Who can apply for child support?
Any person who has the care of a child can apply to the Child Support Agency (CSA) for an assessment of child support as long as the child is present in Australia or an Australian citizen.
In order to claim child support from another person, a presumption of paternity must apply as follows:
A person can apply for a Child Support Assessment by contacting the CSA directly. Please see www.csa.gov.au for more details.
How much child support is paid?
The amount of child support paid will depend upon various factors including:
The CSA use a complex calculation to determine the amount of child support to be paid. You can obtain a more precise estimate of child support by using the child support assessment calculator at www.csa.gov.au.
If you receive a Child Support Assessment and you believe that you require more or less child support than assessed you can apply to the CSA for a change of assessment. This is an internal CSA review.
A change of assessment can only be applied for if at least 1 of the 10 reasons apply. These factors are as follows:
1. Your capacity to pay child support is significantly reduced because of the high costs associated to enable you to spend time or communicate with the child.
The costs must equate to more than 5% of your income and include such costs such as travel, accommodation, and phone calls.
It does not include entertainment, food, or clothing. Further where a parent spends more than 52 nights per year with the child, the CSA will only allow for costs of travel.
You will need to provide receipts to be successful.
2. The costs of maintaining the child are significantly affected because of the child's special needs.
This factor is usually used in circumstances where the child suffers from a medical condition.
You can only claim out of pocket expenses after the rebate has been paid. You will need to provide receipts, medical reports or other information that reflects the child's condition and treatment requirements.
3. The costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in a way intended by both parents.
This factor is used in circumstances where the child is being educated in a private school and it was the agreement of both the parents prior to separating, that the child would attend private school.
You will need to provide evidence that it was the intention of both parties for the child to attend private school. You will also need to provide an estimate or invoice for the cost of the schooling fees.
4. The Child Support Assessment is unfair because of the child's income, earning capacity, property or financial resources.
This factor would apply in circumstances where the child is working and earning an income or receives an income from a Trust. The child’s income must be high enough to reduce the amount of child support.
Part time employment at, say, a fast food outlet is not likely to impact on the child support payments.
5. The Child Support Assessment is unfair because you have paid money to the child, other parent or a third person for the benefit of the child.
This factor is usually raised in situations where the paying parent has already paid lump sum amounts of money to the caring parent (say for property settlement), or has put money into a Trust on behalf of the child, or has paid for schooling for the child or extra-curricular activities.
To successfully argue this factor you will need to:
6. The costs of caring for the child are significantly affected because of the high costs of child care and the child is under 12 years of age.
The child care costs need to be more than 5% of your income. You will also need to provide receipts of the cost of child care and can only claim the out of pocket expenses once the rebate has been claimed.
7. Your necessary expenses significantly affect your capacity to care for the child.
This factor will be relevant where you have additional expenses above the normal range of expenses. This would include such things as medical expenses. It is important to note that the expenses must be necessary and not merely optional. An investment expense will not be considered necessary.
To be successful with the factor you will need to provide evidence of your income, receipts for the expenses and evidence that you are impacted by the additional expense, i.e. bank accounts showing the limited funds etc.
8. The Child Support Assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
This is the most commonly used reason and is used in circumstances where one parent has not properly declared their income, or one parent owns a business, or a parent is in receipt of income from a Trust.
To be successful with this reason you need to provide evidence of their income, qualifications (if one has quit their job), evidence of Trusts or other income. If a person owns a business they will need to provide profit and loss statements.
9. Your capacity to support the child is significantly affected by your legal duty to maintain another person or child.
This factor applies to caring for biological children, spousal maintenance, or spouses who cannot support themselves, or step-children in circumstances where a court has ordered a person to financially maintain the step-child.
You will need to provide evidence of Court Orders, reasons why the person cannot maintain themselves and receipts to be successful.
10. Your responsibility to care for a resident child significantly reduces your capacity to financially support your child.
This reason is used where one person is living with another person and their biological child and paying for the support of both the child and other person.
To be successful with this factor the following need to apply:
You will need to provide evidence of the situation concerning the child's parent and evidence of the child's need for financial assistance.
You can find the application for a change of assessment form at the CSA website.
Once the above factors are considered by a senior case review officer, a decision will be made in relation to your change of assessment application. The case review officer has a broad power to make determinations which include the following:
If you receive the change of assessment decision and still disagree with the decision then you can appeal the decision by notifying the child support registrar that you object to the decision.
You MUST write to the child support registrar and advise them you object to the decision that was made within 28 days.
If you do not object within that time the child support registrar can refuse to consider the matter.
Your objection must outline the reasons why the decision is incorrect, for example, the decision calculated that I received $100,000 of income however I only receive $80,000.
You can provide further evidence to support your objection and we suggest that as much evidence be provided as is possible to support your argument otherwise you risk the objection being refused.
If your objection is rejected you may then apply to the Social Securities Appeals Tribunal (SSAT) for your matter to be determined. This tribunal is less informal than a court however their decisions are binding.
Please see the SSAT website for further information on the tribunal procedures.
If you are having difficulty with your change of assessment application, we have experienced lawyers available who can assist you with drafting your application for a change of assessment or appealing a child support decision.
If both parents agree to the terms of child support then the parents can choose to enter into a Child Support Agreement. There are 2 types of Child Support Agreements:
1. Limited Child Support Agreement
A Limited Child Support Agreement is an agreement that is entered into by the parents regarding the amount of child support that needs to be paid.
A person does not need legal representation to enter into a Limited Child Support Agreement.
To enter into a Limited Child Support Agreement the following must occur:
Under a Limited Child Support Agreement the CSA will make an assessment to ascertain that amount of child support payable if the agreement didn't exist.
The CSA will conduct a reassessment of the child support payable:
A Limited Child Support Agreement ends when:
2. Binding Child Support Agreement
The parties can choose to enter into a Binding Child Support Agreement to set terms for:
A Binding Child Support Agreement varies from a limited agreement in that:
A Binding Child Support Agreement can only be terminated if:
- Both parties enter into a new binding child support agreement,
- Both parties enter into a termination agreement,
- The child turns 18 or completes school (whichever the later) or other date as specified in the agreement,
- A court sets aside the agreement on the basis that it was entered into under duress, fraud, misrepresentation.
While Binding Child Support Agreements assist with providing clarity and finality to negotiations for child support it can also limit the flexibility of the parties depending how it is written.
We strongly suggest that a person contemplating this type of agreement to have a lengthy discussion with their lawyer and consider the terms of the agreement before signing.