As family lawyers, we often get asked about child support arrangements and what parties can do to ensure certainty after they have separated.
Whilst child support arrangements more often than not occur through an administrative assessment, parties also have the ability to enter into their own private arrangements which are then registered with Services Australia.
It is important to note that private child support agreements can only be made and registered in relation to a child or children where an assessment can be or has been made. If any other children are referenced in the agreement, the Registrar will not include those children.
The agreement can also only be entered into by the following people: –
- The parents of the child who are ordinarily eligible to make an application for assessment through the child support agency; or
- One or both parents and a carer who is not a parent but is otherwise eligible to make an application for assessment through the child support agency.
There are two types of child support agreements that exist outside of the usual child support assessment process, known as ‘binding child support agreements’ and ‘limited child support agreements’.
Binding child support agreements can make reference to agreements in relation to periodic payments which are the ordinary routine child support payments in addition to non-periodic payments which are the extra expenses such as school fees. There is no requirement for an administrative assessment to be in place prior to the agreement being entered into as the agreement essentially replaces any assessment in place. The agreement is binding on all parties regardless of a change in either parties income and can only be terminated as provided for in the relevant legislation or if the parties include specific clauses. In order for a binding child support agreement to be registered, it must be in writing and all parties are required to receive independent legal advice about the advantages and disadvantages of the said agreement.
A limited child support agreement on the other hand can only be in place for a maximum of three years. It can be extended in some circumstances, however, this does not happen often. The agreements provide certainty for the parents and provides more flexibility in that it can be terminated if there are unexpected events that occur such as unemployment of one of the parties.
These agreements do not require independent legal advice prior to entering into the agreement, however, they require a child support assessment to be in place. The agreement must also reflect the assessment, in that the amount agreed on is required to be equal or greater than the assessment. If it is lower, the agreement will not be accepted by the agency and it will revert back to the assessment in place.
Child support is a complex issue and requires skill and expertise in not only drafting but guiding parties to ensure that it is appropriate in their circumstances.
If you need advice regarding child support issues, contact our office to on (02) 4655 4224 to make an appointment and discuss with one of our experienced solicitors.
