Separating from a partner can be a very difficult and painful process, both for yourselves and any children involved in the relationship. It can often be very hard for arguing parents to reach agreements in respect of the care and custody of their child or children. Australian law recognises this and provides a legislative framework to assist with determining parental obligations towards a child during and following divorce proceedings.
If you have found yourself in a situation where you disagree with a partner regarding custody, it’s important to familiarise yourself with the child support assessment process as well as the review process if you feel that the decision isn’t in the best interests of the child. This article will step you through the legislative framework surrounding child support assessments and the review and appeals process.
The Legislative Framework
There are two important things you should know when it comes to the legislative framework for child support assessments. The Child Support (Assessment) Act 1989 (Cth) (the “Act”), which is the legislative basis for the child support assessment scheme, and the government agency that administers the legislation (the Child Support Agency (“CSA”)). The Act sets out various areas and aspects of both parents’ situations that can be taken into account during the child support assessment, including a set formula that can help determine likely outcomes.
Child Support Payment Options
Although the Act provides for a child support assessment scheme, if both parties agree on how child support payments should be divided, the Act need not apply. Both parents can agree to sign a Binding Child Support Agreement, once they have each received independent legal advice. If parties sign a binding child support agreement, it is important to ensure that you are clear as to your rights and obligations to the child, and to the other party, including how your parental responsibilities may impact your payments. While it is ideal that both parents agree, this is often not the case. If there is no Binding Child Support Agreement and both parents would like to determine the best option for financial support, a child support assessment application can be made to the CSA.
The Child Support Assessment
The CSA takes into consideration factors relating to the care arrangements of the child and the financial position of each parent in determining a balanced and fair assessment for child support. This includes the consideration of income from employment or assets, the percentage of care of each of the parents, and the possible cost of raising the children (i.e. how many children in the family and their age).
The CSA’s formula for assessing child support is available online so if both parents can reach an agreement, they can use this formula as a resource to determine the best arrangement for their child. If the CSA has received an application, they will determine the assessment on the parents’ behalf and will send an assessment notice.
The Review Process
One or both parents may not consider the Child Support Assessment Scheme the best option. If this is the case, the CSA has a review process in place which allows you to request for a “departure determination” from the original CSA decision. The review process can be summarised accordingly:
- A departure determination can be applied for at the CSA. Effectively, this is an internal review application to request to vary a child support assessment.
- There is no limit to the number of departure determinations that can be applied for at the CSA, so long as there are new facts that will come into consideration. This is useful, for example, where a party’s financial situation may have changed.
- If a party is not satisfied with an internal review within the CSA, the party has two options. The first option is to lodge an application to the Social Security Appeals Tribunal. If this option is used, the party is unable to appeal to the Family Court or the Federal Magistrates Court unless the appeal is based on the Social Security Appeals Tribunal’s error in law. The second option is to go straight to the Family Court or the Federal Magistrates Court. This is only allowed under “special circumstances”. The Act does not include a definition of “special circumstances”, but a “special circumstance” may be because the assessment was “unfair”.
A party who is not satisfied with the CSA’s Child Support Assessment will usually need to have the decision reviewed internally. It is only under specific circumstances that a party can go directly to court without the first internal review.
This is an overview of child support assessments and the review process. Every review of a decision needs to consider the merits of the application. If you’d like to speak to a family lawyer about the child support assessment legislation or appeals process, get in touch on 1300 544 755.