Only in rare instances are child support decisions made by a Family Law Court

In most cases, child support in Australia is set by an administrative agency. The Family Law Courts play a very limited role in child support matters. This article will explain that role.

The administrative process

In almost all cases, the Child Support Registrar is responsible for setting child support. That can happen in one of two ways. Parents can make their own decision about how much child support, if any, one will pay to the other. The do that by entering into a child support agreement and asking the Child Support Registrar to make a support assessment based on that agreement.

The Registrar will only do so if both parties received legal advice before they made the agreement. The Registrar will enforce the agreement if it is reasonable but it has the power to reject agreements that are not in a child’s best interests.

The Registrar can also make a child support assessment in response to an application made by a parent seeking an award of support. The Registrar applies a formula that takes into account:

  • the percentage of time that each parent is caring for the child,
  • the income earned by each parent, and
  • the cost of caring for the child.

As an example, if a child lives with a parent for five days a week and that parent has a lower income than the other parent, the higher income parent will pay support to the lower income parent to compensate that parent for the cost of child care.

Administrative appeals

The Social Security Appeals Tribunal (SSAT) hears appeals from the Registrar’s decisions. Appeals are usually based on disputes about the Registrar’s determination of the percentage of care provided to the child or the income earned by the parents.

The role of Family Law Courts

A Family Law Court will only set child support in limited instances. Those include:

  • Child maintenance is required for a child who has reached the age of 18 (usually because of the child’s disability or because the child has not finished school).
  • A step-parent is being asked to pay child support.
  • Paternity of the child is in dispute.
  • Parents want a court to set aside a child support agreement.

Courts have the power to decide whether the SSAT resolved an appeal correctly, but they do not substitute their own judgment for the registrar’s. When deciding an appeal, the court will defer to the administrative agency’s resolution of factual disputes. The court will, however, correct mistaken applications of the law.

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