Child support

CHILD SUPPORT is an ONGOING (periodic or non-periodic) payment made by one parent to the other parent for the financial benefit of a child after a relationship has ended.

 

It is to assist one parent with the day-to-day expenses of raising a child. It does not specifically cover medical, education or extracurricular activities, but more so costs such as food and clothing. The amount of child support does not normally reflect the true cost of raising a child, but is more a subsidy of those costs.

 

Periodic payments

Periodic payments are monetary payments (i.e. cash) that are paid by one parent to another parent on a weekly, monthly, annually, or at any other time period basis. A periodic amount is for e.g. a payment by one parent, to the other parent, of $100 per child per week.

Non-periodic payments 

Non-periodic payments are payments made in one lump sum. If you agree to non-periodic payments, you are essentially agreeing on a total amount for a year. For example, you may agree to pay $20,000 towards your child`s school fees. These payments have more flexibility, as they may not be due on specific dates throughout the year. They may also include payments for health insurance, extra-curricular activities, and school fees. This is sometimes a more preferable option as some parents would rather the child support be paid directly for expenses instead of to the other parent. These payments (i.e. private school fees) however will only be attributed to 30% of your child support assessment.

 

Your rights and responsibilities 

If you have separated from your partner, then you will need to discuss your rights and responsibilities in relation to child support with your ex-partner.

Same-sex parents are treated the same way by the Child Support Agency as de-facto couples and married couples. The length of your relationship is irrelevant. It also does not matter if you are on the child’s birth certificate. If you are the legal parent of a child, then you may have to pay child support to your ex-partner, or you may be the parent who receives child support.

Stepparents do not generally have child support obligations except in some limited cases.

 

Child Support Agency 

The Child Support Agency calculates child support using a formula that is based on you and your ex-partner’s taxable income and how many nights (not day time) per week, fortnight, or year your child spends with each of you.  This is called a “child support assessment”.

Child support is usually paid by the parent earning the higher income, with the lesser percentage of care. However, the system is not perfect and is complex. You and your ex-partner may have equal shared care of your child, but because you earn more, you may be liable to pay your ex child support.

If you end up in a situation such as this, you can seek to have the child support assessment reviewed. You should consult a lawyer to discuss your options.

 

Child support assessment 

A child support assessment is done when one parent contacts the Child Support Agency requesting child support. This usually occurs after separation when one parent applies for a single parent pension or family tax benefit, or files a court application. This is because you won’t generally receive a full pension or family tax benefit until there is a child support assessment in place. You will need to contact the Child Support Agency as soon as possible after you separate as this may affect the other Centrelink/family tax benefits you receive.

You and your ex-partner can also agree on the amount of child support. This agreement can be documented in what’s called a “Binding Child Support Agreement”. It means you both agree on how much child support is to be paid or received and what this may include, i.e. a weekly payment and private health insurance or school fees. This agreement may override the assessment by the Child Support Agency. 

Be aware that there have been situations where single and coupled lesbian parents have been advised by the Child Support Agency that they need to try to obtain child support from their donor. Obviously if you have used an unknown donor – that is impossible!  However, you may still need to go through the motions and obtain a letter from your fertility clinic to confirm you used an unknown donor, or you may need to execute a statutory declaration to confirm you are unable to contact your donor. 

 

Binding Child Support Agreement 

A binding Child Support Agreement will need to be drafted and signed by a lawyer who has explained the agreement to you. Your ex-partner will also need to obtain independent legal advice. These agreements are very difficult to set aside if your circumstances change, hence legal advice is needed before such agreements are effected.

Child support payments may be made direct to your ex-partner or taken directly from your salary by the Child Support Agency. If you are paying directly to the other parent, be sure to keep a record of what you have paid, and don’t pay in cash. If you pay with cash and there is ever any dispute, then you will be able to prove to the Agency what you have paid and on what dates.

If your ex-partner does not pay the assessed amount, then you can also file an application with the Family Court seeking orders for your ex-partner to pay child support, however the Family Law Rules around these applications are prescriptive and legal advice should be sought if such an application is contemplated.

For more detailed information on child support, you can go to the Child Support Agency’s website at:

 

https://www.humanservices.gov.au/customer/services/child-support/child-support-assessment

 

Summary of Main Points:

 

  1. Child support can be paid as periodic payments, regularly paid from one parent to the other, or non-periodic payments, which may be paid in one lump sum.

  2. Lesbian parents are treated the same way by the Child Support Agency as de facto couples and married heterosexual couples.

  3. The Child Support Agency uses a formula which includes the time spent with each parent and each parent’s taxable income to calculate the amount of child support owed and who owes whom.

  4. If the two parents agree outside of court, they can enter into a binding Child Support Agreement, which must be signed by both lawyers to be legally binding.

 

Note to readers: This information is intended as a guide to the law and is not legal advice. This information should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.

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© 2019 by Lesbians & The Law