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5 key things you should know about child support

If you have separated from your partner and have care of the children from that relationship, you are, in most circumstances, able to apply for financial assistance from the other parent to contribute to the costs of raising those children, in the form of child support obligations.

Child support stems from a fundamental principle that both parents have a responsibility to provide for their children. After separation, whether married or de facto, an agreement can be reached regarding the type and level of child support that is paid from one parent to the other to make sure that a child is supported financially by both parents.  Child support is an ongoing payment that is purely for the financial support of a child from that relationship.

The area of child custody can be fairly complex, particularly if parents cannot come to an amicable agreement or there are extenuating circumstances that require the intervention of the Court.  In our previous blog post, you can find out in more detail how to get child custody.   Today, we’ve summarised the key things we think you need to be aware of when considering your child support obligations.

 

How long the obligation lasts

In Australia, child support obligations continue until a child turns eighteen years of age, or to the conclusion of Year 12 if the child turns eighteen during that year of schooling.  However, in order for the obligation to continue to the end of Year 12 a specific application must be made.  In some circumstances, the Court can order for a parent to financially support an adult child of the relationship.

There are certain circumstances in which the obligation can be stopped early, for example:

  • If the child becomes self-sufficient
  • If the child marries or enters into a marriage-like (de facto) relationship
  • If the child is adopted
  • If the child dies

On the other hand, child support can also be extended in circumstances where, for example:

  • The child over 18 can’t support themselves because they are completing their secondary or tertiary education
  • The child over 18 has a mental or physical disability

This is called adult child maintenance. If you would like to receive child maintenance for your adult child, or you have been asked to pay adult child maintenance, you should get legal advice.

 

How to calculate child support

The procedure for paying and receiving child support is governed by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

The actual process of assessing the amount of child support can be quite complex, but in general terms it involves the use of an 8 step formula;

  1. work out each parent’s child support income
  2. work out the parents’ combined income
  3. work out each parent’s income percentage
  4. work out each parent’s percentage of care
  5. work out each parent’s cost percentage
  6. work out each parent’s child support percentage
  7. work out the costs of children
  8. work out the child support amount

In practical terms, the simplest way to work out your potential child support contribution or what you are likely to receive is to use the Department of Human Services Child Support Estimator. The estimator takes you through each step and provides a calculation based on your individual circumstances.

 

How to pay or receive child support

There are various ways in which you can organise and manage your child support payments.  This will depend on your individual circumstances as well as how able you are to communicate with your ex-partner.

Child support can be paid:

  • Through the Child Support Agency periodically
  • Privately following an assessment
  • Directly between the parents (self-managed)

If you and the other parent are not able to communicate effectively, it may be advisable to organise your child support payments though the Child Support Agency by opting for the ‘Child Support Collect’ method.

You are able to change to another arrangement at a later date if you find you need to, however the parent receiving the child support must agree to the change in payment method.

If either the payer or payee are living abroad, child support payments may still apply.  If this is the case, you should seek legal advice.

 

How to document your child support agreement

If you are able to reach an agreement about the collection of child support privately or through mediation, it is crucial to document the agreement to have a written record of each parent’s obligations.

There are 2 types of agreements: limited and binding.  We explain them briefly as follows.

  • Limited child support agreements can be accepted if there is a child support assessment in place and the annual rate payable under the agreement is equal to, or more than, the annual rate of child support payable under the child support assessment. It is not essential to obtain legal advice for the agreement, however it is advisable to ensure that your interests are protected.
  • Binding child support agreements can be made and accepted even if a child support assessment has not been made. The agreement can be made for any amount that all parties agree to, for periodic, non-periodic or even lump sum child support payments. Each party must obtain independent legal advice before entering into the agreement to be aware of the advantages and disadvantages of entering into such an agreement, among other things. A certificate signed by your lawyer will be attached to the agreement.

 

What happens if your child support matter goes to Court

There are limited circumstances where child support arrangements go to Court.  Most child support disputes are handled outside of the Court.  However, some examples where a case may go to court are:

  • where the paternity of the child is in dispute;
  • if you have property or parenting proceedings underway and you need to dispute an assessment which does not take into account a parent’s proper circumstances;
  • if you are in proceedings for property or parenting matters and you want to halt any assessment process pending the outcome;
  • to set aside or vary a child support agreement where the other parent won’t agree to stop or change the arrangements set out in the agreement.

Compiling the correct documentation, serving other parties and the ensuing evidence gathering and subsequent hearing can be complex.  It is vital in these circumstances that you seek independent legal advice from a family law specialist.

Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody.  Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended). Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.

We will give you expert legal advice on the most appropriate and cost effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment today.

Child custody mediation

What is child custody mediation and how do I prepare?

Questions around the process of mediation are often asked by our clients.  We all know that going through a divorce is tough – for you, your ex-partner, for the children and wider family.  When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.

 

In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) suggests first and foremost that couples do not use the Courts where possible and instead engage in mediation prior to escalating to the Court.  Even where a parenting orders application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences prior to having the Court intervene.

Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have.  If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing.  However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances and education.

When parents can’t agree, that’s where a mediator comes in.  Your family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner.  The goal of mediation is to come to an agreement approved on both sides that can by turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.

Mediators are not there to make judgements or take sides.  They are engaged to essentially chair a meeting between both parties, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which is in their children’s best interests.

 

How do I go about getting a mediator?

 

There are a number of options for mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new Parenting Plan.  Legal representatives are not permitted in that process however.

Private mediation services also exist, usually at a higher cost. Your family law can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.

Going to Court is not usually a preferable course of action and is usually an expensive one.  Mediation gives you the opportunity to come to an acceptable resolution swiftly and in a cost-effective way.

 

When isn’t mediation appropriate?

 

Sometimes, mediation isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected.  If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.

 

Should I seek legal advice before going into child custody mediation?

 

The most effective mediation happens when both parties have sought legal advice about their individual circumstance beforehand.  You are much more likely to be prepared, to understand the probable outcomes, your options and how a Court might deal with your matter.  By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.

Your lawyer can come to mediation sessions and advise you as the session progresses.  Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.

 

How to approach mediation

 

Preparation is key to effective mediation.  With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement.  Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them.  Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.

Mediation isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and guidance of the mediator, you are much more likely to reach a settlement that works for both of you.

 

What can be resolved in mediation?

 

The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education and religion, how time will be split between parents and how school holidays will be spent, overseas travel and the division of payments for things like after-school activities.

 

What is the process of mediation?

 

When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation.  If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.

Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what you hope to achieve from mediation.

Each mediation session can run for a shorter period, such as around three hours, or even a full day.  In some cases, it can take a number of sessions to resolve some of the more significant issues.  This is obviously expedited if both parties come prepared and willing to compromise.

If no agreement can be reached in mediation, then a certificate will be issued by the mediator.  Either parent can then file for parenting proceedings in the Court.  Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend or for another relevant reason.

 

I am considering child custody mediation, what should my next steps be?

 

Where possible, it would be prudent to speak to a family lawyer that can help you to understand your options prior to appointing a mediator.  Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and work closely with psychologists, social workers and mediators to help you and your family stay out of Court wherever possible.  We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.

At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible.  Shannon Daykin is an experienced Family and Divorce Lawyer.  An Accredited Family Law Specialist, Shannon was recently named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019.  In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.