Financial Support for Children

Neither separation nor divorce ends your responsibility for your children. Many of those responsibilities are discussed in Children and Divorce, another eBook in this series.

This eBook focuses on your responsibility to support your children financially. It explains your legal obligation to provide for your children, describes how child support assessments are made, discusses child maintenance orders, and considers support issues involving step-parents.

While this eBook is intended to give you a useful and informative overview of the law, it does not and cannot give you legal advice. You can only get legal advice from a lawyer. Recognizing that every situation is different, you should consult a family law attorney to get answers to specific questions that address your rights and obligations concerning the financial support of your children.

Your legal obligation to provide financial support for your children

One objective of Australia’s Family Law Act is to ensure that parents share in the support of their children in a way that is fair. The law imposes a duty upon parents to maintain their children, either by caring for them directly or by supporting them financially, or both. A parent owes that same duty to each of his or her children, without giving a preference to one child above any other.

The law demands that you give a higher priority to supporting your children than you give to any other commitments in your life. Even if your child has an independent source of income or is the beneficiary of a trust established by someone else for the child’s support, and regardless of the income earned by the other parent, your duty to support your child still exists.

You must support your child whether or not:

• You are married, separated, or divorced;
• You were married when the child was born;
• You are the biological or adoptive parent of the child;
• A court or the Child Support Registrar has required you to pay child maintenance or child support;
• Your child lives with you, with the child’s other parent, or with someone else;
• You choose not to have contact with your child.

Step-parents

Step-parents have no legal duty to support a child unless:

• They have adopted the child; or
• They have been ordered by a court to provide financial maintenance for the child.

A court might determine that it is proper to impose a duty of financial maintenance upon a step-parent after considering these factors:

• The length and circumstances of the step-parent’s marriage to or relationship with the child’s parent;
• The nature and length of the relationship that the step-parent has had with the child;
• The step-parent’s history (if any) of contributing to the financial support of the child;
• The child’s need for support; and
• Special circumstances that would create an injustice or undue hardship to any person if not taken into account.

Child support assessments

In most cases, child support is determined by an administrative process rather than the Family Law Courts. The object of the Child Support (Assessment) Act 1989 is to ensure that parents provide an appropriate level of child support to their children. The legislature enacted an administrative scheme after determining that child maintenance orders entered by courts were inconsistent, too often inadequate, costly to obtain, and not easily enforced. The scheme uses a formula to set child support.

Parents who prefer to do so can make a child support agreement without seeking an administrative assessment of child support. If each parent receives legal advice before entering into a written child support agreement, it can become binding on the parties. It can also be registered with the Child Support Registrar and enforced in the same manner as an administrative assessment of child support.

Applying for a child support assessment

An application for a child support assessment may only be made for an eligible child. A child is eligible if:

• The child is under the age of 18;
• The child is not legally married to another person from whom the child has not separated;
• The child is not living in a domestic partnership or registered relationship with another person; and
• The child is an Australian citizen or ordinary resident, or the child is present in Australia when the application is made.

An application for a child support assessment may be made by:

• Either of the child’s parents, provided they are separated or divorced;
• A person who is caring for the child with the parents’ consent;
• A relative of the child who is caring for the child pursuant to a child welfare law; and
• Under special circumstances, other people who are caring for the child.

In most cases, both parents will be assessed even if only one parent applies.

The child support assessment scheme is administered by the Child Support Registrar. An application for a child support assessment is made to the Department of Human Services. The application can be made online. Applications can also be made by telephone or by mailing or delivering the application form to a Service Centre providing child support services.

Determining the child support assessment - percentage of care

Several factors determine the amount a parent will be assessed for child support. The first is the percentage of care that each parent provides for the child. As a general rule, percentage of care is determined by the number of nights the child will spend with a parent during a one year period. In some situations, a period of more or less than one year will be used to determine percentage of care, particularly if the percentage of time that a child spends with a parent increases or decreases during the year.

In some situations, hours rather than nights are used to determine percentage of care. If, for instance, a child is with one parent during daytime hours and the other parent during nighttime hours, using hours rather than nights will reflect percentage of care more accurately.

If the parties have made an oral or written agreement or a parenting plan that governs the time a child spends with each parent, the Registrar will generally reply upon the agreement or plan when determining percentage of care. If the time a child spends with each parent is determined by a parenting order, the Registrar will generally rely upon the order.

