Under the Child Support (Assessment) Act 1989, parents and primary carers of a child can make a claim for child support from the other parent.
As a parent of a child it may be the case that you are eligible to receive child support from the other parent, or that you may be liable to pay child support to the other parent.
There is a great deal of publicly available information on child support and below we endeavour to set out some of the basic information which may be of use to you. However, child support is a very complex area of the law and you need specific advice which is targeted to your specific circumstances.
The ‘Child Support Agency’
The Department of Human Services (Child Support) (commonly referred to as the ‘Child Support Agency’) deals with administering child support. We encourage you to visit their website as there is a great deal of helpful information including the child support online estimator, which can help give an indication of what the child support liability may be.
The Family Courts also have the power to deal with child support matters in certain cases.
Different types of child support
There are three different categories of child support payments:
- Periodic payments- these are payments which are made regularly. If the Child Support Agency is collecting periodic payments on behalf of one party, they will generally collect once per month.
- Non-periodic payments- these payments are made where a Court Order or a Child Support Agreement specifically provides for non-periodic payments (e.g. payment of school fees, either to the other parent or directly to a third party such as the school, or medical/dental practice).
- Lump sum payments.
‘The Child Support Formula’
The starting point for periodic child support payments is the formula which is based on both parent’s taxable incomes and the amount of time the child/children spends with each parent (in the first instance this is calculated based on the number of nights spent in each parent’s care).
There are 8 steps to this process:
- determine each parent’s child support income for the child (section 41).
- determine the parents’ combined child support income for the child for the day (section 42).
- determine each parent’s income percentage for the child for the day (section 55B).
- determine each parent’s percentage of care for the child for the day (section 48).
- determine each parent’s cost percentage for the child for the day (section 55C).
- determine each parent’s child support percentage for the child for the day (section 55D).
- determine the costs of the child for the day (section 55G and 55H). This is based on predetermined factors.
- if a parent has a positive child support percentage under Step 6, the annual rate of child support payable by the parent for the child for the day is worked out using the formula:
(parent’s child support percentage for the child for the day (Step 6))x (costs for the child for the day (Step 7)).
Private Child Support Agreements
What options do you have if the Child Support Formula is not right for you?
There are a number of circumstances in which either parent may apply for a change to the child support assessment formula.
- The costs of spending time with or communicating with the child is more than 5% of your adjusted taxable income amount.
- The child has special needs.
- There are extra costs in caring for, educating or training the child in the way both parents intended.
- The child has income, an earning capacity, property and/or financial resources.
- You have provided money, goods or property for the benefit of the child.
- The costs of child care for the child/children under 12 years of age are more than 5% of your adjusted taxable amount.
- You have out of the ordinary necessary expenses to support yourself.
- The assessment does not correctly reflect either parent’s income, property and/or financial resources and/or the assessment does not correctly reflect either parent’s capacity to earn an income.
- You have a legal duty to support another person.
- You have a responsibility to support a resident child.
Once an application for a change to the assessment is lodged then the other parent has an opportunity to respond before a decision is made.
Once the decision is made, if either parent is not happy with the decision then it is possible to lodge an objection to the decision.
There is an appeal process whereby if a parent does not agree with the decision that has been made, then they can apply to have the decision reviewed.
There are very strict time frames and requirements for making such applications.
The Child Support Agency has the task of collecting child support payments. It is possible to ask the Agency to collect child support on your behalf.
The Child Support Agency is able to collect periodic child support payments and lump sum payments, but the Child Support Agency does not collect payments made to third parties.
The Child Support Agency is also not able to collect periodic child support payments when payers reside (and receive income) in certain countries which do not have agreements with Australia.
The Court’s Jurisdiction
There are a number of instances when the Family Courts can make decisions in relation to child support including:
- When proceedings between the parties are already on foot (see section 116 of the Child Support (Assessment) Act 1989);
- An appeal of a decision of the SSAT in relation to a question of law;
- An appeal of a declaration by the SSAT whereby the SSAT has determined that the issue is too complex for them to determine;
- Stay orders- where a stay of collection is sought until further Order (Section 11C of the Child Support (Registration and Collection) Act 1988);
- The variation or setting aside of a Child Support Agreement;
- Variation of child support Court Orders;
- Declaration as to whether a person has an entitlement;
- Orders for payment of lump sum child support (section 123);
- Applications for payment of expenses (including education expenses) for children over the age of 18 years (section 66L Family Law Act 1975).
International Child Support and Maintenance Matters
Australia has agreements in relation to the enforcement and collection of child support and maintenance with a number of overseas countries. This means that in certain cases child support and maintenance obligations which are created in overseas jurisdictions can be enforced (and will be collected by) the Child Support Agency in Australia.
It also means that in some circumstances child support/maintenance liabilities which are created in Australia are enforced/collected in overseas countries.
In order for an overseas maintenance liability to be enforced by the Child Support Agency in Australia, in most cases the liability needs to be registered with the Child Support Agency and an application needs to be made to the Agency to enforce the liability.
If a parent has a connection with Australia and they seek to have an overseas maintenance liability changed, then in some circumstances they may be able to apply to the Family Courts in Australia to discharge or vary the liability (see regulation 36 of the Family Law Regulations).
Besides the enforcement of overseas maintenance liabilities, the Child Support Agency can do a number of other things, including helping overseas authorities with location and service for parents in Australia.