Brisbane Child Support Lawyers

Frequently Asked Questions (FAQ’s)

Child Support Lawyers

Are you paying or receiving child support? We are Child Support Lawyers and can provide you with expert advice to ensure that you are paying/receiving the appropriate amount to ensure your children are provided for financially.

Under the Child Support Assessment Act, parents have a primary duty to maintain their children. That duty has priority over all other commitments of the parent other than commitments necessary to enable the parent to support themselves.

What is child support?

Child support is a payment made to one parent by the other parent for the financial benefit of a child.

Under the Child Support (Assessment) Act,  a parent (usually the primary carer of the child or children) can make an application for the payment of child support to them by the other parent.

The Department of Human Services (formerly the Child Support Agency) is responsible for the administration (and sometimes the collection) of child support payments and assessing the amount of child support that is to be paid.

How is child support assessed?

A Child Support Assessment dictates the amount of child support one parent is required to pay the other parent. It is calculated based on a formula that has regard to the income of the parents, and the care arrangements of the children and the costs of the children.

An assessment occurs by the Department of Human Services (DHS) calculating payments based on a formula which has regard to the cost of children, the income of both parents, the arrangement for the care of children for whom child support is payable, whether the parents have any relevant dependent children living with them and whether the parents have any children in other child support cases.

Paying parents may be able to have their payments adjusted if they are making other prescribed payments including school or child care fees, medical or dental fees, or payments towards the rent or utilities of the person receiving the payment.

You can estimate the amount of child support payable/receivable by using the child support calculator on the DHS website.

What if I do not agree with a child support assessment?

If you do not agree with your child support assessment you have the right to object to the assessment, which is done by lodging a change of assessment form with the DHS.

The DHS then conducts an internal review of the decision.

An objection outlining the grounds of objection must be lodged within twenty-eight (28) days of the date of the original decision, unless an extension of time is granted. The other party is then given the opportunity to respond.

The Registrar will consider any objection within sixty (60) days after the date the objection is lodged and either allow or disallow the objection in whole or in part. The Registrar will provide their decision in writing to the parties.

You should speak to our child support lawyers about the process if you are unhappy with a child support assessment.

Types of Child Support Agreements

There are two types of agreements that parents can enter into instead of having a child support assessment including:

1. Binding child support agreement;
2. Limited child support agreement.

The difference between the two is as follows:

Binding Child Support Agreement

• Formal agreement signed by each of the parties;
• the parties are required to obtain legal advice in relation to the agreement and must include a statement in the agreement that each party has received legal advice as to the effect of and the advantages and disadvantages of the agreement, before it was signed; ‘
• A statement must be included in the agreement signed by the solicitor for each of the parties that the advice was provided;
• Can be made for any amount that is agreed between the parties;
• The agreement cannot be varied and must be terminated;
• The grounds for termination of the agreement are limited under the Act and therefore it is wise to think ahead and anticipate the reasons the parties may wish to terminate the agreement, for example, a change to either party’s financial circumstances, health, employment or care of the children.

You should obtain legal advice from an experienced Child Support Lawyer about whether a Binding Child Support Agreement is right for you and the advantages and disadvantages of doing such an agreement.

Limited Child Support Agreement

• The parties are not required to get legal advice;
• There must be an assessment by the Child Support Agency in place at the time, and the amount of periodic (regular) child support provided for in the agreement must not be less than the assessment;
• The agreement cannot be varied and must be terminated by a new agreement or a court order;
• The agreement must be lodged with the DHS and be accepted before it will be legally binding;
• After three years a party can give notice to the Registrar to terminate the agreement;
• A party can at any time obtain a notional assessment from the DHS and if the notional assessment changes by more than 15% from the provision of periodic child support provided for in the agreement, the agreement can be terminated by that party.

My ex partner is refusing to pay the assessed child support. What do I do?

If the payer fails to meet his/her financial obligations to pay child support to you, you should notify DHS.

DHS has a wide range of powers including:

• Taking child support out of the employer’s pay or tax return;
• Taking child support from social security pensions;
• Departure Prohibition Orders – prevents the parent from leaving the country until they pay the outstanding amount or negotiate a payment arrangement.

