What is child support in Australian family law?
Child support is the term given to payments that parents make to support their children when the parents are no longer in a relationship with one another. It’s sometimes referred to as child maintenance.
Child support payments may apply regardless of whether the parents are:
- Separated but not divorced
- Separated but never married
- Same-sex or opposite-sex
The child support system aims to ensure children’s financial needs are met. Both parents have a responsibility to provide financial support for their children, but their obligations depend on many things including their income, their other financial duties, the children’s expenses, and how much care each parent provides for the children.
How do I apply for child support?
Either parent can apply for child support. There are a few different options:
- You can make a private agreement with your former partner; or
- Apply to the Department of Human Services Child Support Agency (DHS) for an assessment; or
- Sometimes a court will order child support payments to be made by one or both parties (for example, if the child has turned 18 years of age)
Both of these paths can raise legal issues. If you wish to make a private agreement, you must ensure that your kids’ long-term needs are met and that the agreement is fair. If it later becomes a problem, you may have to apply to court to either change or enforce it.
If you decide to enter into a child support agreement with your former partner, you have the option of making a binding child support agreement or a limited child support agreement. Binding agreements are worked out by the parties (and their lawyers) without a Department of Human Services (DHS) assessment. Limited agreements are based on a DHS assessment and usually have a lifespan of three years.
If it looks as if you’ll be entering into a child support agreement or a court-enforced arrangement, you’ll need legal advice as soon as possible. Contact us for a free lawyer consultation.
The most common form of child support is the government system that’s run by DHS. Under this system, one or both parties apply for a child support assessment. DHS makes the assessment, calculates payments, and manages and oversees the payments.
DHS can make an assessment if at least one parent lives in Australia. If you have questions or concerns about overseas child support, please get in touch with us as soon as possible.
How do child support assessments work?
DHS looks at both parties’ financial circumstances to assess the level of child support. Financial circumstances may include:
- Taxable incomes
- Division of the children’s time between the parents
- Who has responsibility for which expense
- Other financial obligations
If there’s a parenting plan, other parenting agreement, or parenting court order, you’ll need to provide it to DHS. If any of the parenting arrangements have changed, you’ll need to tell DHS.
DHS then applies a special formula to work out how much one or both parties should pay.
If you believe the child support assessment is wrong, or if there’s a mistake, you can apply to DHS to change it. Usually, there’s 28 days in which to lodge a written objection to a decision. We’ll help you do this.
Who can apply for a child support assessment?
You can apply for a child support assessment if you’re a legal parent of the child. You need to be able to show proof; for example, a statutory declaration sworn by you.
You’re considered a parent of the child in any of the following circumstances:
- You and the other parent were married at the time of the child’s birth
- The child’s birth certificate names you as a parent
- The child’s adoption papers names you as a parent
- If you’re male, and you lived with the mother between 20 and 44 weeks before the child’s birth
- A court has decided that you’re a parent
- The Family Law Act says that you’re a parent
If you’re uncertain whether you’re a parent of the child, or unsure whether you can prove it, get in touch with us as soon as possible.
You can also apply for child support even if you’re not a legal parent, for example, a grandparent. You must meet criteria including:
- The child is in your care for a minimum of 128 nights per year
- You’re not partnered with either parent
- You don’t share joint care with either parent
- You don’t share joint care with either parent
- You’re seeking child support from the parents
- The parents agree to your helping to care for the child. Even if they don’t agree, this element is satisfied if the care is in the child’s best interests
The income of a non-parent carer isn’t taken into account when assessing child support.
How long does it take to have child support assessed?
Assessment periods can vary. If one parent isn’t cooperating, it may take much longer, as DHS will have to locate financial records before it can make a proper assessment.
If your former partner isn’t cooperating with a DHS assessment, contact us for advice.
How much child support is payable?
The amount of child support will depend on income, children’s expenses and the level of care provided by each party. Every case is different, so every amount will be different. For low-income earners, the minimum rate of child support is around $500 per year.
How are child support payments collected?
Once there’s an assessment, the parties can choose how child support is collected and paid. They can make a private arrangement, for example, through bank deposits. However, this approach can be risky if there are any likely changes to the paying parent’s financial circumstances, or if their reliability is in doubt.
You shouldn’t agree to a private collection arrangement without first consulting us for legal advice.
It’s critical to understand that DHS can only enforce payments for registered child support agreements. If your private arrangement isn’t working, your only enforcement option will be to sue for breach of contract. This type of legal action is outside the family law system.
On the other hand, you can ask DHS to collect child support and pay it. There must be an assessment, agreement or court order for DHS to be able to do this.
The paying parent can make voluntary payments to DHS, or the payments can be collected from wages, bank accounts, Centrelink benefits or other sources.
If the paying parent fails to make some payments, DHS can enforce payment through court action, or by taking the payments directly from the parent’s employer. It can also take the payments directly from Centrelink benefits or tax refunds. Parents with child support debts may be prevented from travelling outside Australia until they’ve repaid their debt.
Because of DHS’s powers, it’s usually safer and easier to establish child support payments through DHS. We can discuss your child support needs at our free lawyer consultation.
Will my child support affect my Centrelink benefits?
If you’re receiving Centrelink benefits, for example, Family Tax Benefit Part A, they may be affected by your child support payments. You’ll need to contact Centrelink as soon as possible to find out where you stand.