Child support – when, how and why?

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When does an obligation for child support arise?

A legal obligation to pay child support arises when:

1. The Child Support Agency issues an administrative assessment for one parent (or party) to pay child support to the other. An administrative assessment by the Agency deals only with “periodic child support”, that is, child support that is paid each week, fortnight, month etc

2. Parties have entered into a Binding Child Support Agreement; or

3. Parties have entered into a Limited Child Support Agreement.

How do you document an agreement about child support?

If parties wish to depart from the administrative assessment for child support, they may choose to enter a Binding Child Support Agreement or a Limited Child Support Agreement.

A Binding Agreement may deal with periodic and non-periodic child support. Non-periodic child support relates to payment of expenses such as private school fees, medical expenses, or private health insurance. In order for such an agreement to be “binding”, both parties must have received independent legal advice about the effect of the agreement on them, and the advantages and disadvantages to them of making the Agreement. A Binding Agreement cannot be varied. It may only be terminated by entering into a Terminating Agreement. If a party wishes to set aside a Binding Agreement, they must make an application to the Court to do so, and such an application will only be successful if certain grounds are satisfied.

Why document an agreement about child support?

Documenting an agreement formalises it, makes it binding and ensures that each party’s rights and obligations are clearly set out.

In some cases, parties reach agreement about child support issues (for example, the payment of school fees or medical expenses for children), and try to include that agreement in parenting orders made by the Family Court or Federal Circuit Court.

The Court does not have jurisdiction to make orders about child support matters except in limited and exceptional circumstances. If such an order is made by the Court, the Child Support Registrar will not question the validity of the order. However, if either party applies for an administrative assessment of child support, the order made by the Court will cease to have effect.

Carrie Gan is a lawyer in the Family Law team at DDCS Lawyers, 18 Kendall Lane, New Acton Canberra City ACT 2601. If you would like specialist advice about your particular circumstances, please contact us on (02) 6212 7600 or mail@ddcslawyers.com.au to find out more.

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