In the kind of era we are living in, life is fast-paced and this momentum brings with it the requirement to be financially and emotionally independent. Marriages and de-facto relationships are just about hanging by in most cases, only to be broken multiple times. Though this is not the case with every couple, there is more acceptance of broken relationships, both in society and among couples in general.
Despite all the acceptance and general nonchalance, the couple that decides to split does undergo heartbreaks and emotional crises. Added to this are the additional hassles of legal proceedings and financial settlements. Separation becomes the most difficult when children are involved. Right from child custody to child support, every aspect of the child’s present and future seems uncertain till a decision is made in the separation case.
Decisions as to who is going to raise the children after the divorce or separation and who is going to pay for their education, sustenance and all other financial requirements till they reach a certain age will all be laid on the table but until then, it will be a struggle for the concerned parties and more so for the children. To make it a tad easier, we are about to discuss how to get child support but before that, we need to understand what child support is and who all are eligible to apply for it.
Payments made to cover the expenses of the children when a couple divorces or separates is called child support. When a couple decides to divorce or separate, their children’s welfare is the one most important aspect to be considered and decided upon. Factors like who is going to keep the children and how the expenses of raising them are going to be shared need to be deliberated upon in the presence of the concerned children’s parents and their legal representatives. Child support, is, therefore, a critical aspect of any divorce or separation. The payments may be made by one of the parents or both in case the children are left with a non-parent carer – that is any person who is not the parent of the child but is raising them, like a grandparent or a legal guardian.
You may choose to get child support assessed and calculated or you may choose to self-manage your child support. The difference is when you choose the child support assessment option, the amount you need to pay towards child support will be calculated and informed to you. On the other hand, when you choose the self-managed option, you and your partner can come to an agreement on how much each of you will pay, when and how. Thereafter, a formal child support agreement needs to be drafted that covers all aspects of the agreement, right from the amount that needs to be paid in cash, the kind of non-cash benefits like health insurance and school fees, etc. and a combination of cash and non-cash items.
Child support agreements are of two types – Limited Child Support Agreements and Binding Child Support Agreements. There are also options available for payment of the child support – the self-management option, the private collect option and the child support collect option. Furthermore, you can avail of the family tax benefits when you pay child support, which differs between the child support assessment and the self-managed child support.
The carer for the children of divorced or separated parents can either be one of the parents or a non-parent carer. There are certain criteria stipulated to determine the legal parent or non-parent carer of the children in question.
You would be a legal parent of a child if you meet at least one of the following criteria:
You and the other parent were married to each other when the child was born.
You are named as a parent on the birth certificate of the child.
You are named as a parent in the adoption papers of the child.
You (if you are a male) lived with the mother of the child for anywhere between 20 to 44 weeks before the child’s birth.
You have a relevant court document that identifies you as a parent of the child.
You are a parent under the Family Law Act 1975 which includes artificial conception and surrogacy.
You can also be considered a parent of the child if there is a statutory declaration made by you, the other parent or the non-parent carer of the child.
If you are identified as a legal parent of the child and are raising the child after separation or divorce, you are eligible to apply for child support.
A non-parent carer is anyone who has cared for the child for at least 128 nights a year and is neither a parent nor a partner or spouse of either parent of the child. You can be a legal non-parent carer of the child only if both parents agree on leaving the child under your care. As a non-parent carer, you can apply for a child support agreement or make a self-managed child support agreement. The people you seek child support from should be the child’s legal parents and should be living in Australia or in a reciprocating jurisdiction.
Child support is due to every child that lives in Australia and whose parents are divorced or separated. It is irrespective of whether the parents were married or not when the child was born. Though both parents are required to be living in Australia, there are provisions to receive child support from ex-pats as well. The children are eligible to receive child support till the age of 18 but if the child is in the final year of school at 18, then the child is eligible for child support till they complete the school year.
While the child is the actual beneficiary, the carer of the child needs to apply for child support with the Department of Human Services (DOHS). In most cases, the parent who retains the custody of the child applies for child support to be paid by the other parent who is not the primary carer of the child after the divorce or separation. In case the child is under the care of a non-parent carer, the legal non-parent carer can apply for child support and both parents are liable to pay the same. In case of any dispute regarding the parentage of the child, the court can intervene and order a paternity testing process to confirm the parentage and ensure that the child support is being paid and received by the rightful parties.
Before applying for child support, you need to ensure that you are eligible. After confirming the same, you can get the online child support application forms and get on with the process. If you are a non-parent carer, you need to go for the Application for Child Support Assessment – Non-Carer. In case you live outside Australia, you need to submit the International Application for Australian Child Support Assessment form.
After filling in the required details in the form, you need to submit it. Along with the filled application form, you need to submit other required documents which may vary on a case-to-case basis. The required documents may also include a Child Support Statutory Declaration. The form and related documents need to be submitted online through your Child Support online account. In case you are unable to apply through the online account, you may also call the Child Support Enquiry Line and get complete information about any alternatives. If one of the parents lives abroad, you may have to apply for child support through the concerned authority of that particular country.
