Child Support

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:

  • the parties were married and not divorced at the time of the birth of a child;
  • the parties were living together between 44 to 20 weeks prior to the birth of a child;
  • the party is named on the birth certificate as the biological parent;
  • a party signs a statutory declaration stating they are a parent of the child;
  • the child was adopted by a party;
  • the child was conceived via artificial means to the two parties;
  • the child was born with the assistance of a surrogate;
  • a Court Order has been made confirming the parentage of a child.

A person can apply for a Child Support Assessment by contacting the CSA directly.  Please see humanservices.gov.au for more details.

The amount of child support paid will depend upon various factors including:

  • how many nights the child spends with each parent;
  • the taxable income of both parents (this is the amount earned before tax is paid);
  • the age of the child;
  • any other special needs or circumstances.

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 processing.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 sought for one or more of the reasons listed below:

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.

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.

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.

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.

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:

  • provide receipts or evidence of the money being delivered to the other party, and
  • provide evidence that the money was paid specifically for the purposes of child support.

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.

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.

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.

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.

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:

  • the child normally lives with you but is not your biological child;
  • the child is under 18 years;
  • the child is not in a couple (eg. Defacto relationship);
  • you are living with, and have lived for at least 2 years, with a biological parent of that child;
  • one of the following applies to either parent of that child;
    • the parent is deceased;
    • the parent is unable to support the child due to ill health ;
    • the parent cannot support the child due to caring responsibilities;
    • the child needs financial assistance.

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:

  • either increase or decrease the amount of child support payable;
  • determine how much time each parent is spending with the child for the purposes of the child support assessment;
  • set an amount for a parents income even if it is different to that actually received;
  • backdate child support payments

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 AAT (Administrative Appeals Tribunal (Child Support Division)) for your matter to be determined. This tribunal is less formal than a court however their decisions are binding.

Please see the AAT 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 3 types of Child Support Agreements:

  1. Limited Child Support Agreement
  2. Binding Child Support Agreement
  3. Terminating 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:

  1. An assessment for child support must have been applied for and accepted by the CSA,
  2. The agreement must cater for child support payments equal to or more than child support payments as assessed by the CSA.

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:

  • Every 3 years, or
  • if a person’s income changes by more than 15%, or
  • each party asks for a further CSA assessment.

A Limited Child Support Agreement ends when:

  • both parties agree to end the agreement, or
  • after 3 years, upon the giving of written notice to the other party, or
  • the CSA assessment varies by more than 15% and one party chooses to end, or
  • a Court Order sets the agreement aside, or
  • the parties enter into a new agreement.

The parties can choose to enter into a Binding Child Support Agreement to set terms for:

  • the amount of child support to be paid, or
  • the amount of nights spent with each party for the purposes of calculating child support, or
  • how the child support is to be paid, or
  • how the child support is to be calculated.

A Binding Child Support Agreement varies from a limited agreement in that:

  • each party is required to be legally represented,
  • the legal representative must sign a statement that they have provided independent legal advice,
  • a Child Support Assessment is not required,
  • the agreement can reduce a person’s child support payments to less than assessed by the Child Support Agency,
  • the agreement continues until a terminating event occurs, or by Court Order sets the agreement aside.

A Binding Child Support Agreement can only be terminated if:

  1. Both parties enter into a new binding child support agreement,
  2. Both parties enter into a termination agreement,
  3. The child turns 18 or completes school (whichever the later) or other date as specified in the agreement,
  4. 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.