In Australia, if a person has the care of a child, then that person is generally entitled to receive child support payments for the child. Child support is paid by the parents of a child and is not a government pension, allowance or benefit.
Child support, child maintenance and spousal maintenance are all completely different types of rights and obligations, which are governed by different legal principles and practices.
In Australia, child support covers all children under the age of 18 years of age. Child maintenance is limited to the support of adult children for educational and medical expenses. Child maintenance applies to children over the age of 18 years of age.
Spousal maintenance is discussed in more detail in a separate section of the Information Guide.
Parents have a primary duty to maintain their children. That duty is not a lower priority than to maintain any other child or any other person, has priority over all commitments other than the commitments necessary to enable a parent to support himself and any other person that that parent has a duty to maintain. That duty is not affected by the obligation of any other person to maintain the child or by any entitlements of any other person to an income tested pension, allowance or benefit.
For the most part child support is administered by the Child Support Agency (‘CSA’). The CSA’s website is a very good and useful tool for parents and carers wishing to obtain information about their rights and obligations in relation to child support. The CSA has published on its website The Guide which provides extensive information in relation to child support.
To obtain child support, a parent or carer applies to the CSA to make an administrative assessment of the child support payable by the parents of the child.
The CSA in calculating the child support payable takes into account a number of factors including:
- The costs of children in various age ranges;
- The capacity of the parents to meet those costs;
- The income of the parents; and
- The time that each of the parents spend with the child.
There are a range of factors therefore that go into calculating the amount of child support that is payable in each case.
In making an administrative assessment the CSA uses the last relevant year of income in relation to that child support period.
Although it is referred to as the basic formula, the CSA in fact uses a relatively complicated mathematical formula to calculate the child support payable in each particular case. The CSA provides an online calculator which parents can use to estimate the child support that will be payable in their case.
It is important to obtain advice from an expert family lawyer to ensure that the correct amount of child support is being paid and will be paid in the future. Usually this involves providing your family lawyer with all the relevant information so that they can assess whether the administrative assessment of the CSA is correct.
Often where errors occur, it is not so much a question of the CSA performing the calculation incorrectly but ensuring that all of the information that the CSA have used in calculating the child support is correct. The CSA may be using incorrect or out-of-date information. In some cases the information is missing and the CSA is using default data to perform the calculations.
If there is an error in the calculation of the child support payable, then a party can apply to the CSA to correct that error by lodging an objection. There are a number of decisions to which a party may object including:
- To accept or refuse to accept an application for an assessment.
- To make or refuse to depart from the administrative assessment.
- To accept or refuse to accept a child support agreement.
- As to any of the facts used in the calculation of the administrative assessment.
Strict time limits apply. If a person can see that the CSA has made a mistake in their calculation of child support, then that person must take immediate steps to correct the mistake.
Although the administrative assessment of child support takes into account a number of facts and changes accordingly, there is no doubt that in some circumstances the administrative assessment of child support using the basic formula will result in an unfair amount of child support being made payable, being either too high or too low.
In those circumstances, parents or carers are able to seek a departure from an administrative assessment of child support. A departure from an administrative assessment can be made on a number of grounds. The CSA must be satisfied that one or more of the grounds for departure apply and that it would be just and equitable and otherwise property to depart from the administrative assessment of child support.
The grounds for departure require that in the special circumstance of the case:
- There are significant costs involved in spending time with the child.
- The child has special needs.
- The child attends private school or has other special educational requirements.
- The child support is unfair due to a parent’s income, earning capacity, property or financial resources.
- The payer has made payments or advances on behalf of the child.
- The child care costs of the child.
- The child’s income, earning capacity, property or financial resources.
- The parent’s responsibilities to support themselves or another person.
Parties do not require a lawyer to apply for departure from an administrative assessment of child support. However, it is highly recommend that you obtain advice from an experienced family lawyer before you make a departure application.
The forms for making the various applications to the CSA are contained on the CSA’s website.
In making a decision in relation to a departure application the CSA will provide a detailed judgement setting out the reasons for the decision.
It is important to note that strict time limits apply in responding to any decision of the CSA, including any decision whether to depart from an administrative assessment.
In the event that a party does not agree with the decision of the CSA then they must lodge an objection to that decision. If a party is then not satisfied by the decision on the objection a party can then apply to appropriate court. Strict time limits apply.
Parties are entitled to come to their own arrangements in relation to the child support payable. There are 2 forms of consent arrangements that can be made: either a limited child support agreement or a binding child support agreement.
The matters that can be included in a child support agreement include:
- The rate of periodic payments payable.
- The payment of a lump sum child support.
- The payment of school fees and medical and other expenses of the child.
- The transfer of property by way of child support.
Limited child support agreements are an easier option. They allow parties themselves without legal representation to enter in into a child support agreement. The main problem with limited child support agreements is that they are limited in that they apply for a period of less than 3 years after which time a party can simply terminate the agreement with written notice.
Binding child support agreements on the other hand allow parties to make long-term agreements in relation to the child support payable. The parties must both receive independent legal advice. The terms and conditions of our preparing a binding child-support agreement are quite extensive and parties will need to obtain their own independent legal advice.