Child support basics: What is it & what are my options?

What is child support?

Child support is a payment made by one or both parents to the other to assist in the cost of looking after children until they reach the age of 18 or complete high school.

The Department of Human Services (DHS) utilises a formula to calculate how much child support you should pay or receive.  This is worked out based on:

–        How many children you each have;

–        How old the children are;

–        How much money you need to support yourself;

–        The income of the parents; and

–        The percentage of care each parent has for the children.

The cost of the child is based on the research about how much parents spend to raise a child in Australia.  These figures are updated each year to ensure they stay current. These amounts are also different for different people as the research has established that people that earn different incomes spend different amounts on their children.

This is a complex formula that leads to much confusion.  The DHS has provided a child support estimator online to assist parents with this process.

How is child support paid?

You can choose to manage the payment of child support between yourselves.  This does not involve the DHS at all.  Parents who choose this option decide how much and how often child support is paid.  This can affect your Family Tax Benefit if you receive any.  This can also be risky as the DHS cannot enforce payment of an amount you have agreed to with the other parent.

The next option is private collection. To do this, you can ask the DHS to undertake an assessment for you. This can also be utilised if you have registered a child support agreement with DHS.  This calculates the amount of child support that one parent needs to pay the other.  A private collection arrangement would mean you and the other parent decide when and how this is paid.

The DHS would not become involved in this type of arrangement unless you asked them to be.  If a parent falls behind in their payments, the agency can collect up to three months of arrears or nine months in extreme circumstances.  This system works well for parents who are amicable.

If parents are unable to communicate, if there are issues with reliability in payment or if there are domestic violence issues, you can ask the DHS to collect on your behalf.  This is called Child Support Collect.  DHS can collect if a child support assessment has been made, if they have accepted a child support agreement or if there is a registered court order for child support.

For Child Support Collect, DHS collects the money from the paying parent and pays it to the receiving parent.  The dates of these payments are set by DHS.  If a parent fails to make payments, the DHS can take enforcement action including deducting money from a paying parent’s pay, intercepting tax returns and/or bank account deductions.

It is important that both parents continue to update the DHS regarding their circumstances to ensure that over or under payments are avoided and issues of debt recovery do not occur.

What if I want something specific in place for child support between the other parent and I?

You can enter into a private child support agreement with the other parent and this can be made binding and enforceable.

You may agree to cash payments, non-cash items such as health insurance or school fees, or a combination of these.  These arrangements can be formalised by a Limited Child Support Agreement, which can have a limited life span, or a Binding Child Support Agreement which can remain in place for longer.  Both parties need to have legal advice for a Binding Child Support Agreement.

If you would like to consider one of these options, we can provide you with the necessary advice.  Many people negotiate property settlement, spousal maintenance and/or child support agreements at the same time.

Here are some examples of how a simultaneous settlement could work:

  • The child support recipient parent agreeing to take less property from property settlement if all expenses are paid for the children until they turn 18 or finish high school, such as private health fees and associated costs and all health related costs.
  • The child support recipient parent agreeing to take more property from property settlement than they might otherwise be entitled to, on the basis that they be paid no or relatively low child support in the future.
  • The child support recipient parent agreeing to a settlement where they are paid certain child support (periodic amounts every week plus school fees and health costs paid for by the other parent), certain periodic spousal maintenance payments for a period of time and an agreed percentage of property.

The above arrangements can be negotiated and, once agreement is reached, drafted into binding and enforceable agreements by Daykin Family Law.

What if we do not agree with how much child support is being paid?

Parents often disagree with the estimation for child support.  This can be as a result of not agreeing about the arrangements for time children spend with each parent or disputes about income.  You can apply to DHS to have the assessment changed.  If you still do not agree with the decision, there are other avenues you can take, and we suggest you seek legal advice from us about these issues.

I have a plan for what child support I would like for my children. What’s my first step?

The first step is to make an appointment for an initial consultation with us to discuss your options, your proposals and how your goals can be achieved in the most cost effective and amicable way.   Daykin Family Law are experts in the Brisbane family law field and can assist you to resolve your issues so you can move on with your life sooner. Contact us today to discuss your situation and the options that can be specifically tailored for you.

divorce and separation daykin family law

Clearing away the looming clouds of uncertainty: Finalising your past to secure your future

When a couple separates, it can be all too tempting to just make a quick and informal agreement about property to move forward as early as possible, away from the anguish surrounding the relationship breakdown.

What many people don’t know is that informal agreements dividing assets are not necessarily enforceable.  When there is no enforceable agreement recording how property is to be dealt with at the end of a marriage or de facto relationship, the door remains wide open for the other person to have “another bite at the cherry”.  That means that either party to the broken-down marriage or de facto relationship can make an application to the Court for property orders in the absence of court orders or a binding financial agreement.

