Parents who fail to pay child support will be banned from overseas travel until the total amount is paid under a federal government crackdown to recover over $160 million in debt. Attwood Marshall Lawyers Family Law Senior Associate Hayley Condon discusses the latest change to child support requirements and parenting disputes in general.
Throughout Australia, hundreds of thousands of parents owe more than $1.5 billion in child support payments.
Statistics recently released by Human Services Minister Michael Keenan show that 228,760 parents have raised $1,606,217,985.02 in child support debts.
New South Wales and Queensland have accumulated the most unpaid debts with $370 million and $364 million owed, respectively.
The Federal Government has now initiated a crackdown on parents who avoid making child support payments, with 1,067 Departure Prohibition Orders (DPO), or travel bans, being issued around the country in the first half of this financial year.
More than 18,000 dads and mums who have failed to pay child support will be banned from leaving Australia as the Federal Government strengthens laws to recover more than $160 million in outstanding debts.
A loophole allowing parents to avoid paying their debts once their child turns 18 will also be closed, with authorities now granted the power to dock someone’s pay until the total amount is recovered, even after the child has turned 18.
For the parents who have been overpaid child support but held off lodging a tax return to avoid paying back the other parent, they will also be in the sights of authorities, with the government set to invest $7.8 million towards strengthening child support compliance activities.
While Services Australia could previously ban parents from overseas travel if they had not paid child support, the existing laws meant people could still leave the country if they had made a partial payment.
The legislation changes will strengthen the Departure Prohibition Order system to allow the department to refuse travel until the entire debt is paid.
The measures are expected to recover almost 10 per cent of the total child support debt pool of $1.69 billion, which has been growing since 1988.
Families and Social Services Minister Anne Ruston said parents were previously able to obtain a Departure Authorisation Certificate if they provided a down payment on their debt.
The new measures, timed with the opening of international borders, would enable the department to refuse to issue the exemption if there was reason to believe the parent would fail to pay the remainder of the debt when they returned to Australia.
The changes are expected to impact about 18,250 parents, including 3,500 parents who had received an overpayment.
Some of the extreme measures that have been taken recently to recover child support debt include the Australian Federal Police (AFP) stopping a parent attempting to board a plane in November 2021 before securing the $16,000 owed in unpaid child support.
In a similar case in October 2021, the AFP again intercepted a parent while leaving Australia with the frequent traveller finally paying $180,000 in child support arrears.
Some child support cases have dragged on for years. In one case, a parent accumulated a debt of $70,000 over 15 years before the department stepped up their contact to recover the debt led to the unpaid amount eventually being settled via a loan in February 2020.
Another $90,000 debt, which was a portion of the total $127,000 debt in unpaid child support, was collected from a parent after the department took legal action, with the amount offered up in mediation in October 2021.
These changes are expected to be introduced into parliament during the winter session and will come into effect from October 1, 2022.
Child support or child maintenance is a continuous periodic payment made by a parent for the financial welfare of their child.
Usually, this is for children under 18 years, although, there are circumstances in which support can be paid for the financial welfare of a child who is over the age of 18.
Most child support cases in Australia are handled by Services Australia under the Child Support (Assessment) Act 1989 (Cth) (CS(A) Act). Although, there are some cases where the CS(A) Act is not applicable. In those occurrences, a party pursuing child support must apply for a child maintenance order under the Family Law Act 1975 (Cth) (Family Law Act).
Services Australia will make an administrative assessment and determine the sum of child support payable for children once they have received an application from either parent or child carer. Usually, the payee would apply for a child support assessment upon separation. A recipient of Centrelink payments for children must pursue child support, unless they meet the criteria for an exemption. Application forms can be accessed on the Services Australia website.
In some circumstances Services Australia will change the assessment on application from the payer or payee.
Section 24 of the (CS(A) Act) outlines the circumstances in which the Act will cover children. When Services Australia cannot assess child support, it can still be possible to obtain a court order for child maintenance.
Services Australia is not permitted to assess child support in circumstances where:
- the liable parent resides outside Australia in a country that does not reciprocate jurisdiction
- children are over 18 years of age and are dependent on their parents (e.g. full-time students or those with disabilities) although, maintenance may be pursued under s 66L of the Family Law Act
- maintenance is pursued by a step-parent, however, maintenance may be pursued under ss 66M-66N of the Family Law Act in restricted circumstances.
Liability to pay child support or maintenance
Parents have a foremost duty to support their children. This duty has prominence over every other commitment excluding the commitment to support themselves and any other child they have a legal responsibility to support. All children are treated equally.
To be eligible for a child support assessment under the CS(A) Act (s 29A) a parent must be an Australian resident or resident of a reciprocating jurisdiction. A list of reciprocating jurisdictions is located in sch 2 of the Child Support (Registration and Collection) Regulations 2018 (Cth).
