Tag: child support applications

As you and your spouse separate and divorce, child support will be one of the issues you will need to address. The primary purpose of child support is to guarantee that children’s day-to-day needs will be met through regular periodic support payments. Additionally, child support allows children to enjoy the same or similar standard of living as their parents. Child support lawyers can be arranged by agreement between the parents, or through an administrative assessment conducted by the Child Support Agency (CSA).

Child Support Agreements

Often the best way to arrange for child support is through an agreement between the parents in the form of a child support agreement. This method allows parties to deviate from the formula used in the administrative assessment used by the CSA to determine support. There are two types of agreements that may address child support: a binding child support agreement and a limited child support applications agreement.
Child support agreements are considered binding if both parties to the agreement were given independent legal advice (from separate counsel), and the agreement must state that this is in fact the case. Additionally, the counselor who administered the legal advice must also execute and sign a certificate, which is included in the agreement. A binding child support agreement can be for any amount – including an amount less than prescribed under the CSA formula.
Unlike a binding child support agreement, a limited child support agreement does not require that the parties obtain independent legal counsel. The only requirements for this type of arrangement are that the agreement is in writing, signed by both parties and that the amount agreed to is at least equal to the amount payable under the child support agency formula.
It is not possible to modify or alter a child support agreement; rather you must terminate the agreement and enter into a new one. The Child Support Assessment Act provides for several ways to terminate a child support agreement:

• by entering into a fresh agreement
• by agreement in writing
• a court order
• a new national assessment, and
• simply if the agreement is three or more years old.

Child Support Agency and Administrative Assessments

Should you and your former spouse be unable to reach an agreement and execute either a binding or limited child support agreement, you may arrange for child support through the CSA. In order to obtain this, you must first make a child support application for an administrative assessment. The assessment will be made using the appropriate formula and can be subject to private enforcement or registered for collection through the CSA.
Administrative assessments are calculated by using a formula that requires parents to share in the support of their children and is based upon the level of care provided as well as their respective incomes. The various applicable formulas take into consideration a child support income amount, adjusted taxable income, self-support amount, and relevant dependent child allowance, among other figures. There are six formulas available, although the most common is “formula 1.”

The steps to determine formula 1 are as follows:

• Calculate each parent’s daily child support income for the child
• Calculate the parents’ daily combined child support income for the child
• Calculate each parent’s daily income percentage for the child
• Calculate each parent’s daily percentage of care for the child
• Calculate each parent’s daily cost percentage for the child
• Calculate each parent’s daily child support percentage for the child
• Calculate the daily cost of the child
• If a parent has a positive child support percentage under step 6, the annual rate of daily child support payable by the parent for the child is calculated by using this formula:

Parent’s daily child support percentage for the day

X (multiplied by)
Costs of the child for the day
Formulas 2, 3, 4, 5, and 6 are less common. They are variations provided to consider non-parent careers, non-resident parents, multiple cases, and special circumstances or deceased parents.
Should any of the elements used in the formula change, the CSA should be notified so that the child support amount may be recalculated.
It is possible to be awarded an amount that is inconsistent with the administrative assessment of child support. If you are seeking a departure from the assessment you simply need to fill out a form and submit it to the CSA who will then schedule a conference to hear the parties. A written decision is ultimately provided to both parties. In determining whether a departure is proper, grounds for such must be established, it must be just and equitable, and it must be deemed otherwise proper, and there must be a special circumstance. The Child Support (Assessment) Act 1989 has enumerated ten types of special circumstances:

• Costs of caring for a child. It costs you more than 5% of your child support income amount to spend time with the children.
• Special needs of a child. It costs you extra to cover the children’s special needs.
• Manner expected by the parents. It costs you extra to care for, educate or train the children in the way that you and the other parent intended.
• Income and earning capacity of the child. The child support assessment does not take into account the income, earning capacity, property or financial resources of the children.
• Money, goods, or property from the payer for the benefit of the children. The children, the payee or someone else has received or will receive money, goods, or property from the payer for the benefit o the children.
• High costs of child care. You are the payee, you have sole care of the children, and it costs you more than 5% of your child support income amount for the child care for children younger than 12 years of age at the start of the child support period.
• Necessary expenses in self-support. You have necessary expenses in supporting yourself that affect your ability to support the children.
• Income, earning capacity, property or financial resources of one or both parents. The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both parents.
• Legal duty to maintain another person or other children. You have a legal duty to maintain another person or other children not included in the child support assessment, and it costs you: more than 5% of your child support income to have contact with that person or those children, extra to cover the special needs of that person or those children, extra to cover the necessary expenses of that person or those children.
•  Additional income. You have earned additional income for the benefit of resident children.

