Child Support

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

Following a separation, parents will often have to deal with child support in some way. This can be through an application to Services Australia, making an agreement with the other parent or choosing to leave any arrangements as a flexible, ad hoc arrangement.

Child Support Assessment

Services Australia receives applications and will provide an assessment about which parent should pay what amount in child support. The Agency will look at factors including both parents’ incomes, how much time the child spends with each parent and how old the child is. Information on how to apply and the application form can be found here: https://www.servicesaustralia.gov.au/how-to-apply-for-child-support-assessment?context=21911.

If the circumstances of either parent change, Services Australia can re-examine the situation and see if the child support assessment needs to be adjusted. Services Australia provides a calculator to help estimate how much a parent may expect to receive here: https://processing.csa.gov.au/estimator/About.aspx.

For more information about how child support payments are calculated more generally see: https://www.servicesaustralia.gov.au/how-we-work-out-your-child-support-assessment?context=21911.

Child Support Agreements

There are two agreements that could be used to determine child support.

Binding Child Support Agreement

A Binding Child Support Agreement (BCSA) lets parents (or a caregiver of the child) make binding financial decisions about how to support their child. Both parents will need to seek independent legal advice to make this agreement valid. Each lawyer will need to sign a declaration in the agreement stating they explained the advantages and disadvantages of the agreement to their client.

A BCSA does not require the CSA to provide an assessment as a basis for the agreement. A BCSA cannot be varied and it can only be changed by terminating the agreement and making a new agreement. To terminate the BCSA, there must be a documented agreement by both parties to the termination.

Limited Child Support Agreement

A Limited Child Support Agreement (LCSA) allows the parents or caregivers of a child to make some decisions about how best to support the child. However it requires that a child support assessment is made prior to the agreement. For a LCSA to be valid, the amount payable must match the amount indicated by the assessment. Parties to this agreement do not need to have independent legal advice before it is agreed to.

A LCSA cannot be varied and it can only be changed by terminating the agreement and making a new agreement.

More information about both types of agreement is here:
http://guides.dss.gov.au/child-support-guide/2/7/1#bindingchildsupportagreements

Court Applications for Child Support

The Federal Circuit and Family Court (FCFC) does not make assessments of child support and you cannot apply to the Court until you have taken steps through Services Australia.

If you dispute an assessment of Services Australia and have lodged an objection with Services Australia (which involves an objections officer at Services Australia completing a review and notifying you of the outcome), you can apply to the Administrative Appeals Tribunal (AAT) to review Services Australia’s decision. A Child Support first review is done in the Social Services & Child Support Division of the AAT. The AAT can do the following:

• Affirm the decision (the decision is not changed);
• Vary the decision (the decision is changed in some way);
• Set aside the decision and substitute it (the decision is replaced with a new decision); or
• Set aside and remit the decision (the matter is sent back to Services Australia to make a new decision).

The AAT’s first review may be reviewed once more by a Child Support second review or appealed to the FCFC within 28 days of the AAT decision (see https://www.aat.gov.au/steps-in-a-review/child-support/first-review-by-the-aat/decision for more information about this process). If the dispute or objection is not in the AAT’s scope, then it may be heard by the FCFC.

For more information on AAT Child Support reviews generally see: https://www.aat.gov.au/steps-in-a-review/child-support/child-support-overview and https://www.aat.gov.au/fact-sheets/child-support-review-fact-sheets/child-support-care-decisions-fact-sheet.

Child support matters the Federal Circuit and Family Courts (FCFC) can hear

The Court can hear applications that may affect child support including:

• Making a declaration that a person is not a parent under the meaning of the Child Support Act;
• An application to set aside a Binding Child Support Agreement if the agreement was obtained by fraud, undue influence, duress, unconscionable conduct or there are exceptional circumstances that have arisen which will result in a child or party suffering hardship if the agreement is not set aside;
• An application to set aside a Limited Child Support Agreement if there has been a significant change in circumstances of one of the parties, the annual rate of child support is not proper or adequate or if the agreement was obtained by fraud, undue influence, duress or unconscionable conduct;
• An urgent application for the payment of child support;
• An application for child support to be paid in a form other than periodic amounts;
• An application for a stay order (a temporary order that suspends or reduces the payment of child support under a final order is made);
• An appeal from an AAT decision (within 28 days of the AAT decision).

For more information on making a Child Support application to the Court see: https://www.fcfcoa.gov.au/fl/pubs/fl-child-support.

Maintenance for children over 18 years of age

The Services Australia child support scheme only applies to children under 18 years of age. However child support can continue for children over 18 years of age if they have not completed High School when they turn 18. This application must be made while the child is still 17. Applications made after the child has turned 18 will only be accepted in circumstances which are exceptional, outside your control and have prevented you from applying before your child turned 18. Where an application is successful, the extension will continue until the last day of the child’s final school year. For more information on applying to Services Australia for an extension of child support see: https://www.servicesaustralia.gov.au/child-support-when-your-child-turns-18.

In all other cases, the FCFC can make an order for ongoing child maintenance for children over the age of 18 years, where the maintenance is necessary to enable that child to complete their education or because of the child’s mental or physical disability. For more information on making a Child Support application to this effect see: https://www.fcfcoa.gov.au/fl/fp/child-support.