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Child support and child maintenance

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 "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 Department of Human Services (DHS) (Child Support) (formerly the Child Support Agency) is a government agency that looks after child support payments.

Who must pay child support?

Parents are responsible for financially providing for their children. This is the case even if you have never lived with the other parent. If you are a parent and your child lives with someone else (often the other parent) all or some of the time, you may be required to pay child support. This will depend on your income, the other person’s income and how much time the child lives with each of you as well as other factors such as whether you have other children you also need to support.

You liability to pay child support arises when there is an “administrative assessment” from DHS (Child Support) or you have entered into a “child support agreement” registered with DHS (Child Support).

Does a parent have to pay child support if they are not spending any time with their child?

Yes, even if a parent does not spend any time with their child, they will still be responsible for child support payments. The amount of child support payable may vary depending on how much time a child spends with each of their parents.

Be aware that one of the factors the Family Court considers in determining what parenting orders would be in the best interests of a child is how parents have fulfilled their obligations in relation to their child. This includes looking at whether or not a parent has made child support payments. For more information, see Best interests of the child.

What is a formula (administrative) assessment?

The DHS (Child Support) uses a formula to work out how much child support should be paid. The formula takes into account:

  • both parents’ income
  • if you are supporting other children
  • the amount of time you care for the children (your “care levels”)
  • the costs of raising children (including the number of children you have and their ages)
  • the basic living needs of parents

From 1 July 2009, the child support scheme includes children from a previous same sex relationship.

On the DHS (Child Support) website there is an Estimator which shows you how much child support is likely to be payable.

What is a child support agreement?

Instead of using the Child Support formula assessment, you can reach your own agreement with the other parent. The agreement can be about how much, and in what form child support should be transferred. There are two legal or formal types of child support agreements – binding child support agreements and limited child support agreements. It is also possible to have an informal or private agreement with the other person about child support. You should always get legal advice before making a child support agreement, even an informal agreement. An informal agreement can still have an impact on any Centrelink entitlements you may have.

The two formal types of child support agreements

Binding child support agreement


A binding child support agreement must be in writing and signed by you and the other parent.

Both people must obtain independent legal advice before signing the agreement and their lawyers must attach a statement to the agreement confirming that they have provided legal advice about the agreement.

You do not have to have an assessment of child support in place before entering into a binding child support agreement.
Binding child support agreements can also make provision for lump sum payments of child support.

The parents can arrange the payment of child support privately or ask the DHS (Child Support) to collect the child support.
Binding agreements can be ended only by agreement of both parties. If you want to change your binding agreement, you do so by making a new binding child support agreement that specifies that the old agreement is terminated.

If only one person wants to end the agreement, they need to apply to the Family Court. The Court will only set aside an agreement in limited circumstances. Seek legal advice if you or the other person wants to end your binding child support agreement.


Limited child support agreement


A child support assessment must be made through the DHS (Child Support) before you can enter into a limited child support agreement. This is called a notional assessment. The limited agreement must provide for child support that is equal to, or more than, the amount in the notional assessment.

Limited agreements must be in writing and signed by both parties.

The child support can either be paid privately between the parties or the DHS (Child Support) can collect the money. The payee parent's or carer's Family Tax Benefit payments will be reduced based on the amount of the notional assessment.

Either party to the agreement may ask the Child Support Registrar to end the agreement after three years. The parties may also agree to end the limited child support agreement earlier or in limited circumstances one party may apply to the Court to end the agreement. There are other circumstances where a limited child support agreement might come to an end – get legal advice.

You do not need to have legal advice to enter into a limited child support agreement; however, it is always a good idea to seek independent legal advice before signing any written agreements.

The Court can find that a child support agreement is not legal if it was made using threats or pressure.

What if one of us wants to change, or disagree with, an administrative assessment which has been set by the DHS (Child Support)?

You can ask the DHS (Child Support) to review the amount of child support at any time.

It may be possible to have your assessment changed if your circumstances have changed since it was made or you believe that it does not reflect your current situation – for example, if you have recently lost your job or started work, or the amount of time your children spend with you changes. It is very important to tell the DHS (Child Support) as soon as possible if your circumstances have changed as it may not always be possible to backdate payments.

