When couples separate, they can choose to self-manage the financial arrangements for their child or children, or either one can approach the Child Support Agency ("CSA") for an assessment for child support. When the CSA is required to make an assessment, then it will use one of many formulas available, and based on that relevant formula, calculate the required payment.
What about non-parent carers?
The child support laws also operate in favour of non-parent carers. A non-parent carer may be eligible to receive child support from either one or both parents of the child or children. There are specific provisions that address non-parent carers that may impact on such carer's eligibility despite the level of care that is in place. It is a tangled maze to navigate and a proper examination is required to discern the application of the child support laws to the individual circumstances.
Which law applies to me?
The child support regime now operates uniformly throughout Australia. Previously, the child support laws discriminated between married and unmarried couples living in Western Australia. For married couples living in Western Australia, the Child Support (Assessment) Act 1989 (Cth) applied. Until recently, for unmarried couples living in Western Australia the Child Support (Adoption of Laws) Act 1990 (WA) applied.
The peculiarities of being a federation resulted in creative lawmaking due to the constant power struggle between the State of Western Australia and the Commonwealth of Australia. Accordingly, married couples living anywhere in Australia and unmarried couples, living in any other State or Territory outside of Western Australia, enjoyed the same national law concerning child support. For unmarried couples living in Western Australia, the national child support laws were adopted up to a particular point in time and these adopted laws did not always apply contemporaneously. Additionally, the adopted laws did not always maintain pace with the changes made by the Commonwealth Parliament unless those were adopted. Accordingly, it was not usual for the child support laws to differ between married and unmarried couples living in Western Australia.
On 15 May 2019, the Western Australia Parliament referred its powers concerning child support for unmarried couples to the Commonwealth Parliament.
When child support is not enough – What do I do?
In circumstances when the parent receiving the child support payments objects to the assessed payment, the objecting parent can seek a re-assessment or departure of the original assessment. Whilst objecting parents may have varying motivations or reasons, it is important to keep in mind that the principal object of the child support law is to ensure that "children receive a proper level of financial support from their parents".
However, there are avenues available for the objecting parent to pursue should there be a dispute about the assessed payment amount, namely:
- seeking an administrative departure order via the CSA;
- seeking a court-based amendment to the CSA assessment; or
- seeking a court-based departure order.
What does a departure order involve?
It is critical to remember that the objecting parent may be required to exhaust all administrative processes first before that parent can pursue court proceedings. Whether a parent is seeking a department from the CSA's assessment through its administrative process or through a court proceeding, different thresholds will be applicable and must be considered within the facts of each individual case.
When an administrative departure is sought through the CSA, the objecting parent merely needs to satisfy the Registrar of the CSA that due to special circumstances that exist, there should be a departure from the assessment made by the CSA. Before a determination is made by the Registrar, several other matters must be considered as well.
In terms of seeking a departure from a court, the objecting parent must satisfy the court that it would be in the interest of both the parents to consider whether a departure should be made from the assessment made by the CSA. Before a determination is made by the court, several other matters must be considered.
The matters to be considered by the Registrar when seeking an administrative departure are not as involved or complex as those matters that must be considered by the court when seeking a court-based departure order.
Are there any alternatives?
Separating couples can also enter in private, binding, agreements that deal with the arrangements for the financial support of their child or children. There are two kinds of such agreements, namely:
- limited child support agreements; and
- binding child support agreements.
These agreements are complex, having varying strict requirements, and must conform with the legislative provisions of the child support laws. However, these agreements will greatly assist couples with defining what kinds of payments are made, received, and whether any discounts should be available for the paying parent. Failure to properly account for the legislative provisions may result in the agreement being partly or wholly ineffective or non-binding.
Couples will also be required to lodge their agreement with the Registrar and it must be accepted by the Registrar.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.