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The Law and You: Navigating child support matters

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Whether you’ve recently separated, are about to, or have been separated for a significant period, you should review whether the child support arrangements you have in place, or want to put in place, are appropriate.

Child support can be very technical and tricky to traverse so it could be you’ll want to talk to a family law expert about the options available to you. Here they are in a nutshell.

Child Support Agency assessment

  • The Child Support Agency is involved. They assess your case based on a formula that takes into account the percentage of care of a child (the nights of care) you and your ex-partner have, as well as your respective incomes.
  • You can seek to change the assessment in special circumstances. Check the Child Support Agency website to review the 10 reasons available for changing the assessment. You should get legal advice to confirm that your circumstances fall under one of these reasons, although you don’t need a lawyer to prepare your application to change the assessment.
  • The Child Support Agency can pursue your ex-partner if they don’t pay what is required.

Private Agreement

  • The Child Support Agency isn’t involved.
  • Lawyers don’t need to be involved, although you might benefit from getting get advice.
  • You might find the child support calculator/estimator useful.
  • Payment terms can be flexible. For example, one party can pay for all, or a percentage of, school fees and/or out-of-pocket medical costs or extra-curricular activities rather than a set regular amount to the other parent. This isn’t enforceable by law, however, meaning one party can change their mind about abiding by the agreement and cease paying against the agreed terms.

Binding Child Support Agreement (a type of Private Agreement)

  • Lawyers are needed to prepare this agreement and provide independent legal advice to each party about the effect the agreement will have on rights, as well as its advantages and disadvantages.
  • You can each expect to pay $2,000 to $4,000 for legal fees, with the amount depending on which lawyer is preparing the agreement and whether there are changes following the first draft.
  • The Agreement needs to be registered at the Child Support Agency.
  • If one party fails to abide by the Agreement, this can be legally enforced.

Limited Child Support Agreement (a type of Private Agreement)

  • Lawyers aren’t needed to prepare this document, although you may prefer to get independent legal advice.
  • This agreement must be lodged with the Child Support Agency.
  • You must have a child support assessment in place before this type of agreement can be accepted by law and registered at the CSA.
  • Payments must be equal to or greater than the assessed rate (for example, may be school fees or accommodation costs).
  • This Agreement lasts for three years unless:
    • both parties agree to end it earlier
    • one party after three years no longer wants the agreement and advises the Child Support Agency of this
    • the assessment pursuant to the child support formula (but for the agreement) has changed by more than 15 per cent.

Obtain a Departure Order from the Court

  • Court proceedings must be pending in the Federal Circuit Court or Family Court of Australia to bring an application for a Departure Order. Granting a Departure Order isn’t automatic. The Court needs to grant leave and be satisfied it’s in the interests of the party to consider an order made in the special circumstances of the case.
  • The Order is enforceable by law.
  • You don’t need a lawyer, but it is recommended that you seek legal advice because a Departure Order is a technical application and the child support legislation can be clunky.

As mentioned at the beginning of this article, child support can be technical and tricky. Talk to Catherine Coles at Watts McCray, about your child support matters and the options available for you.

This column was prepared by Catherine Coles, who has been practising exclusively in family law since April 2011. Catherine is an accredited specialist in family law and has been recognised by Doyle’s Guide as one of the ACT’s leading Family Lawyers.

Catherine Coles

Contact Catherine or another specialist in Family Law at Watts McCray Lawyers Canberra to talk about child support or other family law issue you may have.

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