Child support, and what to do if you don't agree with your assessment

Many parents want certainty in relation to child support arrangements for their children following separation or divorce. In Australia, the child support system can seem overwhelming, particularly for parents who are unaware what options are available to them.

What is child support and how do I get a child support assessment?

Put simply, child support refers to the financial support provided to meet the care needs of a child. Generally, child support is determined by way of a formula, that has been set out in the Child Support (Assessment) Act 1989 (Cth) (the Act). Usually, a child support assessment is determined by the Child Support Branch of the Federal Department of Services Australia.

A parent will be liable to pay child support if they are:

• a parent of the child, whether that be biological, adoptive, or with the assistance of reproductive technology; and
• a resident of Australia, within the meaning of the Income Tax Assessment Act 1997, or a resident in a prescribed overseas jurisdiction.

In making a calculation, Services Australia will look at several factors, including:

• the income of each parent
• whether a parent cares for, or pays child support, for other children
• the cost of raising the children and their ages; and
• the level of care each parent provides

There is a high level of complexity in carrying out the child support calculations. Helpfully, Services Australia has an online child support care calculator which provides estimates. This requires details about both parents, their incomes, and the children.

That seems restrictive... What happens if the formula procedures provide for an assessment that is unsatisfactory?

If a party is unsatisfied with the amount calculated, they may bring an application for a "departure" from the child support assessment. This arises in "special circumstances", whereby the formula produces a result that is either too high or too low. Examples of circumstances where a departure from the assessment may be made are:

• a child or dependant of a parent has special needs
• the cost of childcare and/or private school fees is particularly high
• the costs of spending time with a child is particularly high; for example due to travel costs or supervision costs
• a party is otherwise contributing financially to the other party for the benefit of the child, for example meeting home loan repayments of the home in which the child resides
• a party's individual taxable income does not reflect that party's "true income" in consideration of their earning capacity, financial resources and/or assets

How do I go about changing my assessment?

The first step is to complete the "Application to change your assessment ─ Special Circumstances form" and lodge this with Services Australia to the Child Support Registrar. The other party will then be notified of this application and be given an opportunity to respond.

The Child Support Registrar will then make a decision in respect of your application. If you do not agree with the decision, you can object to the decision by filing an "Objections to Child Support Decision". In the event that you do not agree to the Child Support Registrar's decision in response to your objection, you can seek a review by the Administrative Appeals Tribunal (AAT).

In certain circumstances, you may also be able to make an application to the Federal Circuit and Family Court of Australia for a "departure order" in respect of your child support assessment.

A court will only hear and determine an application for a departure order in circumstances where:

1. the party seeking the departure order has gone through the review process via Services Australia and has sought a review by the AAT first and is objecting to that decision; or
2. the Child Support Registrar and the AAT have refused to make a determination due to the complexity of the case; or
3. the parties are already participating in an application before the court and the court is satisfied that it is in the interests of one or both parties in the special circumstances of the case to consider the departure order as part of that application.

A court will then need to be satisfied that it is just, equitable and otherwise proper to make the departure order.

Is there another way to formalise child support?

Yes ─ parents do not have to go down the Services Australia route.

Another option may be to enter into a "binding child support agreement" or a "limited child support agreement". The consent of both parties is needed to enter into such an agreement and each party requires independent legal advice from an Australian legal practitioner.

The law around binding child support agreements and limited child support agreements is complex.

To ensure that these agreements are enforceable, it is therefore critical to receive expert legal advice.

We refer you to our article Changing Arrangements: Can a Child Support Agreement be Terminated? which discusses binding child support agreements in depth and the limited circumstances in which a child support agreement can be terminated.

So, what now?

Child support can be overwhelming, and there are various options available to parents to formalise child support payments. Parents should feel empowered to make informed decisions about financial support for their children, particularly in the face of separation.

If you are in any way unsure of the how you should approach child support, Lander & Rogers' Family & Relationship Law team is able to offer practical advice to suit your specific circumstances.

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