Child Support is generally determined under the Child Support (Assessment) Act through the Department of Human Services (Child Support) ("the DHS") rather than the Family Court.
In order to determine the amount of child support payable by a parent, an application needs to be made to the DHS for an assessment of child support. The DHS has access to the Australian Taxation Office and determines the amount of child support payable on the basis of the parties’ taxable incomes, plus adjustments which are then made by the DHS pursuant to the Child Support Formula. You can access the DHS website on www.humanservices.gov.au to use their calculator to obtain an estimate of your child support entitlements.
Once assessed, parents can:-
- enter into a private arrangement for the payment of child support; or
- application can be made for the DHS to collect the child support directly from the paying parent’s salary.
What if I don't agree with the Child Support Assessment?
If either party does not agree with the Child Support Assessment, an application can be made to the DHS for a change of the assessment. There are various grounds upon which an assessment can be reviewed, the most common of which are:-
- It costs extra to care for, educate or train the children in the manner in which the parents intended (e.g. the parties had agreed to send the children to private schools);
- The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both of the parents (e.g., the income of one parent is significantly greater than the maximum income taken into account under the formula).
Following an application to change the assessment, the DHS can then alter the child support assessment by increasing or decreasing the amount payable or not changing the assessment at all.
What if I don't agree with the Change of Assessment?
If either party does not agree with the DHS’s determination, an Application can be made to the Family Court seeking a departure from the assessment but only if there are proceedings in the Family Court in relation to other matters (e.g. property or parenting). If there are no proceedings before the Family Court, then the only recourse is to the Social Security Appeals Tribunal which will effectively review the DHS decision but using the same principles as the DHS.
What does a Court consider?
If a Court has to determine the amount of child support payable, the Court will also apply the principles under the Child Support (Assessment) Act but is more likely to give greater consideration to:-
- the costs of the children;
- the needs of the children;
- the capacity for the paying parent to pay child support.
What is we both just agree to child support arrangements?
If both parents agree on the amount and method of child support to be paid, they can simply enter into a Child Support Agreement which is registered with the DHS.
There are two types of Agreements:-
- Binding Child Support Agreement, where legal advice is required and a lawyer needs to sign a Certificate of Independent Legal Advice; or
- Limited Child Support Agreement where no legal advice is required.
Depending on the type of Agreement the parents sign, it may only be changed if the parents enter into a new Child Support Agreement by consent, or by Order of the Court.