Australia Child Support Lawyers
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Child Support Practices Law, Insights & Tips 2023
The Complex World of Child Support in Parenting Matters
Dealing with child support and binding private agreements: insights, facts and information with expert legal tips, from Senior Lawyer Jaswinder (Jas) Sekhon, Principal, Goldman Law.
Binding child support agreements start from $750 to $1,200 in lawyers’ fees. We also can provide clients with “Guided Self Help”. Read about the issues and complexity in my article below.
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Child Support in Australia: A Comprehensive Overview
Introduction
Child support plays a fundamental role in ensuring that both parents contribute financially to the upbringing of their children following separation or divorce. It aims to provide adequate financial support for the child’s day-to-day maintenance, expenses, housing, activities, and education. In this article, we will explore the different aspects of child support under Australian law, including private agreements, the Department of Human Services collection, binding and limited child support agreements, and the recovery of child support payments.
Private (Informal) Collection
Parents have the option to agree privately on how to support their children after separation. This informal arrangement is suitable when there is a clear agreement between the parents for payments, amicable communication about child support, and when the receiving parent can rely on the other parent to make timely and full payments. While the private collection plan does not need to be disclosed to the Department of Human Services (DHS), it is advisable to have the agreement in writing and signed. Disputes can arise from such informal agreements, as there is no legal obligation for the parents to comply with the terms.
“Private agreements for Child Support can be a source of conflict and uncertainty between parents. It is important for both parties to clearly communicate and document their agreement to minimize the risk of disputes.”
Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
Department of Human Services Collection
The DHS, also known as the Child Support Agency, provides a common method for parents to pay and receive child support in Australia. The process begins with an assessment of the amount of child support to be paid, which is determined using a formula that considers both parents’ income, the number of children, and the level of care provided by each parent. The DHS offers various payment options, including direct debit, credit card, BPAY, and automatic payments from Centrelink. In cases where a parent fails to pay the required child support, the DHS has enforcement options available, such as wage garnishment, tax refund interception, and legal action.
“Child Support assessments by the DHS provide a structured approach to determining the financial responsibility of parents. However, enforcement mechanisms need to be strengthened to ensure compliance and timely payment.”
Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
Binding Child Support Agreement
A binding child support agreement is a legally enforceable agreement between parents that sets out the amount and method of child support payments. It offers flexibility, allowing parents to negotiate and agree on the payment amount and frequency that suits their specific circumstances. This agreement provides certainty and security for both parents and children by clearly outlining the obligations and expectations. However, it can be difficult to modify if circumstances change, and legal costs may be involved in creating such an agreement.
“Binding child support agreements offer parents greater control and flexibility in determining child support payments. However, parties should carefully consider the long-term implications and seek legal advice before entering into such an agreement.”
Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
Limited Child Support Agreement
A limited child support agreement is another legal agreement between parents that specifies the amount and method of child support payments. Unlike a binding child support agreement, a limited child support agreement is limited to a duration of three years. It offers simplicity and can be created without requiring independent legal advice. Similar to the binding child support agreement, it provides flexibility and certainty for both parents and children. However, the limited duration and difficulties in enforcing the agreement pose potential challenges.
“Although limited child support agreements can be more straightforward and cost-effective, parties should be aware of the limitations and potential difficulties in enforcement.”
Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
Typical Legal Fees and Practical Issues
When it comes to private agreements, the costs can vary depending on the complexity of the agreement and the need for legal advice. Generally, it is advisable to consult with a family law expert to ensure that the agreement is legally sound and adequately protects the rights and interests of both parties. Typical legal fees for creating a binding child support agreement or a limited child support agreement can range from $800 to $1,200, depending on the complexity of the case and the involvement of senior legal professionals.
Practical issues may arise when implementing private agreements. Clear communication and documentation are essential to avoid misunderstandings and disputes. It is recommended to have the agreement in writing, signed by both parties, and preferably witnessed. This helps establish a clear record of the agreed-upon terms and provides evidence in case of future conflicts. Parties must consider seeking legal advice to ensure that the agreement aligns with their legal rights and obligations under Australian law.