A child support assessment ends upon child support terminating event. Such an event can occur when the child turns 18, when the child is adopted, or when the child, career or liable parent dies among other events.

Alternative Payment Methods

While it is most common to receive child support in periodic payments, it is also permissible to receive it in a lump sum payment. The most common situations where lump sum orders are considered are where there are difficulties in the enforcement or where the liable parent is asset rich and income poor, although there are many other situations in which a lump sum could be awarded.
Another payment method that has been gaining in popularity is a combination of the periodic payment and lump sum concepts. This results when the liable parent deposits the sum to be held in trust and distributed as child support liabilities accrue.
Finally, a party does have a right to make objections regarding decisions made by the CSA. The objecting party must lodge the objection 28 days from the service of the decision, and a decision regarding the objection will be made within 60 days. Additionally, there is a formal process available to allow parties to appeal an objection decision. 

How much child support will I owe? Transcript

Hi. I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists and I’m going to talk with you today about child support in Australia. While I can give you the basics about child support in Australia, I would stress that you contact a lawyer and get professional legal advice. Every family and every case is different.

Child support is the amount of money the non-custodial parent, meaning the parent the children don’t live with, must pay to the other parent in order to help support the children financially.

You and your partner may come up with your own child support agreement. If you do this, there are a few important pieces of information that your agreement should include. The agreement should say how much money one parent will pay to the other. The agreement should explain what the money is for, for example, generally, monthly payments are for food, clothing and housing.

But what about special expenses like private school fees or orthodontics? A good agreement should include who pays for those unexpected expenses or since you can’t always know what these will be, how you’ll decide who pays. You can agree that when an unexpected expense arises, you’ll go to a mediator, or a third party who knows you both well and let them decide how the new expense will be paid.

You should also include in the agreement how the monthly payments will be paid. Do you want to make a bank transfer? Cash or a check? And it’s also important to state when the payments will be made. At the end of each month, at the beginning of the next month. If you work out this arrangement ahead of time, you can avoid a lot of headaches and fights.

When deciding what needs to be paid for, you should also think about putting money away for your children for the future. This is especially important because once your child turns 18, the law doesn’t require you to support them anymore. Some parents continue to help out their adult children. While you may want to help them, your ex-partner may not want to and he or she does not have to do so. One way of ensuring that they’re not left out in the cold at that point is to include savings for them in the child support agreement.

I would add that there are different types of agreements you can make, so be sure to read the section on child support on our website at MathewsFamilyLaw.com.au.

Sometimes parents can’t come to an agreement on their own. In this case, the child support Melbourne agency will decide how much you need to pay. This is called the Child Support’s fee and it’s a mathematical equation that determines how much a parent must pay. The calculation is based on how much you earn, how many children you have, how much time you spend with them, whether or not you have children from another relationship, and how much you the parent need for yourself.

So, while a parent in one family may need to pay $500 a month for 2 children, another parent in another family may need to pay $1500 a month for 2 children. The Child Support agency’s responsible for assessing the amount a parent has to pay, collecting it, and distributing it to the other parent.

People often ask me what happens if a parent doesn’t pay. The law has a few ways of dealing with these parents. One is to garnish their wages. This means the money they owe for child support is taken directly out of the parent’s salary. Money can also be collected straight from the parent’s bank account. A parent may also be prohibited from traveling overseas for not paying child support and in extreme cases, go to jail.

Child support can be complicated and very emotional. It’s best to seek out professional legal help to work through various issues and come up with a plan that is fair to everyone, especially the children. Please look at our child support calculator on our website. I’m Vanessa, Mathews from Mathews Family Law & Mediation Specialists.

Yamada & Cain – [2013] FamCAFC 64

This is a case involving the “best interests of the child”.  The mother appealed orders placing the child in the care of the paternal great aunt.

The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010.  The parents did not return the child after this visit, although it was supposed to last only four weeks.  Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana.  They lived a transient lifestyle, moving around a good deal, and switching schools for their other children.  The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him.  The aunt lived in Melbourne.

After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt.   In January 2011, the aunt brought Z to the airport to return her to her mother.  There she observed the mother being arrested by Australian Federal Police.  The aunt did not transfer Z and Z continued to live with her.   A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact.   The mother appealed.

Is Parenthood an Overriding Factor?

The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent.   The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order.  The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.”   The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at [121] that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child.  The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.

The Family Court disagreed, also basing its position on Donnell.  There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent.  Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”  Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”

Ultimately, the Family Court held that the law “recognizes that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”  The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest.  The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.

The mother’s appeal was rejected.

Lorreck & Watts – [2012] FMCAfam 977

This appeal was brought before the Family Court in Canberra and raised the question of which parent has to pay for the travel costs for children’s visits to the other parent.

