Child support - taking care of your kids

Family & Relationship Law eBulletin - 24 July 2013

Summary

Parents – whether they are together or separated - have a primary duty to maintain their children. This duty applies even if the parents have never lived together and, in most cases, it will continue to apply until a child reaches the age of 18. Child support is often formally arranged as part of a divorce or separation settlement.

 

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Who is liable to pay child support?

If you and your partner (including same-sex partners) have children and subsequently separate or divorce, the partner who has primary care of the children may apply for child support from the other partner. 

If you are paying child support, you must continue to do this until your children are 18 years old – unless they are adopted (eg by your ex-partner’s new partner) or if the child is financially able to support themselves before the age of 18. 

In some circumstances, maintenance can also be paid for children over the age of 18 years, which is called Adult Child Maintenance. This is generally used as a means of supporting children who are legally adults, but who are still financially dependent on their parents, for example while they are studying full-time or for health reasons.

 

The Child Support Assessment Formula

The Child Support Agency (CSA) administers Australia’s Child Support Scheme and can assist separated parents with calculating, collecting and transferring child support payments.

Separated parents can either agree between themselves how much child support will be paid, or they can apply to
the CSA for an assessment. 

The CSA uses a formula to determine the amount of child support to be paid. The formula calculates each parent’s contribution towards the costs of raising a child based on the combined incomes of both parents, the child’s age and the care arrangements for the child.

An online Child Support Calculator is available from the CSA website.

 

Child Support Agreements

Separated parents who agree on how they will financially support their children have the option to make a child support agreement outlining the amount of child support to be paid and to lodge this with CSA. The CSA can act as an intermediary, arranging to collect and transfer child support payments on behalf of the parents. Alternatively, parents can arrange the transfer of payments themselves if they prefer.

There are some conditions that must be met before the CSA will accept a child support agreement. For example, parents who agree to less child support than the amount assessed under the child support formula must prove that they have received legal advice about their child support agreement.

Parents can make child support agreements to determine the way in which child support is paid. The most common payment methods being:

  • periodic cash payments (for example a set amount per month); 
  • non-periodic payments (such as school fees paid directly to the school); or 
  • a lump sum payment (including by way of property settlement).

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Binding vs limited child support agreements

There are two types of child support agreements:

  • Binding child support agreements; and
  • Limited child support agreements.

The features of the binding and limited child support agreements are compared in the table below.

 

 Binding Child Support Agreements   Limited Child Support Agreements 
  • Must be in writing and signed by both parties.
  • Parties must both obtain independent legal advice regarding the advantages and disadvantages of the agreement and a solicitor’s certificate must be attached.
  • Does not require a child support assessment by the CSA.
  • Amount of child support can be greater or less than the
    amount that would be determined by the CSA.
  • Possible for a parent to pay child support periodically 
  • or in a lump sum.
  • Does not automatically expire, but parents may choose to include an expiry date in their agreement.
  • May be replaced or varied but only in very limited circumstances. 
  • Must be in writing and signed by both parties.
  • Does not require the parties to obtain independent 
  • legal advice.
  • A child support assessment must be in place.
  • Agreement must be accepted by a Child Support Registrar.
  • Amount of child support must be equal to or greater 
  • than the CSA’s child support assessment. 
  • Child support payments must be made periodically 
  • (not possible to make lump sum payments).
  • Have a “sunset” clause of three years, after which either party can give written notice to the CSA to have the agreement terminated.
  • Can be terminated at any time or replaced by a new agreement. 

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.