It can be particularly risky or complicated in circumstances where one person moves onwards and upwards, continues to accrue assets or grow their own property after separation, or even mixes their finances with a new partner.  This is because all property is included in the “pool” available for adjustment as at the time of trial or agreement.  Whilst you may be able to argue you should keep all or the lion’s share of a particular asset due to your contributions to it after separation, there is no hard and fast rule and your assets may well be vulnerable.  Many factors will be taken into account by the Court, however post-separation earnings and accrued assets are not necessarily safe from the reach of the other person.

Married people have up until 12 months after a divorce order takes effect to make an application to the Court for property settlement and/or spousal maintenance.  The time limit for people to file an application for property settlement or maintenance after a de facto relationship ends is 2 years after the date of separation.  Even after these time limits, an application can be made to Court on certain grounds to proceed with an application even when it is out of time.

Finality with financial affairs after separation is important to allow you to make decisions with certainty that will benefit you and those you care about moving forward.  Recording a binding and enforceable property settlement can assist with this finality, to ensure that what you keep remains yours and you are free from any claim for property in the future.  There are a couple of ways to record an agreement, with the most cost effective often being an application for consent orders through the Court.  Neither party will need to attend Court as the application is considered in-house, unless the Court considers the agreement reached is unjust or inequitable to one party.

There are also ways to limit your spouse from making an application against you in the future for spouse maintenance, with the same options applying to de facto couples after separation.

We have helped many clients record their property settlement agreements cost effectively and efficiently.  Usually, we can draft all of the documents you need within a matter of days if we have all of the relevant information and an agreement has been reached.  Contact us today to discuss how we can help you move forward with finality.

First published 24 August 2017

Mapping your path after separation

Whether it has been your decision or the decision made by your partner, the road stretches out at the time of separation and forks off in several directions.

Emotions can run at an all-time high and this can sometimes cloud those first crucial decisions that are made.  In more severe cases, people make decisions which can have a long-term impact on their children, their ex, their broader family and how their lives will unfold from there.  Decisions where there were better alternatives, and negative outcomes that could have been avoided.  That’s where family lawyers can do their best work, preventing potential disasters.

Engaging a good family lawyer at the time of separation can save you a lot of time, expense and pain later by accessing advice you can rely on from day one that sets you up for success.  A person’s separation can involve many elements, such as parenting, child support, spousal maintenance, property settlement and domestic violence.  There might be more urgent issues that need to be dealt with right away, with others that can be left to a later time once some of the dust has settled.  Us family lawyers give advice based not only on legislation and rules, but our experience in the courts knowing how Judges and Magistrates are likely to view the things that people do and do not do when they separate, and how a particular issue might be dealt with.

With this knowledge and experience, the first meeting with your family lawyer should cover how to:

·         minimise conflict

·         promote your children’s best interests

·         protect your assets

·         preserve your rights

·         ensure that you can provide for yourself and/or your children

·         avoid joining the many, many people queued in the court system waiting for decisions to be made about their property and family

·         save costs

Armed with this advice and information, you can make solid decisions on which path to take.  Straight after separation, many people do not need anything drastic to change.  There are certain steps to follow to work through a property settlement and/or an agreed parenting arrangement.  While those occur, agreements can be reached along the way to keep joint expenses paid such as the mortgage, utilities, school fees and those related to the running of the home.  Ideally, the exchange of documents can take place relatively early so that offers can be made and a binding agreement drawn up once consent is reached.

Some matters though can escalate quickly, landing people in court with legal costs increasing sharply.  In many cases, there are alternatives to instituting court proceedings.  This can involve raising any urgent or concerning issues as they arise, setting out a pathway to resolve those issues and following through to ensure those issues do not arise again.  This is where pragmatic advice is particularly useful.  Talking through the issues with you, how things might play out and how this might impact on you is an important part of what we do.  We call it reality testing and it is vital.

The involvement of a family lawyer is ideally only a brief part of your story.  We should not be the stars of your show.  You should be front and centre, making your own decisions and forging your new path.  Talk to us today about how we can help you find the right path to suit your circumstances and your family after separation.

First published 9 July 2017

binding financial agreements

How to stay above water with family law costs

There are far better things in life to put your hard earned money towards than unnecessarily high legal costs.  We have had too many clients who have been up the river and back with high legal fees that have gotten them virtually nowhere but disenchanted with the legal process and family law in general.

We pride ourselves on being the problem solvers.  We want to get you from A to B, with your dignity and finances in tact wherever possible.  At the very first meeting with your lawyer, you can and should discuss with them how you can keep your legal costs down.  With our clients, we talk about the end game at the start and the different options to get there to suit their budget and their needs.

Here are 5 top tips on how to keep your legal costs down:

1.       Reach agreement.. and do it early!

It’s no secret.  Protracted negotiations can be extremely costly, lead to entrenched positions and spin the parties into the already congested court system.

