child support

Child Support Agency payments include:

• Periodic payments: a regular amount on a recurring or cyclical basis.
• Non-periodic payments: for things like payment of private school fees. The court must state whether or not the non-periodic payments will reduce the annual rate of child support. (s. 125).
• Lump sum provision: a payment made to the other parent as a "credit balance" to be used to meet ongoing liabilities (s. 69A). It must specify what percentage of these liabilities are to be met by drawing on the lump sum.

Non agency payments include:

• payments made directly to a payee (s .71);
• payments to third parties to discharge a debt owed by the payee, the payer, or both (s. 71A); or
• a non-cash transaction such as the provision of services (s. 71B)

The Child Support Agency cannot enforce child support payments against third parties.

There are two types of child support agreement:

Binding agreements are formal agreements, in writing, signed by both parents.

Binding agreements must include an annexure, for each of the parties, signed by the person who provided the legal advice, which certifies that they provided the advice. (section 80C).

They can only be entered into on legal advice and must include a statement to the effect that each party has received independent legal advice regarding the effect and advantages and/or disadvantages of the agreement.

The agreement cannot be varied and can only be terminated. The grounds for terminating a binding agreement are limited (s.136) and when drafting it the lawyer needs to 'think ahead' to provide for various contingencies, such as changes to the parents' financial circumstances unemployment or change in care arrangements.

Binding agreements can be made for any amount that both parents agree on. When calculating the amount of any Family Tax Benefits or other payments to be mad, Centrelink will base payments on the notional assessments of child support, not the agreed amount.

Limited agreements:

There must be an administrative assessment in place at the time that the limited agreement is entered into and it must not provide for payment which is less than the assessment.

They cannot be varied but can be ended by a new limited or binding agreement or a court order. These do not require legal advice.

They must be lodged for acceptance with the Child Support Agency and accepted by the Child Support Agency before the agreement can take have effect.

To terminate the agreement, one party can give notice to the Registrar after three years.

Changes of more than fifteen percent from what was agreed in a child support agreement, enables the agreement to be unilaterally terminated. A notional child support assessment can be made at any time.

Australia has child support arrangements with many overseas countries. These are referred to as reciprocating jurisdictions (s.29B). Some reciprocating jurisdictions can only recognise court orders for child support. These are known as excluded jurisdictions.

On international issues, the Child Support Agency can:

1. accept an application for a child support assessment from an overseas Central Authority applying on behalf of a payee in a reciprocating jurisdiction;
2. make and continue a child support assessment where the payer resides in a reciprocating jurisdiction, provided that the other parent is an Australian resident.
3. accept an application for assessment from a payee or payer overseas when transmitted through the overseas Central Authority;
4. accept an application for assessment made directly by the payer who is a resident of a reciprocating jurisdiction;
5. register and enforce an overseas 'agency reimbursement liability';
6. register and enforce an overseas maintenance assessment or order
7. register and enforce an overseas maintenance agreement;
8. transmit an application for review or variation of a liability made in an overseas country; and
9. register and enforce arrears that have accumulated under an overseas maintenance liability;
10. help overseas authorities with location and service requests for parents in Australia.

1. The child must be under 18 years of age, must have a connection to Australia and must not be a member of a couple (s .24).
2. The Act applies to those children whose parents separated on or after 1 October 1989 (s .20) or who were born after that date (s .19) or who have a sibling who is an eligible child (s .21).
3. Child support terminates when the child is no longer eligible, or when a terminating event occurs (s.12).

1. The applicant must be an eligible carer of the child (s .25); (s .25A).
2. The person must be legally separated from the other parent (s .9).
3. The person must be an Australian resident or resident of reciprocating jurisdiction (s .29A).
4. A parent's duty to maintain the children of one relationship has equal priority with their duty to maintain children of any subsequent relationship but is subservient to the primary duty of a parent to maintain himself or herself (s .66C) of the Family Law Act 1975 and Ganter and Grimshaw [1998] FamCA 52 (12 May 1998).
5. If two parties jointly have care of a child, then only one of the joint carers may apply for child support (s.26).

Relevant provisions of the Child Support(Assessment) Act include:-

• (s.80C) - Binding Child Support Agreements
• (s. 80CA) - No variation of Binding Child Support Agreements
• (s. 80D) - Terminating Binding Child Support Agreements
• (s. 80E) - Making Limited Child Support Agreements
• (s. 80F) - No variation of Limited Child Support Agreements
• (s. 80G) - Terminating Child Support Agreements
• (s. 81) - Requirements for a Child Support Agreement
• (s. 82) - Children in relation to whom agreements may be made
• (s. 83) - Persons who may be parties to Agreement
• (s. 84) - Provisions that may be included in Agreements.
• (s. 136) - Power of Court to set aside Agreements.

Either parent may object to the decision (s.89) within 28 days (s.90).

Once an objection decision has been made, either party can appeal to the Social Security Appeals Tribunal - see http://www.ssat.gov.au

Parents can appeal to the Social Security Appeals Tribunal (SSAT) either by way of an appeal form or by initiating the appeal by phone,.

