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Child support and child maintenance

 

What is child support?

Child support is financial support paid for a child by a parent to the other parent or carer of the child. Carers can include grandparents, other relatives, or friends, who have the child in their care.

The parent who pays is called the "payer parent". The carer who receives the support is called the "carer entitled" or the "payee parent/carer".

Both parents have a duty to provide financial support for their children, even if the parents were never in a relationship.

The Child Support Agency (CSA) administers the child support scheme. Visit the Child Support Agency website for more information.


Can parents make an informal agreement as to how and how much child support is to be paid?

Yes. You can have an informal agreement as to how much you pay and how. You do not have to register it with the CSA.

With this type of agreement, the CSA will not enforce the payments or take any part in collecting them. This type of agreement is called an "informal agreement" or "private agreement".


Can we make an agreement which has more certainty than an informal agreement?

Yes there are two sorts of child support agreements: limited child support agreements and binding child support agreements.

Limited child support agreement

A child support assessment must be made before parties may enter into a limited child support agreement. When they enter into an agreement the assessment is then known as a notional assessment. The limited agreement must provide for child support equal in amount to the notional assessment.

The payee parent's or carer's Centrelink payments will be reduced based on the amount they should receive pursuant to the child support assessment. Limited agreements must be in writing however the amount to be paid may be paid privately between the parties or the Child Support Agency may collect the money. Please refer to the Centrelink website.

Either party may change a limited child support agreement if their income alters by 15% or more. After 3 years either party to a limited child support agreement may ask the Child Support Registrar to end the agreement. Parties may agree to end the agreement earlier or in limited circumstances one party may apply to the court to end the agreement.

Binding child support agreement

Parties may chose to enter into a binding child support agreement. Agreements providing for lump sum payments must be in the form of binding child support agreements. To enter into a binding child support agreement both parties must seek independent legal advice and have a solicitor sign a certificate of advice that is attached to the agreement. Parties may elect whether the child support will be paid privately or collected by the Child Support Agency.

Binding agreements can be ended or changed only by agreement of both parties. If only one party wants a change, that party needs to apply to the Family Court for an order changing the agreement. The court will only set aside an agreement in limited circumstances, seek legal advice.

Old child support agreements entered into before 1 July 2008 may still be registered with the CSA for collection.

You should always get legal advice before signing a child support agreement.

What happens if we cannot reach an agreement about child support?

If there is no agreement between the two of you, you can apply to the CSA for an administrative assessment. The CSA will then work out the amount of child support to be paid. The amount is calculated by using a formula.

If the payer is the child's father, there must be proof that he is the father before the CSA will accept an application for child support. This is called "proving paternity". See Proving parentage.

How can we find out how much child support should be paid?

The child support formula has been worked out by parliament, not by the CSA. The current formula has been in place since 1 July 2008. It is based on:

  • The income of both parties;
  • Any children of both of them;
  • The arrangements in place for what portions of time the child lives with each of the parties; and
  • The basic living needs of the liable parent.

On the CSA website there is an Estimator which shows you how much is likely to be payable.

How will the CSA collect payments of child support?

You can make your payments directly to the CSA, or in some circumstances the CSA will ask your employer to deduct your payments directly from your wages.

What if one of us wants to change, or disagree with, an administrative assessment which has been set by the CSA?

If you want to change the assessment, you need to apply to a senior case officer at the CSA. The application is called a "change of assessment".

For further information on changing the assessment, contact the Legal Aid WA Infoline on 1300 650 579.

If you are unsuccessful with your "change of assessment" application, you have 28 days in which to lodge an objection with the CSA. The objection team will have another look at you request for a change.

If your objection application is not successful, you can then apply to the Social Security Appeals Tribunal (SSAT) for a new decision. An appeal to the Family Court of Western Australia from the SSAT is only allowed on a point of law.

In circumstances where the
Family Court is dealing with other matters it may also deal with an application relating to child support.

If you wish to change a child support assessment that relates to a period more than 18 months prior to the date of your application you must first apply to the court. This is called "seeking leave of the court".

Where can we get help with sorting out child support problems?

Child support is a difficult area of law. If you have problems working out what you should pay, or what you should be paid, you should get legal advice.

Legal Aid WA has child support specialists. Contact the Legal Aid WA Infoline on 1300 650 579 for more information. 

