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thumb child support brisbaneCan I apply for child support?

Any person that is responsible for a child’s care can apply to the Child Support Agency for a child support assessment by directly contacting the Child Support Agency.

However, for an application to be successful, the child must be an Australian citizen or present in Australia and a presumption of paternity must apply. A presumption of paternity, in short means that a man is “presumed to be” a child’s biological father.

How can a presumption of paternity be concluded?

A presumption of paternity can be concluded if:

  1. a party is listed as a parent of the child on the child’s birth certificate;
  2. at the time of the child’s birth the parties were married and not divorced;
  3. between 44 to 20 weeks prior to the birth of the child the parties were living together;
  4. a party adopted a child;
  5. a party signed a statutory declaration that they are a parent of the child;
  6. the child was born using a surrogate;
  7. the child was conceived by the parties using artificial means; or
  8. a court has made an order declaring the parentage of a child.

How is the amount of child support payable calculated?

The amount of child support payable by a parent is a complex calculation completed by the Child Support Agency and varies depending upon:

  • the care arrangements for a child, including the amount of overnights the child spends with each parent;
  • the before-tax income of each parent;
  • the child’s age;
  • other needs or circumstances.

The Child Support Agency has a useful online tool to assist you to estimate the amount of child support that may be payable. The calculator can be located via www.processing.csa.gov.au.

What if the calculated amount of child support payable is unreasonable?

Should you or the other parent be assessed to be child support at an amount that you consider unreasonable, a change of assessment may be able to be sought through the Child Support Agency internal review system. The Change of Assessment Form is available by the Child Support Agency website.

For a change of assessment to be considered, at least one of the following must be demonstrated:

  1. The significant costs borne by you to spend time or communicate with the child significantly reduces your ability to pay child support

    Costs such as travel, accommodation and phone calls will be included but such costs must equate to more than 5% of your income. If, however, you spend more than 52 nights per year with the child, you will only be permitted costs of travel. Costs such as entertainment food or clothing are not included. Receipts evidencing expenditure will be required.
  1. The child’s special needs significantly affect the costs of maintaining the child;

    When a child suffers from a medical condition, the out of pocket expenses after payment of the rebate can be claimed. However, you will need to evidence the child’s medical condition by receipts, reports or other information that demonstrates the child’s condition and required treatment.
  1. The child’s care, education or training intended by both parties significantly affects the costs of maintaining the child;

    If it was the agreement of the parents prior to separation that the child be privately educated, you will need to demonstrate evidence of that intention. Invoices or estimates of the schooling fees will be required.
  1. The child’s income, earning capacity, property or financial resources renders the concluded assessment unfair;
    Should a child be working or receiving income from a trust structure, the amount of child support payable could be reduced. It is unlikely, however, that a child employed casually would impact upon a parent’s assessed child support payable.
  1. Money paid by you to the child, the other parent or another for the child’s benefit renders the concluded assessment unfair;

    This scenario arises when a parent pays lump sums of money to the other parent for or on behalf of the child. Such situations include property settlements, trust structures, schooling or extracurricular activities. To be successful, it must be evidenced by receipts and that the monies were paid for the purposes of child support.
  1. The child is under 12 years of age and their childcare costs significantly affect the costs of caring for them;

    The costs of child care must exceed 5% of your income. The out of pocket expenses can be claimed once the rebate has been claimed but receipts will be required to be produced.
  1. Your ability to care for the child is significantly affected by your necessary expenses;

    The expenses must be necessary and exceed the normal range of expenses. Your expenses cannot be optional. You will need to evidence your income and expenses through receipts. You will also need to demonstrate that you are impacted upon by the additional expenses.
  1. The other party’s income, earning capacity, property or financial resources renders the concluded assessment unfair;

    If it can be demonstrated that a parent has not properly declared income or their true financial position, the child support payable by a parent can be reassessed. Evidence of the party’s income, qualifications, trusts, business or other income will need to be provided for the reassessment.
  1. Your legal duty to maintain another person or child significantly impacts upon your capacity to support the child;

    If you have a legal obligation to care for biological children, stepchildren or a former spouse, the amount of child support payable could be reassessed. Evidence of the legal obligation will need to be produced, in addition to receipts and documents demonstrating why the person cannot maintain themselves.
  1. Your capacity to financially support your child is significantly reduced by your responsibility to care for a resident child.

