Family law in Australia recognises that both parents of a child should be financially responsible for that child’s care, regardless of the parents’ marital status, their past or present relationships, or their involvement in the child’s life.
The child support scheme in Australia is regulated through a number of laws, such laws which are administered by the Department of Human Services (Child Support) (‘DHS Child Support’).
Child support payments may constitute regular or periodic contributions by one parent of a child to the other parent or the child’s carer, for the child’s ongoing welfare and day to day maintenance. The amount of child support required to be paid may be determined by an administrative assessment through DHS Child Support or by a child support agreement made between the child’s parents.
Applying for an administrative assessment
An application for an administrative assessment can be made to DHS Child Support by the primary carer of the child (or children) in question. Child support is payable for all children until they reach 18 years of age or until they complete their secondary schooling if they turn 18 during that year.
DHS Child Support must be convinced that the applicant and parent required to pay child support are in fact the parents of the child. In many cases, parentage will be accepted by providing documentation such as a birth certificate. The child support scheme also applies to adopted children and children from previous same-sex relationships, as well as to children born through artificial conception. In these cases, there are general assumptions made with respect to who the child’s parents are, such assumptions may be challenged in Court and/or with DNA testing.
Challenges to parentage can be complex and emotionally charged, and if a dispute arises, it is recommended that legal advice is obtained as soon as practicable.
Factors to consider when calculating child support.
DHS Child Support will use a complex formula to calculate child support payments, giving consideration to the following factors:
- the length of time the child spends with each parent/carer;
- the costs of raising the child relative to specific age ranges and the capacity for each parent to meet those costs;
- the respective income of each parent;
- each parent’s responsibility for supporting any other children;
- the age of the child and any other children in the care of each parent; and
- the basic living needs of each parent.
Paying child support
Parties can make private arrangements for the payment of child support amongst themselves, or alternatively, child support payments can be collected and distributed by DHS Child Support. The latter will apply where child support payments have been calculated through an administrative assessment or are paid under a child support agreement.
DHS Child Support has the power to enforce the payment of child support, providing assistance where the paying parent has previously been unreliable in paying their child support payments, or they have a history of violence.
If necessary, payments can be enforced by debiting the paying parent’s bank account, taking payments from the paying parent’s tax refund, or commencing debt recovery proceedings against the paying parent in Court.
Challenging an administrative assessment
Sometimes a child support assessment may not fully consider the special or unusual needs of a child or the circumstances of the paying parent or carer. Other times, a carer or payer’s circumstances may change, either short-term or permanently, resulting in financial hardship for the paying parent or carer (such as job loss or illness). In such cases, the paying parent or carer can apply for a reassessment of child support.
Once a review is completed, the applicant is notified in writing of any new assessment. If a person is unhappy with the decision issued by DHS Child Support, an objection may be lodged within 28 days of receiving the revised assessment. A review of the revised assessment will then take place, and if after the review is conducted, the applicant is still dissatisfied with the outcome, they may be able to appeal the decision through a specialist division of the Administrative Appeals Tribunal.
If you think a DHS Child Support assessment has been calculated incorrectly or that your personal and financial circumstances have not been fully considered, our family law team can assist you in having the assessment reviewed or lodging an objection.
What are child support agreements?
As mentioned above, instead of having child support assessed through DHS Child Support, the child’s parents can enter into a private child support agreement, which is a written agreement made between the child’s parents setting out their agreed obligations regarding child support, the type, amount and frequency of payments. Child support payments could include regular ongoing contributions, lump sum payments or periodic payments for specific items such as school fees or health insurance.
Child support agreements may be binding or limited.
A binding child support agreement must be in writing and signed by both parties. The parties must receive independent legal advice and the agreement must include a statement signed by the parties’ respective lawyers that they have sought independent legal advice. These agreements can only be varied mutually between both parties or alternatively and in limited circumstances, by an order of the Family Court.
Parties who wish to enter a limited child support agreement must first have an administrative assessment conducted. This is called a ‘notional assessment’ and can be used by the parties as a ‘comparison’ between what would be paid by assessment should the private agreement not be entered into. The agreement must provide for the same or greater child support than the national assessment.
Whilst legal advice is mandatory only for binding child support agreements, we recommend legal advice is obtained before entering an agreement for child support.
What about adult children?
Child maintenance can in some instances, be payable for children over the age of 18 years who are in full-time study, or who have a physical or mental disability.
The Family Law Act 1975 provides for child maintenance orders for adult children where the Court considers such payments are either necessary to complete the child’s education or justified due to the child suffering from a mental or physical disability.
In such cases the financial and special needs of the child will be assessed and, if relevant, the Court will make orders for financial contributions which it considered appropriate in the circumstances. A range of factors is considered by the Court in its approach to determining whether maintenance is payable.
Conclusion
Child support and maintenance issues can become contentious and are often charged with emotion and frustration. The principle that both parents should financially contribute to their child’s upbringing is quite often overlooked, hence why common sense and the guidance of an experienced family lawyer can benefit all parties involved.
Our family law team can assist you in lodging a child support application with DHS Child Support, checking whether child support payments have been correctly assessed and, if necessary, objecting to an assessment, or preparing and negotiating a child support agreement.
If you or someone you know would like more information or needs help or advice, please contact us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.
