Administrative Process of Child Support

Child support in Australia plays a crucial role in ensuring the financial welfare of children whose parents are separated, divorced, or otherwise not cohabiting. It is an essential mechanism designed to ensure that both parents share the financial responsibility of raising their children, even when living apart. The child support system in Australia is administered by Services Australia (formerly the Department of Human Services) under a federal legislative framework. This article looks at the administrative process of child support in Australia, focusing on its structure, procedures, and legal considerations.

Legislative framework

The child support scheme in Australia is underpinned by two key pieces of legislation. The first is the Child Support (Assessment) Act 1989 (the Act), which establishes the process for assessing child support liabilities, including how amounts are calculated and factors considered in determining obligations. The second critical piece of legislation is the Child Support (Registration and Collection) Act 1988, which facilitates the registration and collection of child support payments, including enforcement mechanisms to ensure compliance.

Application for child support

The administrative process begins with an application. A parent, legal guardian, or eligible party (such as a grandparent or carer) can lodge an application with Services Australia. Applications can be submitted online or by completing the relevant forms.

Parents who were married must be separated to lodge an application for child support against their spouse. They must be able to provide proof of this separation. For de facto relationships, it is necessary to provide both evidence of the relationship and evidence of the subsequent separation. For a child born outside of a long-term relationship, the applicant must establish paternity, often through a birth certificate or, in contested paternity cases, a DNA test.

Assessment of child support

Once an application is received, Services Australia conducts an assessment. This process involves determining the financial obligation of the paying parent (referred to as the ‘payer’) toward the receiving parent or carer (referred to as the ‘payee’). The assessment is calculated using a formula prescribed by the Act.

The formula considers several factors, including:

• the age of the child/children
• the taxable income of both parents, less a self-support amount (that is adjusted to reflect minimum wages and cost of living in Australia)
• the costs of raising children, using an estimate of the costs of raising children in Australia, which is adjusted based on the number and age of children
• the amount of time the child spends with each parent (known as the ‘care percentage’), a variable which significantly affects the amount payable, and
• any special circumstances and additional costs, such as those related to a child’s special needs.

The aim is to achieve a fair distribution of financial responsibility that prioritises a child’s best interests.

Private agreements

Parents have the option to enter into private agreements instead of relying on a Services Australia assessment. Private agreements allow parents greater flexibility and autonomy and still promote the best interests of the child, provided that they meet legislative requirements.

There are two recognised types of private agreements in relation to child support:

Binding Child Support Agreements

These are legally binding agreements that require each parent to obtain independent legal advice before signing.

Limited Child Support Agreements

Entering into one of these agreements does not require the parties to obtain legal advice but the agreement must align with a Services Australia assessment of the amount to be paid to be recognised as valid and enforceable.

Registration and collection

After assessment, the liability can be registered with Services Australia for collection. Parents can opt for one of two collection methods:

• payer makes payments directly to the payee, often through a mutually agreed-upon arrangement (private collection)
• Services Australia acts as an intermediary, collecting payments from the payer and transferring them to the payee (Agency collection).
  • This method provides greater enforcement mechanisms and is particularly useful in cases where the payer has a history of non-compliance.

Payment enforcement

If a payer fails to meet their child support obligations, Services Australia has several enforcement powers under the Child Support (Registration and Collection) Act 1988. These include:

• deductions from income, such as direct garnishing of wages or other income
• tax refund interception, where tax refunds due to the payer can be intercepted to offset child support arrears
• court proceedings to recover unpaid amounts, and
• departure prohibition orders, whereby a payer is prohibited from leaving Australia if they have significant arrears of child support.

Australia has reciprocal arrangements with many countries, enabling the enforcement of child support obligations across borders. These arrangements are governed by both the Child Support (Registration and Collection) Act 1988 and international treaties, such as the Hague Convention on the International Recovery of Child Support.

Reviews and appeals

The system allows for administrative and judicial reviews to ensure fairness. Parents dissatisfied with an assessment can seek an internal administrative review from Services Australia, where the decision is reconsidered by a different officer. If a parent is dissatisfied with the outcome of this review, they can appeal to the Administrative Review Tribunal (ART) or, in rare cases, to the Federal Circuit and Family Court of Australia.

For any advice about navigating the application process, or challenging an administrative assessment, contact Go To Court Lawyers on 1300 636 846.