    To be successful in this claim, you would need to demonstrate the following:
  1. That you have a child ordinarily living with you that is not your biological child;
  2. You have been living with the biological parent of the child for more than 2 years;
  3. The child is under the age of 18 years;
  4. The child is not in a de-facto relationship; and
  5. That one of the following applies to either of the child’s biological parents:
    1. A parent is deceased;
    2. A parent has ill health that renders them unable to support the child;
    3. A parent has caring responsibilities that renders them unable to support the child;
    4. The child requires financial help.

To support your claim, you will need to provide evidence of the child’s situation and need for financial help.

What happens after I submit a Change of Assessment Form?

A senior case review officer will review the Change of Assessment Form and will decide in respect of your application. A senior case review officer has broad powers to make determinations including:

  1. Changes to the amount of child support payable, including increasing or decreasing the child support payable;
  2. For the purposes of child support assessments, determine the amount of time each parent is spending with the child;
  3. Allocate an amount to each parent’s income (this amount can differ to the amount actually received by a parent); and
  4. Backdate child support payments.

What can I do if I disagree with the decision following the Change of Assessment application?

A change of assessment can be appealed within 28 days of the decision being upon notification being made to the child support registrar of your objection. Failure to notify of your objection within this timeframe can result in a refusal of the register to consider your objection.

Your notice of objection must address the reasons why you consider the decision to be incorrect and should be supported with further evidence. A failure to produce sufficient evidence could result in the registrar rejecting your objection.

What can I do if my objection is rejected by the registrar?

You can apply to the Administrative Appeals Tribunal – Child Support division (“AAT”) for a review of your matter.

As it is a tribunal, the AAT is less formal than a court, but its decisions are binding. The AAT website has further information about tribunal proceedings.

The Child Support Agency has further details available on its website www.humanservices.gov.au, however, our firm has solicitors available to assist you to prepare your change of assessment. Our solicitors can also assist you to appeal a child support decision.

Are there different types of child support agreements?

There are three types of child support agreements available to parents if they agree to terms of support payable, being:

  1. Limited Child Support Agreement;
  2. Binding Child Support Agreement; and
  3. Terminating Child Support Agreement.

These agreements are explained in further detail below.

 

Limited Child Support Agreement

This agreement is used by parents to formalise the amount of child support that a parent is to pay to the other.

Both parties do not need legal representation to formalise a Limited Child Support Agreement, but the following must occur:

  1. An application for an assessment of child support must have been submitted and accepted by the Child Support Agency;
  2. The agreement must provide for child support payments that are equal to or greater than the Child Support Agency’s assessed amount payable by a parent.

The Child Support Agency will reassess the amount of child support payable as follows:

  1. Every three years;
  2. A change to a party’s income that is greater than 15%; or
  3. Upon a further Child Support Agency assessment being requested by a party.

A Limited Child Support Agreement will end when:

  1. It is agreed between the parties to end the agreement;
  2. after 3 years, upon the giving of written notice to the other party;
  3. the Child Support Agency Assessment varies by greater than 15% and a party choose to end the agreement;
  4. a court sets aside the agreement; or
  5. a new agreement is entered by the parties.

Binding Child Support Agreement.

A Binding Child Support Agreement can be helpful to parties in providing clarity and finality in respect of child support matters, with the agreement providing for the following:

  1. the amount of child support to be paid by a parent to the other;
  2. for the purposes of calculating child support, the amount of nights that a child spends with each parent;
  3. the terms for the payment of child support;
  4. the terms of the calculation of child support.

For a Binding Financial Agreement to be enforceable, both parties must be legally represented and following independent legal advice being given, both parties solicitors must sign a statement confirming that advices have been given. It is pertinent to note that a Child Support Assessment is not required for a Binding Financial Agreement. The amount of child support payable can also be less than the amount assessed by the Child Support Agency. The agreement will remain in place and enforceable until a “terminating” event arises or upon a court setting aside the agreement.

A “terminating” event can arise when:

  1. the parties enter into a new Binding Child Support Agreement;
  2. the parties terminate the agreement by entering into a termination agreement;
  3. the child finalises their schooling or turns 18 (whichever is the later);
  4. at a specified date contained within the agreement.

A court can set aside a Binding Child Support Agreement if it finds that the agreement was entered by a party under duress, misrepresentation or fraud.

If you are contemplating entering a Binding Child Support Agreement, Forge Legal’s Family Law division have decades of experience representing clients in all facets pertaining to Child Support matters. Don’t hesitate, our firm’s solicitors are able to provide detailed advice for you and your child.