Matters of child support are handled by the Child Support Agency in the first instance. They provide a free service.
The amount of child support required to pay for children is assessed and, if necessary, collected by the Department of Human Services (formerly known as the Child Support Agency) on application by either parent. The Department of Human Services calculates the amount to be paid by using a formula which takes into account, amongst other things, your respective incomes and the percentage of nights that the children are in your care.
If either parent is not satisfied with the child support assessment, they may apply to have it reviewed by the DHS (the details of the various options to review or object to an assessment may be found on their website). If you are still not happy with the decision made by the Department of Human Services, you should contact the appropriate officer at the DHS who will advise you of your further options including the process of having that decision reviewed by the Administrative Appeals Tribunal.
You also have the option of entering into a Child Support Agreement. Such an agreement can set out the periodic amount of child support paid by one parent to the other as well as make provision for specific expenses for one parent or both parents to contribute, such as school fees medical expenses, health insurance, extracurricular activities, uniforms and the like.
There are two different kinds of Child Support Agreement under the Child Support (Assessment) Act 1989.
The first kind, known as a Limited Child Support Agreement, is a less formal arrangement between parents. No legal advice is required, and provided the Agreement relates to a child in relation to whom a child support assessment could be made, it is signed, dated and in writing, then the Agreement reached is a Limited Child Support Agreement which can be registered with the Child Support Agency.
Limited Child Support Agreements can be changed by the Court in the event of a change in circumstances of either party. These Limited Agreements can be ended by one parent alone writing to the Child Support Agency to say the Agreement has ended, provided 3 years have passed from the date of the Agreement to the date of the notice.
The second kind is called a Binding Child Support Agreement. They require a greater degree of formality and that each party receive independent legal advice before signing the document (and Certificates to that effect are signed by each lawyer).
A Binding Child Support Agreement is binding on the parties to the Agreement if and only if:
- the Agreement is in writing; and
- the Agreement is signed by the parties to the Agreement; and
- the Agreement contains, in relation to each, a statement to the effect that before the Agreement was signed, each party received independent legal advice as to the effect of the Agreement on their rights, and the advantages and disadvantages of the Agreement to that party at the time of the advice; and
- the Agreement includes an annexure for each of the parties to the Agreement, signed by the person who provided the legal advice, which certifies that the advice was provided (Section 80C of the CSAA); and
- the Agreement has not been terminated; and
- after the Agreement is signed, either the original Agreement or a copy of the Agreement is given to each party.
Once you have entered into such a Binding Child Support Agreement, it can only be set aside in the following circumstances:
- the Agreement was obtained by fraud or a failure to disclose material information; or
- another party to the Agreement, or someone acting for another party:
- exerted undue influence or duress in obtaining that Agreement; or
- engaged in unconscionable or other conduct;
- because of exceptional circumstances, relating to a party to the Agreement of a child in respect of whom the Agreement is made, that have arisen since the Agreement was made, the applicant or the child will suffer hardship if the Agreement is not set aside.
A Binding Child Support Agreement may be terminated only by:
- a provision being included in a new Binding Child Support Agreement made by the parties to a previous Agreement to the effect that the previous Agreement is terminated; or
- the parties to a previous Agreement making a written Agreement (called a Termination Agreement) that is binding on the parties to the effect that the Agreement is terminated. A Termination Agreement is binding if and only if it fulfils the same prerequisites required of a Binding Child Support Agreement; or
- a Court Order setting aside the previous Agreement made under the legislation.
For more information relating to your child support entitlements, contact one of our specialist family lawyers. Let us assist you in moving forward today.
Author: Gabriella Arvanitis, Senior Associate – Family Law
Service: Family Law