Many people concerned about ensuring that their children are adequately provided for will come into contact with the law governing child support. However, it is a particularly complicated area that can be especially difficult to apply in complex family situations. At Szabo & Associates Solicitors our family lawyers are regularly called upon to advise on how this area of the law applies to parents who owe responsibilities in caring for their children.
Child support is the payment of money by a child's parent in order to assist with the financial cost of raising a child after divorce or separation. The Child Support (Assessment) Act provides that the parent who is the ‘primary carer’ of a child is entitled to make a claim for child support from the other parent.
Child Support arrangements are administered by the Department of Human Services of the Australian Government, which also decides on the level of financial support that is required in order to adequately provide for a child’s welfare via child support payments. The calculation of child support is based on consideration of three things: the income levels of both parents; the number of children that a couple have between them; and the living arrangements of, and level of care provided by the parents to, the children.
Working with others
There are different ways to go about organising child support. Much will depend on the situation and whether or not a couple want to work with other parties in deciding the level of support required for their children, or if they would prefer to come to the decision themselves.
If a couple is in need of assistance in determining the level of financial support that is warranted, then they can work with the Department of Human Services to arrange for this to be organised. This essentially involves the Department’s use of the formula mentioned above, to calculate the level of child support that is appropriate in the circumstances. It is important to point out that the formula used to determine the level of child support that is required is not necessarily fixed: it will take into account the financial resources of both parents and the costs associated with a child, but it can also be augmented to consider special circumstances if the situation requires it.
It should be noted that the reasons for departing from the formula to calculate child support are limited by statute. Parties must be careful to provide sufficient and credible evidence if they wish to depart from the established formula for calculating child support. This will normally involve the provision of the requisite paperwork to the Department of Human Services. It is also important to keep in mind that the other party who will be called upon to make payment will be provided with copies of the material that is provided, in order for them to make their own representations on the appropriateness of the financial support that is sought.
The courts do have some involvement in dealing with applications for child support, but only in limited circumstances, e.g. where there is a significant disagreement between parties on the level of child support which cannot be resolved using the internal procedures available to the Department of Human Services, or where matters are so complex that the involvement of a court is required.
Once an assessment of the appropriate level of child support is carried out, the parties can use this information to enter into an agreement setting out how payment of child support will be provided. This agreement is sometimes referred to as a ‘limited child support agreement’.
Limited child support agreements tend to be used when parents want to retain some degree of flexibility in respect of child support payments, but are not best suited to long-term arrangements. It is important to note that a limited agreement will not be acceptable to the authorities until an assessment has been carried out to determine what level of child support is required in the circumstances; and the amount of money set out within the child support agreement is either equal to or above that highlighted in the child support assessment.
As a matter of law, it isn't a requirement that legal advice is taken on the content of a limited child support agreement. However in practice, it is advisable for a lawyer to have sight of the terms of any agreement, so to ensure that they are drafted with sufficient clarity and that parties understand their responsibilities under the agreement.
There is an option for parents not to involve other parties in deciding on the level of child support. This can be achieved through the use of a ‘binding child support agreement’. These agreements are similar to limited child support agreements but have some key differences. For instance, it is a requirement that legal advice is sought on the terms of the agreement, and that both parties’ lawyers provide written evidence that legal advice has been given. Furthermore, there is no requirement for a child support assessment to have been carried out prior to an agreement being entered into. It is also important to note that the level of child support that is set out in the agreement can be less than the amount stipulated in any child support assessment, if one has been carried out.
The utility of working with government departments and entering into one or another agreements will depend on the particular circumstances, and should be the subject of discussion with an experienced lawyer who regularly deals with child support matters.
In most cases, government bodies will attempt to negotiate with a parent who fails to meet their obligations in respect of child support payments. However, if payment is not forthcoming, measures can be taken to force payment, such as garnishing wages, issuing travel bans and intercepting tax refunds. In certain cases, where payment of child support remains outstanding, it is possible for to raise a court action.
Speak to expert family lawyers about child support in Sydney, NSW
Szabo & Associates, Solicitors is a leading firm of lawyers advising on all aspects of family law. Our team are regularly sought by our clients to provide pragmatic legal advice on child support, and have a great deal of experience in handling the administrative work in organising for child support. If you need help in understanding how child support works, or have questions about how you can organise child support, contact our team now on (02) 9281-5088.