If you have children and the relationship with your partner has broken down, one thing which you will need to consider is the concept of child support.
What is child support?
Child support is the payment from one parent to the other parent for the financial support of children under the age of 18 following the breakdown of a relationship.
Both biological and adoptive parents may be entitled to receive or are obligated to pay child support.
There are two types of child support payments:
- Periodic payments – these are a weekly/fortnightly/monthly “cash” payment to the other parent; and
- Non-periodic payments – these are specific payments for services or goods like school fees, education related expenses (stationary, uniforms, etc), private health insurance or gap medical expenses not covered by Medicare or private health insurance.
How much do I have to pay or receive as child support?
The level of child support (periodic payments) you are legally required to pay or receive is calculated using a formula by Services Australia (formerly the Department of Human Services – Child Support). The amount you are assessed to pay by Services Australia depends on the individual circumstances of you and the other parent including but not limited to, the amount of nights the child/children spend with each of you, your respective incomes, and your respective expenses. Services Australia also organises the collection and distribution of child support payments.
It is important to consider that to be eligible to receive child support you must have care of a child for at least 35% of the time, being a twelve (12) month period from when the assessment commences. This can extend to a non-parent in circumstances where you may be the legally appointed guardian of a child.
Services Australia have a child support estimator on their website. To estimate the amount of child support you may be entitled to/may have to pay please click here to be directed to the Services Australia website.
There is no legal obligation to make non-periodic payments on top of periodic payments unless if certain circumstances apply.
Government Benefits
It is important to consider that the amount of child support you receive is also linked to the amount of Family Tax Benefits you are entitled to. If you and the parent reach an agreement for the payment of child support it is important that you notify Centrelink to avoid any penalties in the future.
Are there penalties for not paying child support if I am assessed to do so?
If you are assessed to pay child support but fail to do so, then Services Australia may contact your employer and have your child support debited from your income. Services Australia may also intercept any refund you receive pursuant to a tax return and apply it to an outstanding debt and even recover the debt from any government benefits you are receiving.
In more extreme cases where a significant debt has a accrued over an extended period of time, Services Australia may apply to sell any property that you own or even restrict your ability to travel overseas by seeking a Departure Prohibition Order (effectively stopping you from exiting the country).
Changing an assessment
If you believe that Services Australia have incorrectly assessed your child support obligation or payment you can file an objection to the assessment. This most commonly occurs in circumstances where Services Australia may have incorrectly determined a parent’s income or care arrangements for the child/children when assessing the level of support a parent should receive or be assessed to pay.
In certain circumstances you can apply to change the child support assessment on the basis of “special circumstances” which include but are not limited to the high costs which may be associated with maintaining your child due to special needs, maintaining a child in the way in which both parents intended (including caring, educating and training) or even the high costs which may be associated in facilitating the child communicating and spending time with the other parent.
Private agreements: Binding and Limited Child Support Agreements
You do not always have to rely on a child support assessment. You and the other parent can enter into a private arrangement for the payment of child support. These arrangements are typically documented by way of a Binding or Limited Child Support Agreement.
- Limited Child Support Agreements
A Limited Child Support Agreement operates for a period of up to three (3) years and can include periodic and non-periodic payments. You are required to have an active assessment before being able to enter into this Agreement and the payment cannot be less than the assessed amount. You are not required to seek independent legal advice, however it is recommended that you do so.
- Binding Child Support Agreements
A Binding Child Support Agreement is intended to last until a child turns 18 years of age or until another child support terminating event. It can only be revoked by agreement or with an order of the Federal Circuit Court and Family Court of Australia. Both parents are required to ascertain independent legal advice before entering into this type of agreement. The Agreement can provide for one parent to receive less than the amount they are otherwise assessed to receive, it can also provide for lump sum payments and non-periodic expenses.
Do I have to pay or am I entitled to get child support for a child over the age of eighteen?
The obligation to pay child support will usually terminate when a child turns 18.
However, a party may apply to Services Australia to extend the payment of child support if the child is still completing secondary education in the year they turn 18. This application will need to be made when the child is 17.
What is adult child maintenance?
In some cases, you may be entitled to receive or be obligated to pay adult child maintenance which extends beyond the child turning 18. These can include when the child is undertaking tertiary education or has a serious illness or disability.
Child support where the payer or payee is overseas
For further information about international child support issues, please follow this link.
How can we help?
Coulter Legal offers specialist advice regarding child support both at the Services Australia level, Child Support Agreements and adult child maintenance.
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