If there is a dispute about the amount of time a child spends (or will spend in the future) with each parent, the Registrar will determine a percentage of care after considering all relevant evidence, including statements from the parents, statements from third parties, and documentary records.

A parent can ask for a new assessment to be made if the pattern of care changes. Although a temporary change (due to illness, for instance) will not affect the percentage of care determination, a long-term change in the amount of time a child spends with each parent can lead to a redetermination of percentage of care. This can happen when a parent fails to follow an agreement. If a parent consistently fails to take the child at scheduled times (missing three in a row or five out of eight, for instance), that failure can lead to a new determination of percentage of care.

Percentage of care is important because the assessment formula presumes that parents who provide regular care to their child are directly contributing to the child’s support. That presumption does not apply to a parent whose percentage of care is less than 14 percent, provided that they are given the opportunity for a higher percentage of care (that is, a chance to spend more time taking care of the child).

Child support periods

An assessment will remain in effect during a child support period. The first period starts on the day an application for an assessment is made. It ends when the Registrar makes a new assessment, which begins a new child support period. A new assessment is generally made when new income tax assessments are made for one or both parents. The child support period cannot last longer than 15 months.

Determining the child support assessment - formula

One of six formulas is used to determine the child support assessment. The basic formula, applicable when one or both of the child’s parents are directly caring for the child and neither parent is supporting a child from a different relationship, is used in most cases. The formula takes into account:

• The income of each parent;
• Each parent’s percentage of care for the child; and
• The costs of caring for the child.

The first component is the income of each parent. The assessment formula combines the income of the two parents and then computes the percentage of the total that each earns. Responsibility for child support is determined by that percentage. For instance, if parent A earns $30,000 and parent B earns $70,000, parent A earns 30 percent of the total income and is responsible for 30 percent of the child’s support, while parent B is responsible for 70 percent of the child’s support. For purposes of the child support formula, this is expressed as an “income percentage” of 30 percent for Parent A and 70 percent for Parent B.

The second component is the percentage of care provided by each parent. A table is used to translate percentage of care to a cost percentage. The cost percentage is an estimate of the cost of care that a parent provides directly by caring for the child. In the example above, suppose that parent A has the child 60 percent of the time and parent B had the child 40 percent of the time. According to the table, Parent A’s cost percentage is 65 percent while Parent B’s cost percentage is 35 percent.

In the example above, Parent A’s income obliges that parent to provide 30 percent of the child’s support. Parent A is providing 65 percent of the child’s support through direct care. Parent B will therefore be required to make a child support payment to Parent A because Parent B is required to provide 70 percent of the child’s support but is only providing 35 percent of the child’s support through direct care.

The third component is the cost of raising a child. That cost is expressed as a percentage of income that parents living together will typically spend to care for a child. That cost varies depending upon the age of the child, how many other children the parents have, and the amount of the parents’ combined income.

Based on the first and second components, a parent has an obligation to pay child support to the other parent when a parent’s income percentage is higher than the parent’s cost percentage. Subtracting the parent’s cost percentage from the parent’s income percentage results in a “child support percentage.” The basic formula for calculating the obligation to pay child support is:

Child support percentage x Costs of the caring of the child.

The child support assessment for each child support period is determined by that formula.

Review of a child support assessment

Parents who disagree with a child support assessment can seek internal review from the Child Support Registrar, as well as administrative review from the Social Security Appeals Tribunal (SSAT). Certain decisions made by the SSAT may be reviewed by the Administrative Appeals Tribunal. A parent who believes the SSAT made an error of law can generally seek judicial review of the SSAT’s decision.

Certain decisions made by the Registrar can be reviewed by the Family Law Courts without seeking administrative review. Those decisions include whether the person against whom an assessment is made is actually the child’s parent. Parents can also apply to the court to set aside a child support agreement that they made and to order payment of child care expenses that will be offset against the periodic payments that the other parent must made.

Child maintenance orders

Under limited circumstances, the Family Law Court can order a parent or other party to pay child maintenance. A court can enter a child maintenance order if a child has reached the age of 18, provided that maintenance is needed to permit the child to complete his or her education or the child is disabled. A court can also order a step-parent to pay child maintenance. If a parent or other party is eligible to use the administrative process to obtain a child support assessment, however, a parent usually must do so rather than seeking a child maintenance order.

Warning and Disclaimer
Financial Support for Children by Alan Weiss is a self-help eBook written from the perspective of the author.

The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.