Child Support is the right of the child. It’s not the Father or the Mother’s right. The Family Law Act 1975 (Cth) says that parents have a responsibility towards their children which includes paying for their financial needs. So when you think of Child Support, think about your child benefiting from it, not you or the other party even when you think you are paying a large chunk of it to your ex and she or he is spending it on herself or himself and not on your child. It is expensive to raise a child and children have so many different needs which makes this area of law complex. School fees, medical, dental etc may be covered by child support.
Is there a formula for calculating Child Support?
Yes. The key components of the formula include the following:
Below is a basic formula which applies:
You must also ensure that you keep the Registrar informed of any change within 14 days. The change will allow a recalculation of the assessment to take the change into account without the need for any formal application for a departure. The Registrar is allowed to depart from a Child Support Assessment in special circumstances if required and may initiate a change of assessment. The Registrar’s decision may be reviewed by the Administrative Appeals Tribunal. If the Registrar finds that your income has been underestimated the Registrar can retrospectively reassess your Child Support and may impose a penalty if your income is found to be at least 10% greater than the estimated amount.
Yes, you can, based on your income and other factors permitting. You can also respond to an assessment to pay Child Support. The Child Support Agency has a procedure for dealing with objections and responding to objections to Child Support assessments. You should consult them to get the full facts.
Parents can choose from two types of Child Support agreements under the Act, being Binding Child Support Agreements or Limited Child Support agreements. Perth Binding Child Support Agreements mirror the requirements for a financial agreement under the Family Law Act or under the Family Court Act. Binding Child Support Agreements have the following differences from limited Child Support Agreements:
Any Child Support Agreement must contain at least one of the following:
Once an agreement is made you have the option of whether to register the agreement with the Perth Child Support Registrar. Relevant to this choice is whether an assessment is already in place and the type of Child Support that is payable under the agreement. If the agreement is registered, the payee can ask the Registrar to monitor and collect any periodic payments payable under the agreement. If arrears accrue, the Registrar has the power to garnishee the liable parents’ tax returns and treat their debt as one due to the Commonwealth. If an assessment is already in place the agreement should be registered so as to ensure that the Registrar updates the liable parents’ obligation to pay in accordance with the agreement. To register the agreement the parties must lodge with the Registrar an application for acceptance of the agreement using the form Child Support agreement. If an assessment is not in place:
The Registrar has no power to enforce payment of non-periodic Child Support, but once the agreement has been registered in the Family Court, parties may file enforcement actions themselves.
You must have an administrative assessment in place before you may register an agreement that includes lump sum payments or provisions. Whilst it is usually beneficial to have an assessment in place before registering an agreement that includes third party non periodic provisions, such as school fees, so as to properly assess the effect of such payments being credited against any assessment, it is not mandatory as the acceptance of the agreement has the same effect as an application for an assessment in that a notional assessment will issue.
An assessment is mandatory for a lump sum provision as the lump sum acts as a credit against the assessment.
When an assessment is in force, register the agreement with the Child Support Registrar using the appropriate forms. Upon receiving notice that the Child Support Registrar has accepted their agreement, a party can register the agreement with the Family Court by sending the court a letter and an affidavit setting out the relevant information.
A stay order could order the:
Like everything in life, there are advantages and disadvantages of entering into Child Support agreements.
Binding Child Support agreements cannot be varied. Neither can limited Child Support agreements. However, they can be terminated by a termination agreement or a new Binding Child Support Agreement or by Court order.
Limited agreements are more realistic as they may be ended after three years if a party so wishes or sooner in the case of a significant change of financial circumstances.
They do have to be in writing and be signed by both parties and lodged with Child Support Registrar but separate legal advice may be required.
The requirements for a limited agreement are that there must be a child assessment already in place and the annual amount payable under the agreement must be equal to or more than the assessed annual amount.
Limited Child Support agreements can be terminated by making a new Child Support agreement replacing the agreement, by an order of the court setting it aside, if the notional assessment changes by more than 15% from the previous assessment in any way not anticipated in the agreement or if one of the parties wants to end it. This provides a safeguard so that if circumstances change significantly the parties will not be locked into an agreement that does not reflect those new circumstances if more than three years has passed and a written notice is given to the Child Support Registrar by a parent who wants to end it. This recognises that it can be difficult to anticipate what will happen more than three years into the future and provides the parents and all parties with the flexibility to elect to end their agreement if it’s no longer suitable to their circumstances.
In the absence of a change of care clause, every Child Support Agreement is suspended for up to 28 days if the eligible care percentage of care drops below 35%. The suspension may apply for up to 26 weeks if their agreement provides for more than a 28-day suspension. The parties may notify the Registrar within 26 weeks that they want a suspension for more than 28 days or special circumstance may have been established. The agreement resumes if the eligible carer becomes eligible again within the relevant time. If that lapses without such a resumption, then the agreement is terminated.
A party to a Child Support agreement may apply to the Court for an order setting aside their agreement under section 136 of the Child Support assessment Act.
Grounds for setting aside such an order
To set aside the agreement the Court must be satisfied that:
For both types of Child Support agreements
Limited Child Support agreements
Binding Child Support agreements
Onus of proof
If proceedings has been instituted in a court having the power to deal with the case for a departure from the assessment, a party may apply to the court for an order staying or otherwise affecting the operation of the Child Support assessment under the hearing if the court considers it desirable to do so taking into account the interest of those who may be affected by the outcome. The court has no jurisdiction to stay an overseas order in proceedings to vary a Child Support assessment.