We will always explore with our clients avenues to reach an early settlement wherever possible and save costs.  This can take many forms, such as supporting you to negotiate yourself and make informed decisions negotiating around the kitchen table with your ex or at a mediation.  Another way is to fast track the exchange of necessary financial documents and make an early offer to settle.

You may be able to get more if you went to Court, but we encourage clients to think about the financial and emotional cost of not settling early.  Not just on you but your family as well.  It can be too easy sometimes to get stuck in old conflict patterns and dig your heels in. Our job is to give you independent advice, a trusted advisor who can step back, assess the situation frankly and guide you.

We encourage our clients to explore the benefits of an early, clean break.  If you can, get to a settlement fast. It will free you up to focus on your bright, new future.

2.       Be up front with your lawyer about what you want out of the process, what’s important to you

This one is best explained with an example. Let’s say you tell your lawyer from the outset you are happy to move to a shared care arrangement for the kids with the other parent. Negotiations ensue, legal costs are expended. Then, the client starts putting up road blocks all over the place. Wanting to take issue with the ex’s care of the kids, the new partner’s involvement, what the other parent puts in the kids’ lunchbox.. all things that are not new and have long been an issue.  After  lot more legal costs and a strained co-parenting relationship with lawyers lobbing letters back and forth, the conflict is increased further with only the lawyers benefitting.  No settlement is in sight.  Court looks like the only option.

A way to avoid this increase in legal costs and tensions is to tell your lawyer up front about your concerns, your fears and what the roadblocks might be to you signing off on an early agreement and making lawyer’s fees a thing of the past.  A big part of our job as lawyers is reality testing. Stepping through with you how certain issues, if handled certain ways, can play out and how they might increase tensions unnecessarily and put you further away from your goals.

This reality testing early on allows you to choose the path that best suits your purpose.  If your lawyer isn’t signposting your matter, letting you know how you can quickly move past issues to save costs and headaches, something may be wrong.  Be upfront with your lawyer at every step.  It will save you time and money.

3.       Assess your own skillset.  What stages of your matter can you do yourself, and what do you need assistance with?

Some people are comfortable in negotiating themselves.  If this is the case, we can tell you what documents to ask for, what documents to hand over.  Then we can help you formulate a strong offer and draw up the agreement.  This is the best way to keep costs down and we’ve had many happy clients tell us they have been pleased with how little the whole process has cost them.

When Court is inevitable, there are still options to keep costs down.  Not everyone is comfortable addressing a Judge in Court as a self-represented litigant.  Some people are, with a little help from their lawyer.  If Court is the only way to move your matter forward, you can save legal costs by getting your lawyer to assist you in drafting some succinct court documents that address all of the necessary legislative factors.  This will place you in better stead to run some steps of the matter yourself if you choose.

Many matters do not end in a trial. Litigants can be assisted by the preparation of expert reports in property and parenting matters, mediation and the exchange of disclosure.  Offers can be put forward at almost any time in the court process before the end of trial.  Your lawyer can help you craft a solid offer to end litigation and draft the consent orders.

4.       Give timely, considered instructions

When lawyers need instructions from clients, it should be for a purpose.  To get you closer to what you want.  Sitting on giving those instructions can increase costs unnecessarily, as issues can snowball which leads to even higher fees.

A lot of issues, which would have otherwise lead to a flaring up of the matter (and costs), can be nipped in the bud with timely instructions and a well crafted response to take the heat out of the situation.  If the lawyer on the other side is litigious, the other party might be getting advice that your lack of response and action can be construed as a disengagement from the process, leaving Court the only option.  This path will likely end up costing you much more, financially and emotionally.

If you are going to be away or hitting a busy time at work, tell your lawyer so they can get on the front foot so any lack of response cannot be unreasonably misconstrued.

Think through your instructions before you give them to your lawyer, and ask whatever you need to so you can make informed decisions.  Changing your mind later can increase costs and build conflict.

5.       Choose the right lawyer

It’s important that you trust your family lawyer and the advice they are giving.  If your lawyer is not giving you pragmatic advice and talking with you about how to navigate your matter with the least fees, you may want to reconsider your choice.  We often meet with people to discuss a change of strategy to finalise a matter quicker, or give a fresh perspective.

Our business is built on our reputation.  There is no greater compliment to us than our clients and former clients referring us their family members, friends, work colleagues, knowing they will be well looked after.  The family law community is relatively small.  We are not known for increasing our client’s legal spend unnecessarily or building conflict to generate fees.  Quite the opposite. Daykin Family Law has built its practice on giving pragmatic advice at every step with the client’s interest at the forefront, with options to keep costs down where possible and move to the end of the process efficiently.

Book an appointment with us today to start the conversation on how you can resolve your family law issues efficiently and cost effectively.

First published on 19 January 2017