If there is contention as to whether a person is a biological parent of the child, either party is eligible to make an application to the court to permit DNA testing to resolve the discourse (ss 69V – 69ZD Family Law Act). Once parentage is established, the court or Services Australia – Child Support will assess the sum of child support/maintenance the liable parent is required to pay.
A step-parent does not have an obligation to maintain a child of their spouse unless a court otherwise makes an order for this (ss 66D and 66M Family Law Act). This means only a court can order a stepparent to pay child support, and Services Australia cannot. Unlike a biological parent’s duty, however, the stepparent’s responsibility to support a child is subsidiary to the duty of the child’s biological parents. It is uncommon for a court to make an order for a stepparent to pay child support, however in the rare cases where this applies, the court will consider the duration of the relationship between the stepparent and the child to see if it is appropriate to make the step-parent liable for the child’s financial support.
In some cases, parents can be obligated to pay child support to non-parent carers.
Same-sex couples who have separated can also apply for child support for any children from their relationship.
Support for children under 18
As part of a parent’s responsibility to maintain their child, they must finance their child’s expenses including food, housing, clothing, activities, and education. These are the expenses that family law courts and the government consider to be reasonably required so that a child or children can realise their full potential and advance in their life.
Child support can be arranged between parents directly. However, it is recommended that any support arrangements that are put in place be formalised through the Child Support Agency (‘CSA’) or by entering into a child support agreement.
The CSA employs a formula that mathematically calculates the amount a parent should pay. Factors the CSA consider in their evaluation include:
- How many children are involved, and their age;
- The parents’ income; and
- The number of nights the child or children are cared for by each parent.
A CSA assessment will generally change as income changes year to year.
These assessments are strongly regulated, so for those who try to “beat” the system by intentionally minimising their taxable income on tax returns, or trying other creative tactics, child support officers will target this type of behaviour and will have alternative methods of assessment to determine a fair and correct amount of child support.
After a CSA assessment has been made, the parents either pay the amount due directly to the other parent, or the CSA can collect the payments on the child’s behalf. If payment is made directly between the parents, keeping detailed records of the payments made is always recommended in case a dispute arises in the future.
If you feel you are paying excessive child support or an assessment is unfair or inaccurate in any way, there are situations when you can apply for a CSA assessment to be altered. For example, an alteration might be reasonable if you are solely responsible for paying for your child’s private school, unique needs, or special talents. Another example is when the child has an abnormal earning capacity, such that they generate their own income.
Binding child support agreements
If you prefer not to use the CSA assessment, you can enter into a child support agreement. There are two types limited child support agreements and binding child support agreements. These are private agreements between both parents that outlines the payments to be made.
Child support agreements can give parents greater autonomy over the terms of their agreement for payment of child support, ensuring those terms suit all parties.
There is a key difference between a binding child support agreement and a limited child support agreement. Binding agreements do not require a notional assessment by the child support agency and these types of agreements can be entered into without a child support assessment taking place. Limited child support agreements however must have a child support assessment in place and the amount of child support agreed to in this agreement must be equal to or more than the amount payable under the child support assessment. For this reason, binding child support agreements can provide parents with greater flexibility.
A Binding Child Support Agreement may outline:
- The type of payment or a combination of payments, for example:
- Periodic payments on a weekly or fortnightly basis.
- Non-periodic payments are made occasionally for a particular thing, but not regularly such as lump sum payments for school fees, or uniforms; and
- Directly to a third party, for example, the child’s school or private health care provider.
- The amount to be paid
- The frequency payments will be made; and
- The method of payment.
Once both parents enter into a binding child support agreement, variation is not permitted unless agreed on by both parties. If circumstances change and one parent is unable to pay the support required within the agreement, they will still be obligated to make those payments, unless the agreement is set aside by a Court as an exceptional circumstance has arisen since the making of the agreement.
In order to document a Binding Child Support Agreement, both parties are required to obtain their own independent legal advice prior to signing the document.
If changes to an agreement are needed to be made, it is also imperative to discuss any changes to the document with a family lawyer who can assist with negotiating and drafting a new agreement.
Attwood Marshall Lawyers – helping families resolve conflict and protecting the best interests of children
If you are involved in a child support disagreement, our dedicated family lawyers can help you negotiate the terms of the arrangement and document agreements properly. Our Family Law team practice exclusively in this complex area of law and are experienced in handling all children and parenting matters to support families through these difficult times. We always focus on what is in the best interests of the children and how disputes can be resolved as quickly and cost-effectively as possible.
If you need help with a parenting or child support matter, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email firstname.lastname@example.org or call 1800 621 071 at any time.