FACTS ABOUT CHILD SUPPORT
In Australia, the entity that administers child support and determines the amount that should be provided is the Child Support Agency CSA. And the law that governs claims for child support is the Child Support (Assessment) Act 1989.
Under this Act, the person who can make a claim from the other parent is the primary carer of the child or the one declared to be eligible-carer.
Under the Act, the eligible carer in relation to a child is a person who has at least shared care of the child. For one to be eligible-carer, a parent or legal guardian of the child consented to the giving of care to the child by that person. Otherwise, even if that person cares for a child and he is not a parent or guardian but the same was without parental consent, he is not an eligible carer under the Act.
Parents are responsible for the financial support (maintenance) of their children. That responsibility is not changed by:
- separation and divorce
- where the children live or the amount of time, they spend with a parent
- the remarriage of one or both parents
Binding Child Support Agreements
Parties entering into Binding Child Support Agreements are required to each obtain independent legal advice with each party’s legal representative executing a certificate similar to the certificate required in Binding Financial Agreements. With Binding Child Support Agreements there is no minimum amount of child support payable. The amount of child support payable in a Binding Child Support Agreement may be less than the administrative assessment issued.
It is important to note however, that a parent’s Family Tax Benefit will be calculated on the basis of what the child assessment would have been had the agreement not applied.
Parties are able to terminate a Binding Child Support Agreement by a written agreement (entering into a new Binding Child Support Agreement) with each party obtaining and executing a Certificate of Independent Legal Advice or by way of application to a court pursuant to section 136 of the Child Support (Assessment) Act 1989.
Limited Child Support Agreements
With Limited Child Support Agreements parties are not required to obtain legal advice or execute a Certificate of Independent Legal Advice. Limited Child Support Agreements can only be in place once an administrative assessment has been determined. They will only be accepted if the amount payable pursuant to the Limited Child Support Agreement is equal to or greater from the amount of the administrative assessment. Limited Child Support Agreements are able to be varied or terminated by the parties entering into a new Limited Child Support Agreement or a Binding Child Support Agreement.
Either parent is able to terminate a Limited Child Support Agreement if the amount payable pursuant to the Limited Child Support Agreement is more than 15% different to the administrative assessment issued. Limited Child Support Agreements can be terminated by either party after three years or at any time by order of the court.
Child Support Objection Process
An objection must be lodged with the Child Support Agency within 28 days of the original decision (unless an extension of time is granted). It must be in writing and state fully the grounds relied on. The other party is given the opportunity to respond. The Registrar is required to consider the objection and any response within 60 days after the objection is lodged and either disallow the objection or allow it in whole or in part. Pursuant to Section 87B the parties will receive a written notice in relation to the Registrar’s decision.
Social Securities Appeals Tribunal Review (SSAT)
Once an objection decision has been made, either party can appeal to the Social Security Appeals Tribunal (SSAT). The SSAT obtained jurisdiction to deal with child support disputes on 1 January 2007. Any application to the SSAT is to be made within 28 days after receipt of the Registrars Notice of Objection.
Once the review has been determined the SSAT will provide the decision and the reasons for the decision. Parties can appeal the SSAT decision in court, but only on a question of law.
Court Role in Child Support
The role of the courts in child support matters has been further restricted with the introduction legislative reforms in 2006-2008.
The Family Court of Australia and Federal Circuit Court of Australia have jurisdiction to hear the following child support matters; An appeal of a decision of the SSAT in relation to the matter of law Where parties are making an application for lump sum child support under Section 124 of the Assessment Act.
Where the parties are both involved in other proceedings pending before the Court, and the court considers it convenient to deal with a child support departure matter at the same time (section 116(1)(b).
Where a party is seeking leave under section 111 to depart from assessments that are older than 18 months (to a maximum of 7 years. An application under section 106A or section 107 of the Child Support (Assessment) Act (paternity matters).
Child support is a complicated area of the law, and one that has been subject to significant change in recent times. It is advisable that you seek a professional advice, we recommend that you contact www.mychildsupport.com.au 1300 782 577
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