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Child Support

 

Which Children Are Covered?

The Child Support Scheme covers all children living in Australia whose parents have separated whether or not the parents were married to each other.  If a child turns 18 during their last year at school then that child is eligible for child support until they complete the school year.

Normally both parents must also be living in Australian but there are arrangements with some other countries for collection and payment of child support if one of the parents or the child is living in that country.  A child who is married or living in a de facto relationship is not eligible for child support.

 

The Formula

The Child Support Agency uses a formula to work out how much child support a parent is required to pay.  Either parent, or a carer who is not a parent, can apply to the Child Support Agency for a child support assessment.  The Child Support Agency works out how much a child support is payable and then issues an assessment.  The Child Support Agency works out how much child support is payable and then issues an assessment. 

The Child Support Agency web site has further information regarding the formula and a basic child support estimator.  The current formula, which commenced on 1 July 2008, makes use of published research on t6he cost of raising children and takes into account the incomes of both parents and the level of care provided by each parent. 

 

Child Support Agreements

The Child Support Agency encourages parents to reach their own agreements about the financial support of their children.  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.  Child support assessment can be changed by entering into a child support agreement.  If an agreement is reached it can be registered with the Child Support Agency.

There are two types of child support agreements, limited child support agreements and binding child support agreements. 

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 agreement must be at least the amount that would be payable under the child support formula.

Binding child support agreements can only be entered into after both parties have had independent legal advice.  The amount payable under a binding child support agreements can be less than the amount payable under the formula.  Binding child support agreements cannot be terminated unilaterally by one party in the way that limited child support agreements can.  Both limited and binding child support agreements can be set aside by court order.  Binding child support agreements are harder to set aside than limited child support agreements.

If parents agree, they can end a child support agreement at any time by making a further agreement terminating the earlier agreement, though independent legal advice is required for an agreement terminating a binding child support agreement.

A parent's eligibility for the Family Tax Benefit is determined based on the assumption that they are receiving the amount of child support to which they would be entitled under an assessment.  A person who enters into an agreement to receive less will not be entitled to a higher FTB.

It is always best to check with a family lawyer before entering into a child support agreement, even though legal advice is not compulsory for limited child support agreements.

Reviewing a Child Support Assessment

In most cases the child support formula produces an assessment that is fair to both parents.  There are, however, circumstances where the child support formula can result in an assessment that is unfair for one reason or another.  In these cases the parent who is unhappy with the assessment can apply for a change of the assessment based on the special circumstances of the case.  A Senior Case Officer in the Child Support Agency will make a determination as to whether or not there are special circumstances which would justify a departure from the assessment.  While a parent cannot be represented by a lawyer at the change of assessment hearing, a lawyer can assist a parent to complete application and response forms and to prepare supporting material for the hearing.

If the parent is not happy with the decision of the Senior Case Officer then they may lodge an objection to the decision.  The change of assessment application will then be reconsidered by objection can apply to the Social Security Appeals Tribunal for an independent review of the decision of the SSAT is binding unless there is an error of law in which case either parent or the Child Support Agency can appeal to a court.

If there are already court proceedings on foot when the dispute about child support arises, it may not be necessary to go to a Senior Cases Officers or to object to the decision before having the matter heard by the court.  There are provisions which allow all outstanding issues between two parties to be determined at the one time by a court to avoid delay and expense.

 

Parenting Disputes

If there is a dispute about whether a person from whom child support is sought is a parent of the child a court can make an order for parentage testing.  Where a person who has paid child support turns out to be the parent of the child, then the court can order repayment.

 


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© 2010 Family Law Section. All Rights Reserved.


© 2010 Family Law Section. All Rights Reserved.