When can we ask the Family Court to sort out our child support matter?

The CSA deals with most child support matters. You do have to apply to the court when:

  • Parentage is not agreed - see Proving parentage;
  • There is a child support agreement which one party wishes to change, but the other party does not agree to the change;
  • Where the child turns 18, but continues to study, or has a disability or special needs;
  • Where there are "arrears" of child support (an amount of child support which is owing). The court can make an order to "enforce" the arrears (make the liable parent pay the amount owing), or to "suspend" the arrears (meaning that the arrears do not have to be paid immediately, but may become payable in the future), or to "discharge" the arrears (meaning that the amount owing is will no longer be owing in the present or the future). If your child support is in CSA collect you must advise the CSA that you intend to take enforcement action 14 days before you file your court application.

What if I have problems as a payee?

- if I don't know where the other parent is?

You can still apply to the CSA for a child support assessment. The CSA can try to find the payer parent.

- do I have to insist that the other parent pay?

If you receive a pension or benefit from Centrelink you must take reasonable action to obtain child support.

The consequences if you do not do this may include Centrelink ceasing to pay you the pension or benefit.

You have to take "reasonable steps" to obtain child support within 13 weeks of separating from the liable parent.

There are exceptions, for example, when the liable parent is violent or cannot be found.

If you think your case should be an exception, you should contact the Legal Aid WA Infoline on 1300 650 579 for more information or to speak to a child support specialist.

What if I have problems as a payer?

- what happens if I don't pay the amount I am supposed to pay by way of child support?

If you and the other party have a private or informal agreement, the CSA will not enforce the payments.

If you and the other party have an agreement that is registered with the CSA or you are paying child support according to an administrative assessment, the CSA has the power to enforce collection of child support by:

  • Taking money out of any tax refund directly from the Australian Taxation Office, before you get any of the refund due to you
  • Taking money out of a bank account which is in your sole name
  • Taking debt recovery action against you in court.

The CSA can also issue a departure prohibition order that prevents you from leaving Australia.

The payee can also enforce collection by making an application to the Family Court.

- when can I stop paying child support?

You cannot stop payment unless the agreement or assessment comes to an end.

The agreement or assessment will automatically come to an end when the child turns 18. If your child is turns 18 in the year they complete their secondary education your child support may extend to the end of the school year.

The agreement or assessment will not automatically come to an end if the child becomes self-supporting, marries, or becomes part of a couple.

- do I have to pay child support if my only income is the pension or a benefit from Centrelink?

Yes, you still have to pay if you are on the pension. Visit the Centrelink website for more information.

The minimum payment is about $6 per week and changes each year. If you pay support for children with different carers you may pay the minimum payment to up to three families although the fortnightly amount is capped at $38.00. In exceptional circumstances, you do not have to pay anything.

If the CSA thinks that you are minimising your income to avoid paying child support, it can require you to pay a fixed amount anyway.

- do I have to pay child support if I am not spending any time with my child?

Yes, child support is payable whether or not the child spends time with you.

- do I have to pay child support for the children of my ex-partner, if the children are not my children?

If you adopted those children, you will have to pay child support for them, because the adoption means that they have become "your children" in the sense that you must financially support them.

If the children are your step-children, you will only have to pay child maintenance if ordered to by the court. You should get legal advice.

What is "child maintenance"?

Child maintenance is financial support which is sometimes payable for your children after they turn 18.

What are the situations in which I may have to financially support my children after they have turned 18?

There are two situations where you may have to go on supporting "adult children". These are:

  • where your child is studying at school, TAFE, or university
  • where you child has a disability or special needs.

In these situations, unless you agree to pay, the carer entitled will have to get an order from the Family Court, for you to pay what is called "child maintenance".

If you have been asked to pay "child maintenance" for your adult child, you should get legal advice.

How does the Family Court decide whether child maintenance should be paid and how much?

The court looks at:

  • what it costs to maintain the child, taking into account the child's age, costs of education, and any special needs;
  • the income, earning capacity, property and financial resources of both the carer entitled and the liable parent;
  • the income, earning capacity, property and financial resources of the child, if any;
  • the necessary expenses of the carer entitled and the liable parent;
  • any published research on the costs of maintaining children;
  • the amount of "child support" which would be payable as if the amount of child maintenance was being assessed by CSA as child support; and
  • any other relevant matters.