For some changes, you will need to apply to the DHS (Child Support) for a change of assessment. For a list of the circumstances where the DHS (Child Support) will consider a change to your assessment and for more information including a copy of the application form for change of assessment, see Changes to your Child Support assessment in special circumstances on the DHS (Child Support) website.

The DHS (Child Support) will send you a letter letting you know of any changes made to your child support assessment and advising you that you have the right to object to their decision. Usually you will have 28 days to send in your objection. The DHS (Child Support) will then write back to you letting you know what decision has been made about your objection. If your objection was not successful and you want to keep trying, you can appeal to the Social Security Appeals Tribunal.

In some limited circumstances it may be possible to appeal to the Family Court from a decision of the Social Security Appeals Tribunal.

It is important to get legal advice if you are considering appealing a decision to either the Social Security Appeals Tribunal or the Family Court.

How does the collection and enforcement of child support payments happen?

Child support payments can be transferred privately between yourselves, such as payment by direct debit to a bank account, if you agree to do this. This agreement does not have to be in writing.

Alternatively, you can arrange for the DHS (Child Support) to collect and enforce payments of child support whether payments are to be made under an administrative assessment or a child support agreement.

Which option for collection should I choose?

If the payer is likely to pay on time and pay the right amount, then using a private arrangement may be suitable for you. Get legal advice before entering into a private arrangement. It may be better for the DHS (Child Support) to collect your child support if:

  • The payer does not have a good payment history
  • The payer is not likely to pay
  • There has been family violence (for more information, see Family violence and family law)
  • The payer has not lodged tax returns on time or usually lodges very late
  • The other parent’s income used in the assessment may not be correct.

What can I do if I am having problems getting child support payments?

If you have a private collection arrangement and it breaks down or stops, you can ask the DHS (Child Support) to start collecting the liability. The DHS (Child Support) can usually only backdate collection three months, so it is important to take action quickly if payments are not being made.

Where the DHS (Child Support) is collecting child support for the receiving parent, either under an agreement or administrative assessment, and the payer falls behind or stops, the DHS (Child Support) can take action to enforce collection of child support. This may be done by:

  • taking money out of any tax refund directly from the Australian Taxation Office, before the payer gets any of the refund due 
  • taking money out of a payer’s bank account which is in his or her sole name 
  • taking debt recovery action against the payer in Court.

The DHS (Child Support) can also issue a departure prohibition order that prevents the payer from leaving Australia.
See the DHS (Child Support) website for further information on collection and enforcement.

From 1 January 2007 payees can personally make an application to a court to enforce collection of outstanding payments of child support while the case is still registered for collection with the DHS (Child Support). Parents are required to advise the DHS (Child Support) in writing of their intention to take private enforcement action. The DHS (Child Support) must also be notified of any orders made by the court in relation to the debt.

Get legal advice before taking any action to enforce a child support debt as court proceedings can be complex.

Can I get a child support assessment when I do not have proof that my ex-partner is the father of my child?

The DHS (Child Support) will only issue a child support assessment to you if you can prove the paying parent is a biological or adoptive parent of the child.

If you cannot provide acceptable proof, you may need to go to the Family Court and have DNA testing. For more information, see Proving parentage. Get legal advice as you may need a lawyer to help you with this.

When is child support no longer payable?

Child support:

  • is usually payable until a child turns 18 years of age. If your child is turning 18 in the year they complete their secondary education your child support may extend to the end of the school year
  • may be stopped before a child turns 18 years of age if the child becomes self sufficient, marries or becomes a member of a 'couple'

If your child is turning 18 and you need child support payments to continue due to ongoing education, or to provide care for a child with an intellectual disability or physical disability, see below under When is child maintenance payable for children after they turn 18?

Is child support payable where the child and the receiving parent live overseas?

If the receiving parent and the child live in a reciprocating country and they are eligible to receive child support according to Australian laws, you may have to pay child support. A list of reciprocating countries is available on the DHS (Child Support) webpage Reciprocating jurisdictions and residency for Child Support.

The receiving parent applies to the child support agency of the country where they live and that authority sends a request to the DHS (Child Support) in Australia.

If the payer is living overseas, do they have to pay child support?

Whether a payer parent has to pay child support if they are living overseas will depend which country they are living in. If the payer lives in a reciprocating country you may be able to arrange for child support to be paid to you in Australia. A reciprocating country is a country with which the Australian Government has made an agreement about the collection and enforcement of child support payments.