Relevant matters include whether refusing to grant a stay will make any assessment or agreement nugatory, the balance of convenience any financial hardship if a stay is or is not granted, the financial needs of any child, any delay in applying, the bona fides of the stay and the merits of the application.
Entering into a Child Support agreement has both advantages and disadvantages depending on your circumstances and what you are hoping to achieve by entering into one.
We recommend that you first get legal advice before entering into a Child Support agreement so that you properly understand the difference between a limited and a binding Child Support agreement, the terms of a proposed agreement and its impact on you.
Our Family Lawyers can assist you with preparing a Child Support Agreement or give you advice before preparing one to ensure your rights are protected. Our Family Lawyers can also review Binding Child Support agreements drafted by another lawyer to ensure you understand what is at stake for you.
Contact our Family Lawyers to find out whether a Child Support Agreement is right for you on (08) 9468 3297 or via email at email@example.com.
Yes. Each party is responsible for meeting the costs of their children. The cost which they are required to meet will depend on the number and the ages of the children and their needs.
Child Support payments are calculated using a complex formula. The calculations are complex but the principles are straightforward. You will need to check with the Child Support Agency itself to ensure there are no issues.
The Family Law Act states that a parent includes:
A child’s step-parent does not have a duty to provide Child Support for the child unless that step-parent treated the child as a child of the relationship and provided support to him or her during the relationship.
The responsibility to pay Child Support does not end when your ex remarries or re-partners with someone. Your monthly Child Support responsibility remains.
If you prefer the flexibility of not being tied to an agreement you can have your Child Support assessed by the Child Support Registrar and pay each month. An application for Child Support is made to the Child Support Registrar online or by telephone. The Child Support agency applies a formula under the Child Support Assessment Act 1989 to access the payment. Once the application is accepted, the Child Support Registrar would send the parties a notice of the amount to be paid and how often. The Child Support formula is flexible and considers many different family circumstances. This ensures a balanced and flexible way of working out Child Support payments.
Information provided here is of a general nature. Please ensure you contact the Child Support Agency to ensure the correctness of your assessment.
You should also ensure that you keep the support Agency informed of the following:
Administrative assessments under the Act are made based on:
You can request a DNA test. If the other party refuses to consent to one, then you can make an application to the Family Court for Orders for parentage testing.
The Family Court has power to deal with paternity disputes and presumptions of paternity issues and has the power to order parentage testing to determine if a party is the biological parent of the child.
Under the Family Law Act, a presumption of parentage arises from marriage, cohabitation, registration of birth or by a court finding, a signed acknowledgement of paternity and at artificial conception.
Rebuttal of presumption
The presumption of paternity is rebuttable by proof on the balance of probabilities.
Parentage tests or DNA Tests
If the paternity of a child is “in issue”, the court may require a parentage testing procedure be carried out for the purposes of obtaining information to assist in determining the parentage of the child. If you find yourself with questions in respect to the paternity of your child, you can apply to the Family Court for a declaration that the child is or not yours. There are two types of declaration:
The Family Court regards issues of paternity as a medical rather than a legal issue. In certain circumstances an inference can be made that a party is a parent of a child when they refuse to submit to a testing to determine the parentage of the child. Where the alleged father is under 18 years of age, concerns of a parent or a responsible person is required. A child may be forced to be tested even if he refuses when a parent or responsible person has consented to the testing on his or her behalf.
The testing to determine parentage is to be carried out by laboratories accredited by the National Association of testing authorities Australia. The testing procedure is set out in the regulations of the Family Law regulations.
The party requiring the tests usually pays for them, but parties can share costs if agreed.
Any overpaid amounts of Child Support is recoverable from the receiver, not the Registrar. Whilst an application for recovery must be served on the Child Support Registrar, liable parents and payers should be the only parties to the proceedings. The Application must be served within 56 days of receiving notice of the Registrar’s refusal to assess or accept the application for Child Support. The court may extend that time limit if required. Matters to be considered by the court as to whether to make such an order as to the amount payable whether lump sum or periodic payments includes:
Sample court cases
In the case of Forsythe & Latimer & Anor  FMCAfam 478, $39,000 was paid in child support, $9,743, was reimbursed to the father being the amount paid to the Mother after the DNA tests result had become known that the child was not his.
In another case, Levine , FMCfam 821, the respondent who it was found must have had some idea that the other party was not the father of the child and was ordered to repay $13,000 plus costs of $4,000. The court did not order the repayment of $5400 which was paid under a voluntary agreement prior to the administrative assessment.
In Radcliffe & Hall  781, the mother was ordered to repay the money by instalments, the amount of $3730 due to the party’s financial circumstances.
What does this mean for you?
These cases demonstrate that the court takes the payment of Child Support by a party very seriously and before seeking Child Support payments you must ensure that the other party is the biological parent of the child, otherwise you may be ordered to repay back all or part of the Child Support payment received. In case of doubt, seek legal advice. Email one of our Family Lawyers on firstname.lastname@example.org or call us at 9474 2832.