Australia’s child support system is managed through three main Acts:

• • the Child Support (Assessment) Act 1989 (Cth) (CSA Act);
• • the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act)); and
• • the Family Law Act 1975 (Cth) (FLA).

The principal object of the Child Support (Assessment) Act is to ensure that children receive a proper level of financial support from their separated parents: s 4(1), Child Support (Assessment) Act 1989.

The Act recognises that parents of a child have a primary duty to maintain that child. However, this duty does not take priority over a parent’s right to support himself or herself: s 3, Child Support (Assessment) Act 1989. The level of financial support is determined according to the financial capacity of the parents and reflects any change in their standard of living. However the legislation intends that parents should be able to negotiate their financial arrangements privately without needing to go to court.

Child support can be provided for in three main ways:

• • pursuant to the child support formula: see Child support assessment;
• • by private agreement: see Child support agreements; or
• • by court order.

In most cases an application to the Commonwealth Department of Human Services (formerly, and still colloquially, known as the Child Support Agency ("CSA")) is the first step for any parent wishing to secure child support as the application will trigger any liability of the other party. Even if that liability is not enforced the debt will continue to accrue from the date the application is successful. Parties must obtain an assessment from the CSA before being able to ask the court for maintenance orders.

Child support assessments

Child support assessments are administrative assessments done by the Department of Human Services (Child Support Agency). The Child Support Registrar has the decision-making powers under the child support legislation. The assessment involves the application of a mathematical formula set by the Child Support (Assessment) Act 1989 (Cth) (CSA Act), which takes into account the time the child spends with each parent, the income of the parents and a statutory table outlining the expenses for the child/ren. The assessment is issued to both parents and binds the parents to an amount payable monthly by the liable parent.

See Child support assessment.

Departures and objections

The child support assessment can be varied or discharged, the procedure for which will depend on the grounds on which a variation is sought. In most cases, the parties will seek an internal review of the assessment from the CSA and if not satisfied with that outcome, will appeal to the AAT for a review.

The Family Court (of Australia and in WA, the Family Court of Western Australia) and the Federal Circuit Court have jurisdiction to hear applications in child support matters in limited circumstances, namely:

• • on appeal from the Social Services & Child Support Division (SSCS Division) of the Administrative Appeals Tribunal (AAT) on a question of law; or
• • when the parties have associated (ie financial or related parenting) proceedings before the court and the court considers it appropriate to deal with the child support application at the same time.

See Departures and objections.

Child support agreements

Parents are encouraged to make their own agreements in relation to child support, and they can do so using either a “limited” child support agreement or a “binding” child support agreement. The parties must have been assessed prior to entering the agreement and only eligible carers are able to receive payments. A carer may be a parent or a non-parent carer but both parties must be assessed and be parties to the agreement.

Limited child support agreement

A limited child support agreement is defined under s 80E of Child Support (Assessment) Act 1989 (Cth) where the parties have not had independent legal advice, and the legal effect is, therefore, “limited”. Before entering a limited agreement, the parties must have been assessed and the amounts payable may not be less than the assessed amount. A limited agreement will automatically cease in certain circumstances such as the child turning 18 years old or ceasing to live with the carer.

A binding child support agreement

A binding child support agreement is defined under s 80C of Child Support (Assessment) Act 1989 (Cth). It is an agreement which provides more certainty and flexibility for the parties. However, it is a pre-requisite of such an agreement that the parties have each had independent legal advice and that the agreement satisfies the technical requirements of the Child Support (Assessment) Act 1989 (Cth). Child support agreements, whether limited or binding, can either set the child support amount to be paid by one parent to the other or can modify the statutory formula pursuant to which child support is calculated pursuant to the Act, eg by fixing the expenses for the child in excess of what the statutory table provides to include, for example, private school fees or medical expenses or fixing the income for the payee or payer parent. It can deal with all or some of the child support liability.

A common example is for a child support agreement to provide that in addition to the amount required to be paid pursuant to the Act (ie pursuant to the assessment by the agency), a parent also pay the children's private school fees, half of the expenses for the children's extra-curricular activities and out of pocket health expenses.

See Child support agreements.

Payments of child support

Agreements or orders concerning the payment of child support can make provision for payments in a variety of ways, including:

• • periodic payments — this is the most common method of payment and involves the paying parent paying a set amount weekly, fortnightly or monthly to the receiving parent;
• • payment of specified expenses — whether those expenses are regular (such as mortgage payments or school fees) or irregular (such as medical or dental expenses) either by way of reimbursement to the first parent or to a third party; and
• • lump sum payments — this is less common and is generally used either to make up for payments missed in the past, to make provision for a specific expense or as a payment in advance of periodic child support.

See Lump sums.

Enforcement of child support obligations

One of the practical problems relating to child support is the question of enforcement of the obligations. The procedure to follow for a party to enforce those obligations will depend on whether the obligation to pay child support comes from an agreement, assessment or court order. Care must be taken to pursue the action required that is most advantageous to your client. The cost of future enforcement is a major consideration, and often the cost to pursue enforcement outweighs any financial benefit the client is seeking. However, enforcement might be worthwhile particularly if the children are young and the party is potentially looking to enforce the child support obligation for many years to come.

See Enforcement.

Step-parents

It is possible for a step-parent to be liable to pay child support, but only in limited circumstances. From 1 July 2008, the Registrar can treat a step-child as a resident child of a parent, if no-one else can financially support the step-child: s 117(10), of the Act. This means parents may be able to have step-children considered administratively, when calculating child support, without the requirement to obtain court orders.

See Step-parents.

Overseas parents

Following the breakdown of a relationship, a parent may relocate overseas (whether moving to or from Australia). In such circumstances, and where certain jurisdictional requirements are met, the CSA may be able to assist in collecting child support due from a parent residing in Australia, or facilitate the collection of child support due from a parent residing overseas.

See Overseas parents.