Child Support vs Child Maintenance in Family Law Matters

Child Support or Child Maintanence – Which is required to be paid?

When parents are no longer together, financial contributions can be made towards the costs of the child by the parent who has a smaller percentage of the care of that child. These payments are often referred to as child support payments. Payment amounts can be determined privately or by way of a Child Support Assessment. They can be self-managed or managed through Services Australia.

Those who are ineligible to apply for a child support assessment with Services Australia can apply for Child Maintenance. Child maintenance payments are payable by order of the Court on application or by consent.  The Family Law Act 1975 (“FL Act”) prevents the Court from making child maintenance orders if the Registrar can make a Child Support Assessment with respect to the child. This is to prevent the Court from becoming clogged with applications and unnecessary litigation.

Child Support Payments

Child Support Payments are governed by the Child Support (Assessment) Act 1989 (“CSA”). If parents cannot privately agree on Child Support, a Child Support Assessment can be made by a Registrar of the Court on application.[1] Both parents are assessed in respect of the costs of the child. Child Support amounts are assessed based on the child’s age, the parents’ individual and combined incomes, and the time each parent contributes to the child’s care.

Services Australia uses the following basic formula to determine who will pay child support:[2]

• You will pay child support if your percentage of care of a child is less than your share of the combined income.
• You will receive child support if your percentage of care of a child is more than your share of the combined income.

Applications for an assessment can be filed through Services Australia or otherwise in accordance with sections 27 and 150A of the CSA. There are separate applications for non-parent carers.

The assessment is registered with Services Australia who can manage, transfer and enforce payments if required. Parents can also make private arrangements for payment of Child Support.

[1] CSA Act s 25(b).

[2] https://www.servicesaustralia.gov.au/child-support-assessment-formula?context=21911

Private Child Support Agreements 

Parents can privately agree on how much support is to be paid and the manner in which payments are made. These are also referred to as ‘self-managed’ agreements. There are two methods for reaching a self-managed agreement.

Limited Agreements can be made if there is already a Child Support Assessment in place with Services Australia. Parents are not required to obtain independent legal advice before entering into a Limited Agreement. Payments in a Limited Agreement must be more than or equal to the annual rate contained in the assessment. Parents who have less than 35% care of the child cannot receive support under a Limited Agreement.

If there is no Child Support Assessment in place, parents have the option of entering into a Binding Child Support Agreement. These agreements are contractual in nature and do not require Court intervention or permission in order to be binding. Parents must have obtained independent legal advice prior to entering into a Binding Child Support Agreement.

Child Maintenance

Child Maintenance orders can be made by consent or on judgement of the Court in circumstances where parents are not eligible to apply for a Child Support Assessment.[1] Orders can include but are not limited to lump sum payments, periodic payments and transfer of property.[2]

Orders for Adult Child Maintenance can be made if the child is over 18 years of age and has mental or physical disabilities, or to allow the child to complete their education.[3] If the child is over 18, the orders must provide an end date for payments. Financial contributions are calculated based solely on matters referenced in section 66K of the FL Act.

Persons eligible to receive Child Maintenance can be one or both parents of the child or the child themselves. Recipients of Child Maintenance can also be non-parent carers, such as legal guardians, grandparents, or other family members.

[1] FL Act s66G.

[2] FL Act s66P.

[3] FL Act s66L.

Conclusion

Child Support Assessments can be conducted by Services Australia on application. Services Australia considers applications within the scope of the CSA and takes into account income and care contributions. Services Australia can then manage child support payments.

If parents have received a Child Support Assessment but want to manage their payments privately, they can enter into a Limited Agreement. If no assessment has been conducted, parents can enter into a Binding Child Support Agreement after obtaining independent legal advice.

Lastly, those who are ineligible for a Child Support Assessment can apply to the Courts for a Child Maintenance Order. If the child is over 18 and suffers from a disability or requires support to complete their education, orders for Adult Child Maintenance can be made.

Need advice?

At Greenhalgh Pickard, we understand the unique challenges faced by parents on the Sunshine Coast. Our team is here to guide you every step of the way. If you need assistance with your parenting or property matters, reach out via our contact page or give us a call. We’re here to help.