Some countries will only accept child support arrangements outlined in Court orders but many countries such as New Zealand, England and the United States will accept assessments of child support made by the DHS (Child Support) in Australia.

You should get legal advice if this applies to you.

If the payer lives in a non reciprocating country it can be difficult to get any child support or child maintenance. Usually orders or assessments made in Australia about child support or child maintenance will not be enforceable overseas.

What if there is a disagreement about who is a parent?

Sometimes there is disagreement about who is a parent for the purposes of paying child support. For more information, see Proving parentage.

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?

If you find out that you are not the father of a child for whom you have been paying child support, your first step should be to see if you can negotiate with the mother (or payee) about ending your child support liability. You can ask the mother to undergo a DNA parentage test. If you can afford to pay for the test, this might make it easier for the mother to agree.

Important: If you have safety concerns, it may be best not to communicate with the mother or payee in person. If there is a violence restraining order (VRO) in place, you must not communicate with the other person unless the order specifically states otherwise.

If you negotiations with the mother or payee are not successful, you can make an application to the Family Court to seek a declaration that you should not be assessed to pay child support. The Court may also consider whether you should be refunded child support that you have already paid. You will have to prove to the Court that you are not the biological father of the child by undergoing DNA testing through an accredited DNA laboratory

The DHS (Child Support) can only end your liability to pay child support if the Court makes the declaration that it should end or if the mother (or payee) asks them to end it. They will not end the liability if you simply show them a DNA test report stating that you are not the father.

If you believe you are not the father it is important that you deal with this as soon as possible. The time you take to request DNA testing will be taken into account by the Family Court when it is deciding what to do about your child support liability.
You should seek legal advice before starting Court proceedings.

In what circumstances might we need to ask the Family Court to sort out our child support matter?

The DHS (Child Support) deals with most child support matters. However, you may have to apply to the Family Court about:

  • paternity matters: either party can apply to a court to resolves disputes involving paternity of children and entitlement to child support - see Proving parentage
  • Child Support Agreements: applications can be made to set aside a child support agreement
  • application to change an assessment that is more than 18 months old: a Court can give permission to change an assessment that is more than 18 months old, but not more than 7 years old
  • 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 DHS (Child Support) collect you must advise DHS (Child Support) that you intend to take enforcement action 14 days before you file your Court application.
  • some circumstances where the payer is overseas
  • maintenance orders: Court orders and agreements can be made for various types of maintenance payments, including maintenance for;
    • adult children (over 18) who are studying or have a mental or physical disability
    • children (under 18) who are living independently and applying for maintenance in their own right
    • step children (step child) maintenance

If I am eligible to receive child support, do I have to insist that the other parent pays?

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.

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" for legal purposes.

If the children are your step children, you will only have to pay child support if ordered to by the Family Court. You should get legal advice if the children’s parent tries to claim child support from you.

What is "child maintenance"?

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

When is child maintenance payable for children after they turn 18?

There are two situations where child maintenance may be payable for “adult children”:

  • where the maintenance would be necessary to enable the child to complete their education (school, TAFE, or university)
  • where your child has a physical or mental disability which prevents them from supporting themselves.
    You can make an agreement with the other parent about adult child maintenance, or you will need to seek an order from the Family Court

Either of the child’s parents, a grandparent, the child themselves or any other person concerned with the care, welfare or development of the child can apply Family Court for an order for adult child maintenance. If the child is under the care or guardianship of a person under a child welfare law, child maintenance can only be applied for by the child, a parent or relative of the child with daily care of the child, or a child welfare officer.

If you would like to seek child maintenance for your adult child, or you have been asked to pay adult child maintenance, or if you have an agreement or Court order about child maintenance and want to change it, you should get legal advice.

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 child support you should be paying, or what child support you should be receiving, you should get legal advice.

Legal Aid WA has child support specialists who may be able to assist you with your child support issues. Contact the Legal Aid WA InfoLine on 1300 650 579 for more information.

Gosnells Community Legal Centre and Bunbury Community Legal Centre may also be able to provide advice and assistance.

Where can I get more information?

 

Last reviewed: 12/11/2012

Last modified: 18/09/2015 8:43 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.