You can also seek enforcement of the outstanding child support through an enforcement application through the Federal Circuit Court.

Does child support include private school fees?

No. The formula for a child support assessment does not take account of private school fees. Most couples will reach agreement to contribute to the children’s private school fees. If an agreement cannot be reached it is possible for a party to seek payment of the child support fees through a departure application.

My ex is overseas. Can I enforce the payment of child support to me?

Australia has mutual agreements with other countries who are reciprocating jurisdictions, with respect to the payment of child support. Some reciprocating jurisdictions recognise a child support assessment whereas some reciprocating jurisdictions only recognise a court order for the payment of child support.

The DHS can:

• enforce payment of a child support assessment where the payer resides overseas in a reciprocating jurisdiction if the other parent is a resident of Australia;
• accept an application for assessment from a payee/payer overseas when made through the overseas Central Authority;
• accept an application for assessment from an overseas Central Authority applying on behalf of a payee in a reciprocating jurisdiction;
• accept an application for assessment made directly by the payer who is a resident of a reciprocating jurisdiction;
• register and enforce a variety of different assessments and agreements.
• assist overseas authorities with location and service requests for parents in Australia.

If you require advice in respect of a child support issue, our experienced family lawyer and Principal Courtney Barton can help.

My financial circumstances have changed / Care of the children has changed. Can I change my child support assessment?

Yes you can. You have the option to seek a change to the administrative assessment if any of the following criteria apply:

• Objection to the level of care;
• Non-agency payments;
• A parent’s income changes; or
• A “terminating event” occurs.

Options to challenge a Child Support Assessment

There are two ways to challenge a child support assessment including as follows:

1. Application to the Child Support Registrar:
   1.  where there has been a change in circumstances;
   2. where there are special circumstances;
2. Application to the court for a departure order.

Reasons you can challenge your child support assessment

As stated above, where for example, there have been changes to the care arrangements of the children, changes in the number of children and changes in income levels, you can apply to the Child Support Registrar for a change to the formula for the assessment, based on your change in circumstances.

The formula will be recalculated once the changes are made to update the assessment rate.

Alternatively, you can apply to the Child Support Registrar for a departure from the administrative assessment of child support where there are ‘special circumstances’: s98B Child Support Assessment Act 1989 (CSAA).

The criteria that the Registrar must be satisfied of before making a determination are the same as is required if a party is making an application to the court to depart from an administrative assessment of child support: s90C CSAA.

The power to depart from an assessment of the Child Support Agency, whether by application to the Child Support Registrar or to the Court, is provided in s117 of the CSAA. It requires a 3 step process to be undertaken to determine whether a departure order should be made as follows:

1. Establish a ground for departure in s 117(2) of CSAA;
2. Consider whether the departure order is just & equitable within meaning of s 117(4);
3. Consider whether departure is “otherwise proper” within meaning of s 117(5).

The Registrar can only change the assessment if one or more of the ten grounds for departure is established in the special circumstances of the case: s90C and s117(2) CSAA.

The ten reasons you can apply for a departure from your child support assessment are:

1. Reason 1 (2.6.7). The costs of maintaining your child are significantly affected by high costs of enabling a parent to spend time with, or communicate with your child (the costs must be more than 5% of your adjustable taxable income).
2. Reason 2 (2.6.8). The costs of maintaining your child are significantly affected by high costs associated with the child’s special needs.
3. Reason 3 (2.6.9). The costs of maintaining your child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended.
4. Reason 4 (2.6.10). The child support assessment is unfair because of your child’s income, earning capacity, property or financial resources.
5. Reason 5 (2.6.11). The child support assessment is unfair because the payer has paid or transferred money, goods or property to your child, the payee, or a third party for the benefit of your child.
6. Reason 6 (2.6.12). The costs of maintaining your child are significantly affected by the high child care costs for the child (and the child is under 12 years of age).
7. Reason 7 (2.6.13). The parent’s necessary expenses significantly affect their capacity to support your child.
8. Reason 8 (2.6.14). The child support assessment is unfair because of the income, earning capacity, property or financial resources of 1 or both parents.
9. Reason 9 (2.6.15). The parent’s capacity to support your child is significantly affected by:
   1. their duty to maintain another child or person;
   2. their necessary expenses in supporting another child or person they have a duty to maintain;
   3. their high costs of enabling them to spend time with or communicate with, another child/person they have a duty to maintain.
10. Reason 10 (2.6.16). The parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child.

