Child support is intended to assist with the day-to-day expenses for children, but it does not factor in larger expenses such as school fees and medical costs. There are some other mechanisms available for addressing this though.
How child support is assessed
The formula used by Services Australia to assess what amount of child support should be paid is based on the following factors:
- Each parent’s income;
- How many dependent children each parent has;
- How much time each parent cares for the child; and
- The age of the child.
There is no consideration given to the particular expenses applicable to each child, which means that the assessed amount will not be varied on account of additional expenses such as:
- School fees;
- Uniforms, books and technology requirements;
- Private health insurance;
- Medical and dental costs;
- Childcare expenses; and
- Extracurricular activities.
Child support agreements
It is possible for parents to reach an agreement about what amount of child support should be paid or how particular expenses for their children should be met. However, an agreement like this will not be binding and enforceable unless the parties enter into either a Limited Child Support Agreement or a Binding Child Support Agreement.
A Limited Child Support Agreement can only be made if there is already a child support assessment in place and the payments set out in the agreement are equal to or more than the annual rate in the assessment. It is not necessary to have independent legal advice before signing this type of agreement, but they can be terminated after three years.
A Binding Child Support Agreement can be made with or without an assessment in place. It is necessary for both parties to obtain independent legal advice and for their respective lawyers to sign a certificate to confirm this. These agreements can remain in place until the child is 18 years old (or beyond) and can only be varied or terminated through a further formal agreement or court order.
Prescribed non-agency payments
If the parent liable for paying child support is also paying additional “prescribed” expenses, it may be possible to ask Services Australia to credit such expenses against their usual assessment, without agreement from the other parent.
Prescribed expenses include:
- School fees;
- School uniform and book fees;
- Essential medical and dental items;
- Childcare costs;
- The other parent’s share of rent or mortgage payments; and
- The other parent’s share of utilities and rates.
However, a credit will only be applied if the paying parent has less than 14% care of the children, and only up to 30% of the assessed amount can be credited.
Departure and substitution
In limited circumstances, it is possible to apply to Services Australia or to the Family Court for a determination or order to change or depart from the child support assessment.
A departure can be made on various grounds, including if the costs of maintaining the child are significantly affected because of the special needs of any child, high childcare costs, or because the child is being educated in the manner that was expected by their parents.
It is also possible to seek an order from the Family Court for child support to be paid in non-periodic amounts, or as a lump sum to be credited against the child support assessment.
For example, in Yanda & Jacome (2023) FLC 94-150, the father was ordered to pay non-periodic private school fees in addition to the existing child support assessment. However, this was set aside on appeal on the basis that the judge did not take into account the father’s obligation to pay a tax debt and that he would therefore have no capacity to pay the school fees.
If you would like further information about child support or assistance with entering into a Binding Child Support Agreement, please contact Lynn & Brown Lawyers.
About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.
