Family Lawyers Australia

Child Support and Adult Child Maintenance

Under the Child Support (Assessment) Act 1989 every parent has a primary duty to maintain their children. Child support is assessed and collected by the Child Support Agency (CSA) which is part of the Australian Government Department of Human Services.

Usually the parent with whom the child lives applies to the Child Support Agency for an assessment of the amount of child support payable by the other parent. The CSA makes an assessment of child support by applying a formula to both parents' gross annual income, considering primarily the age of the child and the costs of caring for the child; the amount of time the child spends with each parent and whether the payer has an obligation to maintain a child from another relationship.

The child support website is at www.csa.gov.au. On the website parents can use the estimator to see the amount of child support they ought to pay or receive. The website also provides a calculator for parents to estimate any Family Assistance Office payments they might receive.

Departing from Child Support assessments

It is possible for either party to apply to "depart from the child support assessment in special circumstances". For example, the parent liable to pay child support may encounter substantial or unusual expense in spending time with the child because they live a considerable distance away from the other parent. In such a case, modification to the child support assessment based on the usual formula can be made to take these costs into account. Another example is where the parent liable to pay child support has the ability to arrange their affairs so that their income remains below the minimum self support threshold but they have substantial assets or access to funds which they are not obliged under taxation law to declare as income. Here the child support assessment based on the usual formula can be departed from to ensure that the financial burden of supporting the child is more equitably shared between both parents.

Once an assessment has been made, payments are made to the CSA and then forwarded to the other parent on a monthly basis. Inevitably there is some delay between the time of the application being made and the date of the first payment.

Except in limited circumstances, parents are not obliged to use the CSA and are perfectly entitled to reach their own arrangements regarding child support.

Child Support Agreements

If the parents agree, a Child Support Agreement can be entered into on a private basis between the parties. This agreement can be registered with the CSA or the parties can elect to comply with the agreement privately. Once registered, the CSA can be utilised to collect money due under the Agreement. If there is an existing child support assessment by CSA, a later Child Support Agreement will replace that assessment.

The level of child support payable is reviewed at the end of each financial year. People entering into a Child Support Agreement often include provision for regular review of the Agreement, although that is not compulsory.

As and from 1 July 2008, there are two types of child support agreements:

1. Limited Child Support Agreements; and
2. Binding Child Support Agreements.

Limited Child Support Agreements operate only for 3 years. A Limited Child Support Agreement requires a child support assessment to have been issued. After the expiration of three years, the parties can renegotiate another agreement if they wish.

A Binding Child Support Agreement is an opting out of the Child Support Act and can only be altered by another agreement, terminating the agreement, or by being set aside by the Court in circumstances where there has been an event such as fraud, duress or lack of disclosure. Binding Child Support Agreements can only be entered into where both parents are legally represented and their respective lawyers sign a certificate certifying, amongst other things, that they had given advice to their client on the advantages or disadvantages of entering into the Agreement.

Adult Child Maintenance

A parent or child may make an application to the Court for adult child maintenance in specific circumstances where they can show that despite the child being over 19, maintenance is required to enable the child to complete their education, or because of a mental or physical disability.