If one of the ten reasons for a change of assessment is established the Registrar must then consider whether the change of assessment is ‘just and equitable’ and ‘otherwise proper’.

Is it just and equitable for you to get more child support?

Once the Agency is satisfied you have a reason for applying for a change of assessment, they will consider whether a change is just and equitable: s117(4).

This includes considering:

• the nature of the duty of a parent to maintain a child
• the proper needs of the child having regard to:
  • the manner in which child is being and the parents expected the child to be cared for/educated/trained;
  • any special needs of the child.
• the income, earning capacity, property and financial resources of the child
• the income, property and financial resources of each parent who is a party
• the earning capacity of each parent who is a party
• the commitments of each parent who is a party that are necessary to enable the parent to support himself/herself. This also includes any other child or another person that the person has a duty to maintain
• the direct and indirect costs incurred by the carer entitled to child support in providing care for the child
• any hardship that would be caused to the child or a carer.

In having regard to the earning capacity of a parent of the child, under section 117(7B), the court may determine that the parent’s earning capacity is greater than is reflected in his/her income only if the court is satisfied that:

1. one or more of the following applies:
2. the parent does not work despite ample opportunity to do so;
3. the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
4. the parent has changed his or her occupation, industry or working pattern; and
5. the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of the parent’s caring responsibilities; or the parent’s state of health; and
6. the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

Whether the change to the child support assessment is otherwise proper

If you have a reason for a change of assessment and the change is considered just and equitable, the Agency then considers whether the change is otherwise proper, considering:

1. the duty of a parent to maintain their child; and
2. the effect that the change of assessment would have on any entitlement of the carer or the child to an income tested pension or benefit: s117(5) CSAA.

What is the process for applying for a change of a Child Support Assessment?

1. Lodge a change of assessment with the Child Support Agency. There is a form that the Child Support Agency requires you to fill in when you are seeking a departure from your assessment based on special circumstances. The Application should disclose one of the ten reasons Click here to access it.
2. The Agency will provide a copy of your application to the other parent and they will be given an opportunity to respond.
3. Each party is provided with an opportunity to discuss the application with a decision maker before a decision is made.
4. The Registrar (or a senior case officer, being a delegate of the Registrar) can make enquiries and carry out an investigation. If the Registrar requires further information from a party or third parties, a notice to provide that information can be issued.
5. If the issues the subject of the application are too complex, the Registrar can refuse to change an assessment and request that the applicant file a court application. If the Registrar refuses to make a change to the assessment (2.6.3), the parties must be provided with written reasons for that decision.
6. For your application to be successful, the Registrar must be satisfied of the 3 step process specified above (s117 CSSA);
7. The Registrar will issue written reasons for the decision to change an assessment including the reasons for establishing that special circumstances existed in the case. This provides the parties with a clear understanding of the relevant considerations and decision making process. The Registrar will also document the reasons for the type and duration of the decision in the notice of decision.
8. The Registrar will amend the administrative assessment to give effect to the change of assessment decision and give the parties a written notice of the assessment (CSA Act sections 75 and 76). The assessment notice must include information about the parties’ right to object to the Registrar’s decision (4.1.2), and to apply for an AAT first review if they are aggrieved by the Registrar’s decision on the objection (section 76(3))

Departure decisions can also be the subject of objections. If the objection is not successful you can appeal the decision to the Administrative Appeals Tribunal (AAT). Appeals from the AAT lie to the Federal Circuit Court and the Family Court of Australia on questions of law.

Want more information?

For more information on challenging your child support assessment, click the link to I want to challenge my child support assessment. 

For more information on child custody click the link.

For more information on child support, child support agreements, and variation of child support assessments, contact us to book a reduced rate initial consultation with one of our experienced Brisbane Family & Divorce Lawyers to have a confidential discussion about your individual circumstances.