Child Support

Parents can agree privately and informally on how they will support their children after separation.

Usually this is only suitable when:

(i)         there is a clear agreement between the parents for payments;

(ii)       there is amicable communication between the parents about Child Support;

(iii)      the parent receiving the benefit can rely on other parent making payment on time and in full.

The private collection plan does not need to be disclosed to DHS however, it is best to ensure the agreement between the parents is in writing and signed. There are ways that this private agreement can be formalised through family lawyers, discussed below under the heading Limited and Binding Child Support Agreement.

Under this option, the method and time in which Child Support is paid between the parents is based on the agreement reached between the parents but it is important to note the parents are not legally bound to comply with that private (informal) agreement. This option can often lead to disputes between parents.

A Binding Child Support Agreement is a legal agreement between parents that sets out the amount and method of child support payments. The key feature of a Binding Child Support Agreement is that it is a legally enforceable agreement, which means that the terms of the agreement bind the parents.

Pros of a Binding Child Support Agreement:

Flexibility: A Binding Child Support Agreement allows parents to negotiate and agree on the amount and frequency of child support payments that suits their particular circumstances. This can provide more flexibility and control than the standard formula-based approach the DHS/Child Support Agency uses. Not only can you cover periodic (ongoing) costs weekly/monthly or yearly, but you also can insert how to meet other costs, such as specific medical or schooling-associated costs.

Certainty: With a Binding Child Support Agreement, the parties know exactly what the child support payments will be and when they will be made. This can provide greater certainty and security for both parents and children.

Avoids the DHS (Child Support Agency): By entering into a Binding Child Support Agreement, the parents can avoid dealing with the DHS, which can be time-consuming and complicated.

Cons of a Binding Child Support Agreement:

Can be difficult to change: Once a Binding Child Support Agreement is in place, it can be difficult to change. If circumstances change, such as a significant increase or decrease in income, it may be difficult to modify the agreement.

Legal costs: Creating a Binding Child Support Agreement can involve legal costs, which can be a barrier for some parents.

Lack of flexibility: While a Binding Child Support Agreement can provide more flexibility than the standard formula-based approach (noted above), it may not be as flexible as a private agreement between the parties.

It’s important to note that a Binding Child Support Agreement is a serious legal commitment and should only be entered into after careful consideration and legal advice.

If a parent doesn’t pay their child support, several steps can be taken to recover the payments.

Here are the steps that can be taken.

1.         Contact the Department of Human Services/ Child Support Agency: The first step is to contact the Department of Human Services (DHS), which collects and enforces child support payments. The DHS can investigate and take action to recover the child support owed. More information can be found here.

(i)         Provide evidence of non-payment: To assist the DHS in its investigation, it’s important to provide evidence of non-payment. This may include bank statements, invoices, and correspondence with the other parent.

Request enforcement action: The DHS has a range of enforcement actions available to recover child support payments. DHS may recover overdue Child Support payments from the paying parent through some or all of the following:

(A)       income support payment deductions

deducting from tax refunds

(B)       working with third parties

employer or bank account deductions

(C)       issuing overseas travel bans (known as a travel prohibition order)

2.         Private enforcement: If the DHS is unable to recover the child support owed, legal action may be able to be taken against the parent who has not paid. This may involve private lawyers and going to court to seek a court order from the family court to enforce payment.

Here are the key steps involved in a family court application to enforce child support:

Initiate the application: The first step is to initiate the application by filing an application with the Federal Circuit and Family Court of Australia. This involves completing the appropriate forms and paying a filing fee, which may be found here.

Serve the other party: Once the application has been filed, it must be served on the other party. There are strict requirements for how to serve family law documents. You can learn more here.

Attend the court hearing or hearings: The court will schedule a hearing to consider the application. Both parties must attend the hearing/s and provide evidence to support their case. The court will consider the evidence and decide on whether to enforce the outstanding child support.

Enforcement orders: If the court finds that the child support has not been complied with, it can make an enforcement order. This may include ordering the payment of the outstanding child support and imposing penalties and interest charges on any outstanding amount. The court may also order the seizure or sale of assets.

Compliance with the order: Once the enforcement order has been made, it’s important for the parties to comply with the order. Further legal action may be necessary if the parent who owes child support fails to comply with the order.

It’s important to note that a family court application to enforce child support can be a complex and time-consuming. It’s advisable to seek legal advice and assistance to ensure the best possible outcome.

Failing to pay child support is a serious legal matter, and can result in significant penalties and consequences, such as interest charges, legal fees, and even imprisonment in some cases. If you’re not receiving the child support payments you’re owed, it’s important to take action promptly to recover the payments.