After an application for a review of a Child Support Agency decision is received by the SSAT, a Case Manager will be assigned. Copies of the application are sent to the other parent and the Child Support Agency.

The Child Support Agency then has 28 days to provide the SSAT, the applicant and the other parent with a written explanation of its decision and any other relevant papers from the Child Support Agency file.

Once these documents have been received, the SSAT notifies the applicant and the other parent of an appointment time for a SSAT Hearing, or in some circumstances, a pre-hearing conference.

An SSAT Appeal usually takes 10-12 weeks from the date of lodgement.

Once the review has been determined the SSAT will provide the decision and the reasons for the decision.

Parties can appeal the SSAT decision in Court (usually the Federal Magistrates Court), but only on a question of law. Appeals as to the refusal to grant a time extension and 'care decisions' can be made to the Administrative Appeals

An objection to the agreement must be lodged within 28 days of the original decision (unless an extension of time is granted), outlining the grounds relied upon. The other party will be given the opportunity to respond.

Once the Child Support Agency has made a decision on a matter of child support, each parent can object to the decision and the Child Support Agency will conduct an internal review of the decision (s.80).

The Registrar must consider the objection and any response within 60 days of the objection being lodged and must either disallow the objection or allow it in whole or part.

Written notice of the decision of the Registrar must be provided to the parties (s.87).

The Child Support Agency's approach to collecting overdue child support is guided by the compliance strategy – CSA: Supporting parents to meet their child support responsibilities 2008-2010.

The Child Support Agency has extensive investigative powers to obtain information and evidence as to child support payments (s.120). It also has extensive enforcement powers for collection of child support, including:

1. Deductions from social security pensions and other benefits (s. 72AA);
2. Collection from Third Parties (s. 72A), for example employer deductions of arrears
3. Tax Refund Intercepts (s. 72);
4. Litigation – the Child Support Agency (s. 113) and/or the payee(s. 113A) is entitled to enforce the assessment through the Court system.
5. Departure Prohibition Orders (DPOs) (s. 72D) - A DPO is an administrative order that the Child Support Agency can issue to prevent parents from leaving Australia until they pay their overdue child support or negotiate a satisfactory payment arrangement;

Parents can seek changes to a child support assessment on the following basis:

1. Court application;
2. Reaching an agreement with the other parent;
3. Non-agency payments;
4. Objection to the level of care;
5. A parent’s income changes; or
6. A “terminating event” occurs.

Once an administrative assessment has taken place, either parent may make a “Change of Assessment” Application to make a departure from the administrative assessment because of special circumstances (s. 117).

The leading authority on the interpretation of s.117 is In the Marriage Of: Elaine Fay Gyselman Applicant/Wife and Robert George Gyselman Respondent/Husband [1991] FamCA 93 (19 December 1991).

The key components of Change of Assessment applications are:

1. That either parent can make a departure application or the registrar can initiate the process.
2. That there are ten set reasons for a Change of Assessment Application - see Change of assessment form.
3. The decision cannot change the assessment for a period more than 18 months before the applications was made.
4. The decision cannot reduce the assessment below the minimum rate.
5. That the application, any response or other documents are exchanged between parents.

Courts can hear the following child support matters (see s. 98W):

1. Declaration as to whether a person has an entitlement – parentage issues (s. 106A) and (s. 107);
2. An appeal of a decision of the SSAT in relation to a question of law;
3. Where a party is seeking leave under (s. 111) to depart from assessments that are older than 18 months (to a maximum of 7 years);
4. Stay orders - an application for stay orders can be made if there are court proceedings on foot, a change of assessment application or objection is being considered by Child Support Agency or the SSAT is considering an application for review(s. 111C);
5. The variation or the setting aside of a Child Support Agreement; Modification of Child Support Orders;
6. A recovery of Child Support paid where no liability exists to pay Child Support (s. 143)
7. Substitution orders (s. 123) - Child support to be paid to the person with day-to-day care of the child in a form other than periodic cash payments — such as private school fees, lump sums, school fees, chattels, medical insurance or food;
8. Applications for further education expenses by children over the age of 18 years (s. 66LUrgent maintenance orders pursuant to (s. 139);
9. Where the parties are both involved in other proceedings pending before the Court, and the Court considers it convenient to deal with a child support departure application at the same time(s. 116);
10. Applications for child bearing expenses (s. 67B), (s. 67C), (s. 67D) of the Family Law Act 1975);
11. Where parties are making an application for lump sum child support under (s. 124);
12.  of the Family Law Act 1975); and
13. The Court’s general powers under (s. 141).

A copy of all applications must be served on the Child Support Agency (FLR 4.23)

The assessment and collection of child support is primarily the responsibility of the Child Support Agency – see http://www.csa.gov.au/.

The relevant acts are:

1. CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988 - deals with collection and enforcement.
2. CHILD SUPPORT (ASSESSMENT) ACT 1989 - deals with the assessment process and jurisdictional issues.

Both Acts are supplemented by Regulations.

A raft of changes came into force on 1 July 2006 following the passing of the CHILD SUPPORT LEGISLATION AMENDMENT (REFORM OF THE CHILD SUPPORT SCHEME - NEW FORMULA AND OTHER MEASURES) ACT 2006.