If you are caring for a child and you are not the child’s parent you may be able to apply for child support from one or both of the child’s parents. To do this, you must still make an application to the Department of Human Services in the ordinary manner and will be subjected to a Child Support Assessment.

Some common examples of non-parent child support carers include members of the child’s extended family such as grandparents, older siblings, aunts and uncles or those entrusted by the child’s parents or the court to care for that child including legal guardians.

To enable you to claim child support as a non-parent carer, you must not be in a domestic or intimate relationship with one of the child’s parents. This applies to step-parents or de facto partners as they are prevented from receiving child support from either of the child’s parents whilst that relationship continues.  Additionally, to be an eligible non-parent carer you must be able to show that you have at least 35% care[1] of the child. This means that you must care for the child at least 128 nights per year[2] or an equivalent time arrangement if not wholly overnight time.

It is also important to note that adoptive parents are not eligible to receive a Non-Parent Child Support Assessment to receive support from the child’s biological parents. This is because, under section 5 of the Child Support (Assessment) Act 1989, the term “parent” includes a person who legally adopts a child. This person becomes the child’s ‘legal parent’. This is different to a person becoming a child’s legal guardian.  “If a non‑parent carer has care (however described) of a child under a child welfare law, the non‑parent carer may apply for child support for the child only if the non‑parent carer is a relative of the child”.[3]

How do you apply for Child Support?

Firstly, you will need to submit an application through the Department of Human Services the Child Support Agency who will assess your entitlement to Child Support based on the information you provide. You will need to be able to show that the parties named in your application are the legal parents of the child and that you are an entitled person to claim support.

The Child Support Agency will have a look at your application and determine the amount of child support that will be payable and this will be based on the income of both parents and the amount of care that you have of the child. In this case, your income is not a relevant factor and will not be assessed by the Child Support Agency.

Ordinarily, child support will be paid by both parents and your application must name both parents if they are known. However, there is an exception to this rule if; the identity or whereabouts of a parent is unknown, the parent is deceased, does not ordinarily reside in Australia and does not reside in a country that recognises Australian Child Support Arrangements.

Under the Child Support (Assessment) Act 1989[4], the percentage of care is calculated by the time the child is likely to spend with each party to the Child Support Arrangement and the care that each party is likely to provide during that period. If there is any change to the living arrangements during a child change over time, the support assessment is likely to change as well. It is important that you keep the Child Support Agency informed of any change in circumstances.  

Additionally, entitlement to child support will automatically cease under section 12[5] if;

1. The child dies;
2. The child turns 18;
3. The child is adopted by the non-parent carer;
4. The child is no longer ordinarily resident in Australia or is no longer an Australian Citizen.

In some cases the Child Support Agency will be required to give consideration to other factors not mentioned above. To find out more about your entitlement to Child Support you may access the Child Support Guide from the Department of Human Services here.

If you have any concerns about your entitlement to child support or would like to appeal a decision of the Child Support Agency please contact our office for your free initial consultation with one of our family lawyers.

Footnotes

[1] Department of Human Services QLD

[2] Department of Human Services QLD

[3] Child Support (Assessment) Act 1989 (Cth) Section 26A

[4] Child Support (Assessment) Act 1989 (Cth) Part 5, Division 4

[5] Child Support (Assessment) Act 1989 (Cth)

If you are paying or receiving child support payment, then you can apply to the Child Support Agency to change the child support assessment in special circumstances.   

The administrative process is set out in Part 6A of the Child Support (Assessment) Act 1989 (Cth)  for a child support assessment to be changed, in limited situations. The Child Support Agency sets out ten reasons which allow a person to bring an application for changing child support assessment pursuant to the Child Support (Assessment) Act 1989 (Cth). 

In our experience, some of the reasons that are commonly relied upon by a parent for changing the assessment are: 

• Reason 2 – The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs. 
• Reason 3 – The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended. 
• Reason 8 – The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents. 

