Administrative Appeals Tribunal.
Parents can make a formal child support agreement. It can include cash payments to the other parent, non-cash payments to others (such as health insurance or school fees) or a combination of both.
There are two types of child support agreements:
It will depend on your circumstances whether a limited or binding child support agreement is suitable for you.
A limited child support agreement is a formal agreement between parents which does not require independent legal advice. The agreement can cover cash or non-cash payments such as school fees.
In order to have a limited child support agreement, parents must first have a Child Support Assessment with the Department. The payments in the agreement must be equal to or greater than the rate calculated in the child support assessment.
To receive child support under a limited agreement, a parent must have at least 35% care of a child.
Once a limited agreement has been accepted by the department, the receiving parent can decide whether they collect the payments themselves or whether the Department will manage collection.
Parents have the following responsibilities under the child support scheme:
A binding child support agreement is an agreement about child support payments which the parents or carer must sign and is only binding if each party has obtained legal advice. If that legal advice is not obtained and a legal advice certificate issued, the agreement will not be valid.
A binding child support agreement can be for more or less than the Child Support Assessment if both sides agree.
A binding child support agreement is legally binding on both parties. The agreement may set out how the amount of child support may change over time if the care of the children or other circumstances change.
The agreement however may not include the ability to change the amount of child support payable.
A drawback with binding child support agreements in the past was that they were difficult to change or terminate if circumstances changed. A parent could be left continuing to pay child support to the other parent even though the child was now living with them.
Under changes introduced to legislation in 2018, a binding child support agreement can be suspended if the parent entitled to child support under the agreement (the eligible carer) now cares for the child for less than 35% of all overnights (becoming the former carer). The agreement can also be suspended in other circumstances.
If you have a binding child support agreement which pre-dates the July 2018 amendments, you should seek legal advice about the impact of those amendments on your agreement.
It is also possible to obtain a court order for child support from the father to cover a mother’s child-bearing expenses. The courts can order that the father contribute to the following costs:
It is important to note that the mother is only able to claim the costs for the period two months before and three months after the birth of the child. A mother is able to seek costs outside of this time limit, but it is at the discretion of the court, taking into account all of the circumstances.
The Family Tax Benefit (FTB) is a payment which assists with the costs of raising a child. FTB Part A is paid on a per child basis and the rate paid is based on the family’s circumstances. FTB Part B is paid on a per family basis and assists single parents and families with one main income.
Child Support and FTB Part A are closely linked. In order to receive more than the base rate of FTB Part A, separated parents are required to apply for a Child Support Assessment through Services Australia, even if parents arrange the transfer of their child support payments privately with the other parent. The amount of child support that parents pay or receive can also affect their entitlement to FTB Part A.
The more Child Support a parent receives, the less FTB a parent may entitled to. When child support is above a certain level, FTB is reduced by 50 cents for every dollar received. The amount of FTB a parent receives however will not fall below the base rate of FTB Part A regardless of the amount of child support received. It should be noted that FTB is also affected by other factors such as a parent’s adjustable taxable income.
It should be noted that where child support is paid under a child support agreement (registered after 1 July 2008) the rate of FTB Part A paid to a parent will be based on the amount of child support that would have been paid under a formula assessment. This means that where a child support agreement provides for the payment of child support at less than the Child Support Assessment rate, FTB Part A will not be increased to cover this shortfall and the receiving parent will be worse off financially.
Copyright © 2022 reeslaw.com | All Rights Reserved. | Digital Agency - Supple