Once a decision has been made, the DOHS will send a reply to both parents and if an assessment was required, then the response will include details such as the amount of payment and the time when the payments will start. If you decide to withdraw your application, it has to be done before the application gets approved or rejected.
The amount of child support is calculated using a specific formula. The calculation includes the taxable incomes of both parents. The age of the children and the level of care provided by each parent are also important criteria in the calculation of the child support amount.
As the first step, each parent’s child support income is determined after which the combined income of both parents is calculated. Thereafter, the income percentage of each parent is determined as is the level of care percentage. After arriving at a certain figure for both parents, each parent’s cost percentage is calculated. Subsequent to that, each parent’s child support percentage is determined. Finally, the costs involved in raising each child are determined and the child support amount is calculated.
The care percentage is a factor that is directly related to the amount of time you spend with the child. On the other hand, the cost percentage is the amount you pay towards your child’s sustenance either directly or through care.
Since child support is calculated using a set formula and considering several factors, there are chances that the resulting amount may not be fair to either of the parties. The reason could be a change in the circumstances after the administrative assessment has been made. For example, either parent might have lost their job or their earning capacity might have changed, the child may have special needs, the child may be in a private school, the cost of maintaining a child may be affecting the ability of the parent to spend time with the child, the parent may have other necessary expenses, the parent may have another child from another partner, etc.
In case there is any change in circumstance of the paying parent, they may apply for changing the assessment. To apply, you would have to fill in the Application to Change Your Assessment – Special Circumstances form. Your reason to apply for a change must fall within the listed possible reasons. This application, once submitted, will be sent to the other parent or the non-parent carer. In some cases, even the Registrar can initiate a change in the assessment if they get evidence that the parent’s income and financial resources have not been represented accurately in calculating child support.
Yes, it is possible for parents to enter into child support agreements and decide on the amount to be paid towards child support. However, there are certain requirements that the agreement has to fulfil in order to be recognised by the Child Support Legislation. A child support agreement should be made for the child who is eligible for an administrative assessment. It is essential that both the parents of the child should be involved in this agreement and in the case of a non-parent carer, they should also be part of this agreement. Child support agreements are of two types – Binding Child Support Agreements and Limited Child Support Agreements.
Binding Child Support Agreements operate the same way as Binding Financial Agreements that separating couples enter into. Before entering into such agreements, both parties must have been independently advised by a legal expert. The agreement should be in writing and should include a statement confirming that both parties have received ample legal advice.
Limited Child Support Agreements do not require any prior legal advice to either party. However, these agreements require a child support administrative assessment in place and the payable amount should cover at least the annual rate of child support as per the assessment.
There are three ways to pay and receive child support – Self Management, Private Collect and Child Support Collect.
In this arrangement, the parties involved, that is both the parents and non-parent carer if any, agree on the amount to be paid and the time when or the period for which the payments have to be made. The parents handle the payments by themselves and child support services are not involved at all. The payments can also be flexible if the parties involved are in agreement. However, in self-management, you cannot claim any overdue amount from the paying parent and you may only be eligible for a base rate of the Family Tax Benefits. If at any time, you feel that the self-management option is not effective, you may apply for an administrative assessment of child support.
In a private collect option, the parents are required to have a child support assessment in place and the amount to be paid is set through an agreement or the court. However, you and the other parent can decide when and how the payments will be made. You may also agree on getting non-cash payments or payments to parties other than the receiving parent or non-parent carer like paying the school fees, mortgage or rent, etc. The responsibility to plan, manage and keep a record of all the payments made/received lies entirely on the parties involved. Child Support Collect can collect payments for you in case there is any defaulting in making the payments and all overdue can be collected too.
When you choose to collect the payments through Child Support Collect, an administrative assessment, an agreement or the court sets the child support amount. You are told when and how to make the payment. There is no direct dealing between the two parents or the parents and the non-parent carer. The Child Support Collect can collect the payments from the paying parent and send them to you and keep proper records of them too. You are also assisted in calculating your Family Tax Benefits and any non-payments or overdue can also be recovered.
If you do not agree with the decision made by the DOHS with regard to your child support payment, you may file an objection with the Administrative Appeals Tribunal (AAT) and apply for the child support decision to be reviewed. This can be done by either parent and request an independent review of the decision made by the DOHS. If you are not happy with the decision made by the AAT, you may apply for a second review on decisions like care percentage, etc.
In case of disputes related to the parentage of a child, the court may order for a parentage testing process to be carried out. This will provide evidence of the actual parentage of the child and ensure that the child support is being paid and received by the right parties. If it is discovered that a non-parent has been wrongfully made to pay for child support, the amount paid thus far can be recovered from the party that had received those payments.
At Maatouks, you get end-to-end assistance in family law matters. From giving you the right kind of legal advice for binding child support agreements to ensure that the child supports you receive or pay is just and fair, we can help you with it all.
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