An applicant cannot simply apply for change of assessment because they think the assessment is unfair. They must nominate at least one of the ten reasons in their application as well as provide details of their financial circumstances.  There are also legal elements that the application must satisfy under these reasons, with relevant evidence and reasoning. 

The application is usually lodged with the Child Support Agency. The Child Support Agency has the power to set a new annual rate of child support in substitution of the original assessment. 

A Child Support Agreement is a useful tool for parents to use where there is agreement as to the amount of child support payable.

Child Support Agreements bypass the use of the Child Support formula to allow parents to agree on terms of payment.

How do you create a Child Support Agreement?

There are two (2) ways in which a Child Support Agreement can be formulated:-

1. Binding Child Support Agreement

Binding Child Support Agreements are written agreements for child support signed by both parents after getting independent legal advice about entering into or ending an agreement.

This legal advice must be provided by a legal practitioner who has been admitted by the Supreme Court of a State or Territory of the Commonwealth of Australia and holds a current practising certificate.

The legal practitioner must provide a statement they have provided the parent with independent legal advice as to the effect of the agreement on their rights and the advantages and disadvantages of entering into such an agreement.

The agreement must include an acknowledgement of this advice.

A Binding Child Support Agreement can be made and accepted, even if a child support assessment has not been made. The agreement can be made for any amount that both parents agree to.

2. Limited Child Support Agreement

Limited Child Support Agreements are formal agreements for child support that are in writing and signed by both parents.

Legal advice is not needed before entering into a Limited Child Support Agreement.

Before the Department of Human Services (Child Support) (“the Department”) can accept a Limited Child Support Agreement:

1. there must be a child support assessment already in place; and
2. the annual rate payable in the agreement must be equal to, or more than the annual rate of the child support assessment.

Importantly, a Limited Child Support Agreement can only be in place for a maximum of three (3) years. After this time, either parent can terminate the agreement.

Lump sum payments

A Child Support Agreement can include lump sum payments including transfer of property, to be credited as child support, instead of monthly cash or electronic payments.

A child support assessment must be in place for lump sum payment agreements.

The lump sum must be equal to or greater than the annual child support rate under that assessment.

The lump sum will be credited at the rate of 100% of the child support payable, or at a lesser rate if specified in the agreement.

The remaining lump sum will be indexed every year by the Consumer Price Index as published by the Australian Bureau of Statistics (“the ABS”).

Notional assessment

When a Child Support Agreement is accepted, the Department will make a provisional notional assessment of how much child support would be payable if an agreement was not in place.

The provisional notional assessment is given to both parents to check that their circumstances are properly reflected.

Parents have fourteen (14) days from when it is issued to contact the Department and update their details, if necessary.

The provisional notional assessment becomes a notional assessment fourteen (14) days after it is issued or when all requests to vary details have been finalised.

The notional assessment amount is used in calculating the relevant amount of Family Tax Benefit Part A as determined by the Australian Department of Human Services (Centrelink) (“Centrelink”).

The notional assessment is updated:

1. every 3 years;
2. if the amount of child support payable under the agreement changes by more than 15%; and
3. for limited agreements, whenever either parent asks for a new notional assessment.

When is a Child Support Agreement terminated?

The child support legislation provides that a child support agreement may be terminated by:-

1. entering into a new agreement;
2. a court order; and
3. if a Limited Child Support Agreement is more than three (3) years old.

Parties to a Child Support Agreement are not able to vary the terms of the agreement.

A new Child Support Agreement must be entered into.

How is a Child Support Agreement set aside?

If either party are able to establish the following grounds, a Court may set aside a Child Support Agreement:

1. where the agreement of one of the parties was obtained by fraud, undue influence or unconscionable conduct;
2. where there has been a significant change in circumstances;
3. where the annual rate of child support payable under the agreement is not proper or adequate; or exceptional circumstances arise after the agreement is made.

If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.