Recovering Child Support Payments
In cases where a parent fails to pay the required child support, there are steps that can be taken to recover the payments. Initially, it is advisable to contact the Department of Human Services/Child Support Agency to report the non-payment and provide evidence to support the claim. The DHS has enforcement actions available, such as deducting payments from income support, working with third parties for deductions, and issuing travel prohibition orders [9]. If the DHS is unable to recover the outstanding child support, legal action can be pursued through the family court to obtain an enforcement order. It is crucial to seek legal advice and assistance for such complex proceedings.
“Recovering Child Support payments requires proactive action and collaboration between parents and relevant authorities. Timely intervention can help prevent further financial difficulties and ensure the well-being of the child.”
Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
Conclusion
Child Support plays a significant role in securing the financial well-being of children after separation or divorce. While private agreements can provide flexibility, they may lead to disputes without legal obligations. The Department of Human Services offers a structured approach to child support collection and distribution, with enforcement mechanisms in place. Binding Child Support Agreements offer greater control and certainty, albeit with potential difficulties in modification. Limited Child Support Agreements provide simplicity but have limitations and enforceability challenges. It is crucial for parents to understand their rights and obligations, seek legal advice, and take necessary steps to recover Child Support payments promptly.
References:
- Child Support Estimator. Retrieved from https://processing.csa.gov.au/estimator/About.aspx
- Department of Human Services. Learning about Child Support. Retrieved from https://www.servicesaustralia.gov.au/learning-about-child-support?context=60015
- Department of Human Services. Managing your Child Support agreements. Retrieved from https://www.servicesaustralia.gov.au/managing-your-child-support-agreements?context=60015
By Jaswinder (Jas) Sekhon, Senior Lawyer and Principal of Goldman Lawyers, Family Law Expert
Child Support Quick Facts & Fees 2023
- About 3% of separated parents use courts as their main pathway to making parenting arrangements (based on a sample of about 6000 separated parents about 18 months after separation). These are predominantly families affected by family violence, child safety concerns and other complex issues.
- Most (97%) separated parents do not go to court to decide their parenting arrangements, although 16% use family dispute resolution services or lawyers.
- A study based on court files shows that in both court and non-court ordered arrangements, it is most common for children to spend the majority of their time with their mother and to see their father regularly.
- In the small proportion of cases determined by a judge, 45% of court orders provide for sole parental responsibility by the mother, and 11% for sole parental responsibility by the father.
- Orders for no contact with one parent are rare: 3% of all court orders.
- There are two significant ways in which court orders and arrangements in the general separated population differ:
- Court ordered arrangements are less likely to involve no contact between children and their father: only 3% of court orders, compared to 9% of the general separated population.
- Arrangements where children spend most of their time with their father are more common in orders made where litigation occurs (10–19%) than in the separated population generally (2%).
© Data from 2023 Australian Institute of Family Studies
- A study based on court files shows that in both court and non-court ordered arrangements, it is most common for children to spend the majority of their time with their mother and to see their father regularly.
Why Do Mothers Have Higher Custody Statistics Than Fathers?
- There are several reasons why mothers have higher custody statistics than fathers in Australia. One reason is that the child is often placed in the mother’s primary care whilst the father pays child support to the mother.
- Typically, the mother is the child’s primary caregiver
- Child custody is of critical importance to parents, and the mother vs father custody statistics in Australia can help inform your decisions.
- To provide some context, the 2006 Australian Bureau of Statistics found that around 42% of children aged less than 18 years lived in single-parent households, and this number continues to grow each year.
- The Australian Institute of Family Studies also found that 20% of children lived in blended families where they have step-brothers and sisters and a step-parent.
Key messages
- Most children are faring well after separation, according to their parents.
- Children in families affected by family violence are less likely to be doing as well as those in families not affected.
- Children and young people want their views to be considered and taken seriously by parents and, where applicable, by family law professionals, especially when safety concerns are raised.
More info/help
https://www.csmc.org.au/advocacy/child-support/
Further reading
- Child and parent-friendly summary. (2018). Children and young people in separated families: Family law system experiences and needs. Melbourne: Australian Institute of Family Studies.
- Parenting arrangements after separation. (2019). Research summary. Melbourne: Australian Institute of Family Studies.
© Data from 2023 Australian Institute of Family Studies
A parent who seeks child support can apply to the agency to obtain a child support assessment which determines the periodic monthly payment that a parent is liable to pay. In determining this assessment, the Child Support Agency collects both parents' financial information inclusive of their taxable incomes and then considers the percentage of care that each parent have with the child.
