Child Support Lawyers Melbourne

Child support is financial support paid by parents towards the day-to-day expenses of a child. It is calculated using a formula by Child Support Services Australia – Child Support.

After a relationship breakdown, child support is typically organised through Services Australia or via a private agreement between both parents. The child support payable is based on the financial circumstances of both parents, including their income and ability to contribute.

In cases where parents cannot agree, family dispute resolution or court proceedings may be necessary. Seeking legal advice from family law specialists can help ensure a fair and equitable outcome.

A Child Support assessment is an official determination made by Services Australia under the Child Support Scheme, based on the Child Support (Assessment) Act, 1989. The assessment calculates the child support payable based on factors such as both parents’ income, the number of children and the time each parent spends with the child.

The assessment provides a legally binding amount of child support, though parents can negotiate to vary this amount through agreements or legal proceedings if necessary.

A Child Support agreement is a written agreement between the parents that outlines the amount of child support payable and how it will be managed. These agreements can be formal (binding) or informal.

A formal agreement can be lodged with Services Australia, making it legally enforceable. It allows parents to manage child support arrangements directly, providing more flexibility, but it should be reviewed with professional family lawyers to ensure fairness and compliance with child support law.

Yes, parents can arrange child support privately without involving Services Australia, provided both parties agree on the amount and terms. However, it’s recommended to seek legal advice from someone with experience with family law services, most especially child support, to ensure the arrangement is fair and legally compliant. A formal agreement or binding financial agreement can be drafted to make the arrangement enforceable, helping to avoid potential disputes in the future.

Child support should cover the child’s basic living expenses, including housing, food, education, healthcare and other essential needs. It is intended to ensure that both parents contribute to the child’s upbringing according to their financial capacity. Family law specialists can assist in determining what should be included in a child support agreement and ensure the arrangement aligns with the child support legislation to provide the child with a stable environment.

Child support is payable for children who are either under 18 or if turning 18 in a year in which the child is in full-time secondary education until the last day of that secondary school year. The last day of secondary education is the later of the following:

• if the child is not required to sit an examination, the last day of classes for the school year (as determined by the school); or

• if the child is required to sit an examination, the later of the last day of the period of examination for the child’s year level and the last day of classes for the school year (as determined by the school).

Child support is payable for children who are either under 18 or if turning 18 in a year in which the child is in full-time secondary education until the last day of that secondary school year. After child support stops a court order for child maintenance can be made which takes into account the proper needs of the child and the ability of each party and the child to contribute to those needs. Child maintenance may be sought by or for children who are:

• over 18 who are still studying;

• over 18 who have a disability or medical condition which restricts them from becoming fully independent.

Child support income is the total of taxable income and supplementary income for the year of the last lodged tax return minus the deductions for self-support, any relevant dependent child amount, and/or a multi-case allowance amount. Taxable income is income before payment of tax and the Medicare levy.

The definition of “income” includes salary-sacrificed superannuation contributions and net losses from financial investments.

Supplementary income is the total of any exempt foreign income, net rental property losses and reportable fringe benefits. Some tax-free pensions or benefits are included, such as disability support pensions, wife pensions, carer payments, invalidity service pensions, partner service pensions, income support supplements and Defence Force Income support allowance.

Some of each parent’s income is excluded from the calculation and set aside as an allowance for basic living expenses. This is called the self-support amount. For child support periods starting on or after 1 January 2021, the self-support amount is $26,319. This figure is increased for relevant dependent children.

If Child Support cannot easily discover a parent’s current taxable income, it can nominate a “default income”. For periods commencing on or after 1 January 2021, it is the greater of:

• taxable income for an earlier year adjusted by an indexing factor; and

• $52,638 which is 2/3 of annualised male total average weekly earnings.

An assessment based on default income can be amended later if Child Support receives better information.

The child support cost percentage depends on the amount of care undertaken by the payer for whom child support is paid. 

An agreement about child support is usually set out in a child support agreement. Making court orders by consent about child support is legally complicated. It is usually easier to enter into a binding or limited child support agreement. 

Binding child support agreements must meet similar requirements to financial agreements, although the legal advice requirements are slightly different. Limited child support agreements are simpler than binding child support agreements to make, easier to set aside and can only last for a maximum of 3 years. 

The main requirements for a limited child support agreement are:

• the child is eligible for a child support assessment;

• there is a child support assessment;

• it does not provide for the discharge of arrears and

• it is in writing and signed by both parents.

Binding child support agreements are more formal and “final” than limited child support agreements. The requirements and grounds for setting aside are the same as for financial agreements.

The main difference is that any changes that have arisen since the child support agreement was made must be “exceptional”, which is a much higher test than for financial agreements (which require a “material” change in circumstances) or limited child support agreements (which require a “significant” change in circumstances). 

Binding Child Support Agreements can be administratively terminated if there has been a sufficient change in the children’s care arrangements.

The enforcement of child maintenance and child support when a child lives in one country, and the payer of child support lives in another country is becoming easier. Australia has arrangements with many countries to simplify the assessment and collection of child support and child maintenance.

International treaties and other arrangements aim to ensure that liabilities to pay child support are issued and administered by the country in which the carer resides. They are enforced by the country in which the payer resides. It is more difficult for parties to “forum shop” seeking to assess child support in the country that gives the best outcome. It is also less likely that a carer will have to travel overseas to defend a payer’s application to reduce child support.

A carer who lives in Australia can apply for a child support assessment if the payer is a resident of Australia or a reciprocating jurisdiction when the application is made. A carer who lives in a reciprocating jurisdiction can apply for a child support assessment in Australia even if the child is not a resident of Australia. The payer must be a resident of Australia. 

Over 80 reciprocating jurisdictions exist, including Italy, the United Kingdom, Malaysia, South Africa, and Hong Kong. However, if the payer lives in Israel, Papua New Guinea, or the Yukon Territory of Canada, the carer must obtain a court order for child maintenance in Australia.

Child Support can register certain overseas child maintenance liabilities and spousal maintenance liabilities for collection in Australia. Child Support collects amounts payable under the liability, and the overseas authority administers the assessment.

A carer can apply to Child Support to register overseas maintenance liabilities that are not for periodic amounts, e.g. lump sum spousal maintenance or medical expenses. Non-periodic liabilities remain a debt due to the carer, not the Commonwealth.

A parent who is eligible to apply for a child support assessment in Australia or a maintenance assessment in a reciprocating jurisdiction can effectively vary an overseas court-ordered maintenance liability by applying for an assessment. The overseas court order ceases to have effect in Australia if Child Support registers a child support assessment or an overseas maintenance assessment. The overseas court order is no longer enforceable in Australia, except for any arrears. The order remains enforceable in the original jurisdiction. The payer can apply to that court to have the original order discharged.

Australia and New Zealand have a special agreement that allows the New Zealand Inland Revenue Child Support and Child Support in Australia to collect child support liabilities assessed by each other.

The United States of America and Australia have an agreement that liability is assessed in the country where the carer lives. Each country must help the other by locating payers, serving notices, providing advice, and sharing information.