Unless you are a Family Lawyer you probably don’t know that child support, child maintenance and spousal maintenance are all completely different types of rights and obligations. They are all governed by different legal principles and practices.
In this article we focus on child support. In that regard if someone has the care of a child, then that person is generally entitled to receive child support payments for the child. It is paid by the parents of a child and is not a government pension, allowance or benefit.
To explain briefly the differences in these terms:
- Child support covers all children under the age of 18 years of age;
- Child maintenance is limited to the support of children over the age of 18 years of age (adult children) for educational and medical expenses; and
- Spousal maintenance is the recognition in marriage or de facto relationships of the mutual obligations of both parties to maintain each other.
The Child Support Agency
Under the Child Support (Assessment) Act, the primary carer of the child or children can make a claim for child support from the other parent. The Department of Human Services (DHS) administers Australia’s Child Support Scheme and works with separated parents to manage their child support responsibilities for the benefit of their children.
The Child Support Agency (CSA) is responsible for administering child support arrangements and assessing the amount of support which should be provided. The decision is based on each parent’s income, the number of children and their living arrangements.
Who should pay Child Support?
It is a key pillar of family law that parents share in the financial costs of caring for their children. That duty is not affected by the obligation of any other person to maintain the child or by any entitlements of any other person to an income tested pension, allowance or benefit.
The Process and Calculation considerations
To obtain child support, a parent or carer applies to the CSA to make an administrative assessment of the child support payable by the parents of the child.
In calculating the child support payable the CSA takes into account a number of factors including:
- The costs of children in various age ranges;
- The capacity of the parents to meet those costs;
- The income of the parents; and
- The time that each of the parents spend with the child.
There are a range of factors therefore that go into calculating the amount of child support that is payable in each case. In doing this the CSA in fact uses a relatively complicated mathematical formula to calculate the child support payable in each particular case.
Consequences if child support is not paid
If child support is not paid, DHS has the power to collect overdue amounts in a number of ways, including automatic deductions from the paying parent’s pay or income support payment or working with banks to deduct money from a paying parent’s bank account.
If someone is in arrears with their child support payments, they should contact DHS and try to make an arrangement to repay them. They may accept an amount on top of what they are already paying to clear the arrears over an extended period of time. Naturally if the person’s circumstances change they should tell the DHS immediately.
Adult Children and Child Support
In the majority of situations the legal obligation to pay child support ends when a child turns 18 or finishes school (whichever is the later date). However, the reality of many “children” over 18 is that they are living at one parent’s home whilst they complete their university or technical studies.
A duty exists to support adult children that can require a parent to pay maintenance that is necessary to financially support a child over 18 who is completing his or her education.
Disabled children over 18 years of age
As with children without special needs, the legal obligation to pay child support usually ends when a child turns 18 or finishes school (again whichever is the later date). However, the costs of children with special needs can continue for many years after this time.
Here a duty to support a child over 18 that has a physical or mental disability can require a parent to pay maintenance that is necessary to financially support that disabled child. This obligation applies regardless of when the disability existed.
It is important to obtain advice from an expert family lawyer to ensure that the correct amount of child support is being paid and will be paid in the future.
Usually this involves providing your family lawyer with all the relevant information so that they can assess whether the administrative assessment of the CSA is correct.
If you know someone who is need of expert assistance or advice on how to proceed please call us on 02 6201 7243 or email us [email protected]