Typically, child support is only payable until the relevant child becomes a legal adult. That is, the day the child officially turns 18, any child support agreement becomes void. However, there are two main exceptions to this rule found under section 66L of the Family Law Act 1975 (Cth) (‘the Act’), where child support can continue after the child turns 18.

They are as follows:

1. 1. The child is completing secondary or tertiary education; or
   2. The child has a mental or physical disability.

The Child is Completing Secondary or Tertiary Education

If the child turns 18 during their final year of high school, the parent receiving child support payments can apply to the Department of Human Services (Child Support) (‘DHS’) to extend the support until the end of the year. However, this application must be done before the child turns 18. This can be completed by either the child or the care giving parent.

In relation to tertiary education, however, the exception is not so straight-forward. Currently, there is no legal obligation to provide financial support to a child undergoing a post-graduate degree.

However, if payment is deemed necessary under the circumstances of the case, maintenance can be provided for any course completed at TAFE or University, or as part of an apprenticeship or vocational course.

According to Everett v Everett (‘Everett’), the payments are necessary if they are substantially required by the child and it is reasonable to require the parent to contribute in light of the parties’ financial and other related circumstances. These payments need not be absolutely essential to be considered ‘substantially required’.

Further considerations that can be made are as follows:

• There must be a reasonable possibility of the child succeeding and finishing the course they wish to undertake.
• The course must be appropriate in assisting the child in becoming independent.
• A child’s entitlement to a government student allowance will not be considered when assessing adult child maintenance applications.
• It does not matter if the child is completing multiple degrees or has been able to undertake prior studies without extra financial support.
• The expenses that require adult maintenance must be necessary for the completion of the child’s study.

The Child has a Mental or Physical Disability

To be eligible for adult child maintenance due to circumstances of a mental or physical disability, the child must be so dependent that they are unable to support themselves. Medical evidence must be presented to prove they cannot provide their own income.

The amount of maintenance paid depends on the following key factors:

1. 1. The child’s capacity to earn their own income
   2. Each parent’s capacity to contribute financially
   3. The child’s necessary living expenses

How the Courts Assess the Appropriateness of the Child Support Claim

When determining whether to grant child support and in what amounts, the test is an objective one, in that the amounts must be objectively reasonable in the particular circumstances. Necessary expenses for the child include learning equipment and any expenses associated with special needs, but do not include HELP or HECS expenses.

There is an expectation that the child will contribute money to their expenses by way of part- time or casual work if they are capable.

When assessing the parent’s capacity to contribute, their income earnings and their other commitments will all be considered (Bienke v Bienke-Robson (1997) 23 Fam LR 569, 572). This includes any other children they have and/or need to support.

It does not matter how strong or warm the relationship is between the child and the parent making support payments. Under section 66J(1) of the Act, there is no consideration made for the relationship between the child and the parent unless it is a very special circumstance under section 66K(1)(e). However, the courts have been known to lightly consider: how estranged the child is with their father/mother, if the parent will be able to enjoy the child’s academic achievements, if the parent helps with the child’s academia, and if the parent will receive gratitude for the financial support.

Essentially, an estranged parent can be required to pay child maintenance after the child reaches 18 years of age, even if their relationship is limited or there is no relationship between them at all. If the parent wishes the Court to take into account their lack of relationship with the child when making a decision, they must prove failure to do so would result in injustice or undue hardship to themselves or someone else.

How to ensure the child support is actually paid

For the maintenance to be legally binding, the parent or child must apply for a Court Order which sets out the amount of adult maintenance that needs to be paid. Once granted, the parties may then apply to the DHS to register the Court Order.

This makes the child support registrar obliged to enforce the order. If any circumstance changes regarding either parties’ income earning capacity, the child’s education or any other relevant circumstance change, the DHS must be notified to update or adjust the plan accordingly.

Alternatively, if both parents can reach a consensual agreement outside of court, they may submit an application for consent orders. This means the parties are not bound by the s 66L exceptions and can extend the child support payments on any terms they can both agree upon so long as they are still reasonable.

These Orders can also be registered with the DHS.

If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.