The Child Support Agency then applies a formula to calculate the amount of the child support. A parent thereafter elects as to whether they wish for the child support to be collected by the child support agency or by a private collection.
It is possible for parents to agree to child support payments outside of the assessment process. For example, this might be a lump sum of child support, or payment of school fees or other costs, or some other variation of the assessment. For these parents, they can enter into a child support agreement, which can be either limited or binding.
Question
If a parent refuses to make payment and the debt accrues then the Child Support Agency has the following powers:
- Make the liable parent’s employer deduct amounts from their pay.
- Intercept and use a tax refund to meet an outstanding child support payment.
- Deduct lump sums from a liable parent’s bank account.
- Recover child support from an income support payment.
- Issue the liable parent with an overseas travel ban which prevents them from leaving Australia.
- Commence Court proceedings against the liable parents if other enforcement methods don’t work. The Court will have regard to any asset or income stream of the liable parent.
- Additionally, if a parent is late in making their payments, then the Child Support Agency may apply a penalty on the accrued debt. This penalty is not paid to the recipient of child support but rather to the Australian Government.
- The non-payment of child support is considered a serious issue in. If a parent ceases or refuses to make child support payments or tries to diminish their income so that their liability is decreased, then if requested, the agency can investigate the circumstances of that parent. Specifically, the child support agency target individuals whose lifestyles do not match their income. The Agency may also scrutinise those who work in occupations that are commonly paid cash in hand, self-employed individuals, and individuals attached to companies, trusts and partnerships which have the capacity to hide or reduce income.
The payment of child support can be a sensitive subject and parents often link it to the arrangements in place for the children spending time with each parent.
However, there is separate legislation governing parenting arrangements and payment of child support
Recent Media and $1.6 billion in unpaid child support
https://www.abc.net.au/news/2023-03-25/child-support-system-used-to-financially-abuse/102123126
Men's views and support
This is a summary of information that has been provided by men and where we have access to research and other data. Goldman Law provide this as an essential requirement for both parents to be aware of so that they do not make mistakes and rely on the Government to collect child support for you.
Enter into binding child-support agreements prior to separation. Speak to Goldman Law now.
1. See Your Children More
The single best thing for avoiding child support is to spend time with your children. How much you pay basically depends on how many nights per fortnight the children spend with you. Child support payments are lower if you have at least 2 nights with the children per fortnight. The amount drops again if you have 5 nights and then keeps reducing as the number of nights increase. See the online calculator / estimator.
To have more time with the children, ideally you can come to a mutual agreement with the other parent. Otherwise, you'll need to go through a court process (which starts with mediation).
2. Make a Binding Child Support Agreement
Number 2 on the list is a binding child support agreement. This is where you and the other parent agree on how much child support will be paid over a specified period. The precise terms of the agreement are up to the parties.
To be recognised by Child Support, you both need to (i) get legal advice and (ii) obtain a legal certificate to attach to the agreement.
Getting an agreement which is legally binding protects the parties involved.
If it's not binding, the agreement won't be recognised by Services Australia.
That means the government process would continue (if you're already in the system) or could be initiated by either party at any time (including calculation of arrears and ongoing payments).
3. Don’t Chase Pay Increases?
(Stupid)
4. Become Self Employed
If successful in self-employment, you control how much income you earn and, therefore, how much child support must be paid. Note to some extent- seek legal advice first
5. Pay Only What You Receive Credit For
The rules around what counts as child support often don't favour payers. So be careful before paying for anything out of your own pocket or sending money to the other parent. Make sure it counts as child support, which may require you getting written acknowledgement by the other parent.
6. Inform Child Support if Your Income Drops
7. Lodge Tax Returns Quickly if Your Income Drops
8. Avoid Triggering a Change of Assessment (COA)
9. Initiate a Change of Assessment
10. Have More Children
References
- Child support obligations: what you can do reduce payments (The Australian, 13 Feb 2018).
- Deadbeat parents shown how to 'legally' avoid child support (Daily Examiner, 9 Feb 2018).
- Summarized from: https://childsupportaustralia.com/avoid-paying-legally/
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