Ms. Lorreck, the mother, and Mr. Watts, the father, had two children. In June 2012, the court gave orders allowing the mother and the two children to relocate to Cairns from Canberra. The father remained in Canberra.  The order also included seven trips from Cairns to Canberra in a two-year period. The decision regarding the costs of travel to and from Canberra was remitted to the Federal Magistrates court.

Both the mother and the father submitted their travel expense requests to the Federal Magistrate. The mother asked that she be required to pay for only one trip per year for the children to visit their father until she could earn $1,300 per week, at which time she would pay for every second trip.  The father asked that the mother pays for every two out of three trips.

The Federal Magistrate ruled that the parents should share the burden of travel expenses equally. He noted both the mother’s proposal to pay for every second set of airfares and also noted that she had earlier offered to pay half of all of the flights. The Federal Magistrate recognized that the mother would need time to readjust to her new circumstances before imposing a financial burden on her, but concluded that this did not give her permission to forego her responsibility for the children.

The mother appealed the decision arguing that the Federal Magistrate did not provide adequate reasons for his decision, did not rely on the financial evidence she submitted to the court and disregarded the best interests of the children. The mother’s income was based solely on child support and social security and after deducting her expenses she was left with $26 per week of disposable income or $1,352 per year. The Family Court agreed that the Federal Magistrate did not explain why he rejected the mother’s proposal. While the Family Court assumed that the Federal Magistrate did this on the basis of the mother’s original offer to pay for half of the travel costs, the Federal Magistrate did not explain his reasons for giving the order on travel expenses. Therefore, the Family Court found that the appeal should be allowed “on the basis of the challenge to the adequacy of his reasons.”

The Family Court, however, rejected the mother’s claim that the Federal Magistrate’s decision did not take the children’s best interests into consideration. The mother referred to section 60CC of the Family Law Act, 1975, a list of factors a court uses to determine what the best interests of the children are when granting parenting orders. While the mother specifically referred to section 60CC(3)(e) of the Act, which allows the court to consider the practical difficulty and expense of a child spending time with the other parent, she did not raise this issue in the context of her financial burden. The Family Court did not view it as a valid claim on appeal.

Mother to Pay Three of the Seven Trips

The Family Court ruled that the mother must pay for three out of seven trips over a two-year period. This was the mother’s alternative suggestion if the court chose not to accept her proposal that she begin paying only once she started to earn $1,300 a week.

The Family Court gave several reasons for this decision. The judge held that the question of best interests as laid out in section 60CC of the Act does not apply to issues of travel costs. Instead, the court found that it was the mother’s decision to move the children in the first place and therefore “must bear a significant responsibility or obligation to ensure that they are able to spend time with their father”. In addition, while the father’s income was higher, he was not in a position to pay most of the travel expenses, particularly since he was already paying child support. The court also found that just as the financial burden on the mother could impact negatively on the children, the mother’s failure to contribute to the travel costs might increase the father’s anger and bitterness and therefore impact negatively on the children as well. Finally, the court argued that waiting until the mother reached a certain income level was unrealistic because she might never reach that level and because “income levels can be contrived”.  Instead, the court made the mother responsible for three out of seven trips, beginning from a specific date, January 1, 2014.

Children who are exposed to family violence are particularly vulnerable. Family violence can have a serious impact on a child’s physical, psychological and emotional well-being.

If you are applying for an intervention order, you will be asked if you believe that your safety or the safety of your children is threatened by the respondent (the person the application is against). If you fear for your children’s safety, you can include them in your application.

You can also ask the magistrate to change (vary) or suspend a parenting order. You can ask the magistrate to stop the children:

• living with the respondent,
• spending time with the respondent or
• communicating with the respondent.

If a child is not part of an affected family member’s (the person who needs protecting) application:

• a parent or guardian can apply for an intervention order if the child is under 18 or
• the child can apply for an intervention order if they are 14 or older and the court agrees.

In these cases, the matter is usually heard in the Children’s Court.

A magistrate must consider if there are any children who have seen or heard the family violence. Therefore, the magistrate will ask the affected family member or respondent if they have any children and how the family violence has affected them.

A magistrate can decide to include a child on the final order, even if the applicant did not name them in the application. The child’s safety is the most important consideration.

If the magistrate decides that the child support applications need to be protected, the intervention order may say that the respondent can have no contact with the child.

The CSA requires proof that a paying parent is a biological or adoptive parent of a child. Proof could be the parent’s name on the child’s birth certificate. The CSA will only issue a child support assessment to a person if proof can be provided that the paying parent is a biological or adoptive parent of the child.

If you cannot provide acceptable proof, you may need to take court action and have DNA testing done. Seek legal advice if you need proof of parentage.