Are the processes for payment of "child maintenance" different to the processes for payment of child support?

Yes. Child maintenance is payable only if you have an agreement with the payee, or because an order of the Family Court directs you to pay.

If there is an agreement, this can be registered with the CSA and the CSA can then collect the payments of child maintenance or if agreed you may pay privately.

If the agreement is registered and there are difficulties with payment the CSA can collect child maintenance using the same methods that may be used against a parent who owes child support.

How do I change the amount of child maintenance to be paid, or the way in which it is paid?

To make changes to child maintenance, unless you agree with the other party about the changes, you need to apply to the Family Court for a new order.

If there is an agreement about the maintenance, you and the other party can file at the court an application for consent orders, to bring about the change. See Other ways to resolve a family law dispute.

If you need to ask the court for an order for the change, you have to be able to show the court one of the following:

  • the circumstances of the child, liable parent, or carer entitled have changed; or
  • the cost of living has changed and the amount in the original agreement or court order is therefore no longer appropriate; or
  • that important and relevant facts were not told to the court when the original order was made.

If the court is asked to consider changing the amount of child maintenance payable, it will look at any "arrears" (child maintenance which is owing). The court can make an order to "enforce" the arrears (make the liable parent pay the amount owing), or to "suspend" the arrears (meaning that the arrears do not have to be paid immediately, but may become payable in the future), or to "discharge" the arrears (meaning that the amount owing is will no longer be owing in the present or the future). The court is less likely to enforce arrears which are more than 12 months old unless you can prove you have been making attempts to collect the arrears.

When does a court order for child maintenance come to an end?

The order to pay child maintenance automatically comes to an end when the child turns 18, when the adult child completes their education or at a time stated in the order.

Do I have to pay child support or child maintenance if my child is living overseas?

You may have to if the payee is living in a country which is a "reciprocating country", in other words a country with which Australia has an agreement for payment and collection of child support or maintenance.

Child support or maintenance is usually payable in the country in which the payee lives.

If your case involves having to make payments overseas, you should get legal advice.

If the payer is living overseas, can I get child support or child maintenance from him or her?

Yes, if the payer lives in a "reciprocating country".

If the payer owes arrears and has a record of trying to get out of paying child support or child maintenance, and is about to go overseas, you should ask the CSA for "departure prohibition order", preventing the payer from leaving the country until he or she has made secure arrangements for the payments.

If you believe the payer intends to travel overseas to avoid paying child support you should get legal advice immediately.

Can I enforce a child maintenance order which was made overseas?

Yes, you can register the order at the Family Court of WA. The court will then treat the order as if it was made in Australia. To register the order, see the Family Court website.


What if I need to try to get financial support for my child urgently?

You can make an application to the Family Court for urgent financial support for a child, whether that child will later be supported by child support or child maintenance. If the court makes an urgent order, the payments are called "child maintenance".

If you case is urgent, you should get legal advice.

Do we need a lawyer to help with the child support or child maintenance processes?

You will need assistance to prove who the father of a child is or to prove you are not a child's father.

You do not need a lawyer to prepare any documents for review at the CSA. Lawyers are not permitted to represent you on a change of assessment application. Solicitors may represent you in an appeal to the SSAT. It will be helpful to speak to child support specialist to ensure you understand the legal reason that allows a child support assessment to be changed and how to prove this to the CSA officer.

You can have a lawyer to represent you in the processes which go to the family court. If you do not qualify for a grant of aid from Legal Aid WA, you will have to pay for your lawyer.

Subject to a means test the specialist child support workers at Legal Aid WA may be able to provide you with legal advice and some ongoing assistance. Contact the Legal Aid WA Infoline on 1300 650 579 in relation to your situation.


What happens if I have been paying child support or child maintenance and I later find out that I was not the child's father?

You can make an application to the Family Court. The court may order recovery of the money you have paid for the child, depending on:

  • whether you or the payee knew or should have known that you were not the liable parent;
  • whether you delayed in asking the court to correct the situation; and
  • the financial situation of you and the payee.

For more information, see Proving parentage.

 

Last reviewed: 01/09/2010

Last Modified: 08/09/2010

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.