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Child Support

Thu, 02/07/2013 - 09:47 -- alexr

The Child Support Agency

The Child Support Agency (CSA) is an administrative Agency that is part of the Commonwealth Government. The role of the Child Support Agency is to provide assistance and support to separated parents and to ensure the financial wellbeing of their children.

The Child Support Agency is responsible for conducting assessments of child support to be paid and received by separating parents. The Assessment is based on a formula which is set out in the Child Support (Assessment) Act 1989 and allows the Child Support Agency to take into account a number of discretionary factors.
 
The Agency also has extensive powers to ensure that Assessments, once in place, are enforced. These range from garnishing the wages of a non-complying parent to preventing overseas travel in extreme circumstances.
 
We can assist you in your dealings with the Child Support Agency to ensure that the best possible outcome is obtained for you and your family.
 

Child Support Assessments

The Child Support Agency (CSA) uses an administrative formula to make a child support assessment. This formula is set out in the Child Support (Assessment) Act 1989 and is based on the Costs of Children table which is released each year. The objective of the Assessment is to ensure that the costs of the child are shared between both parents by either paying child support or caring for the child.

After assessing the costs in relation to the child the CSA assess the parent's capacity to pay based upon their income. A parent's income is adjusted to include a component necessary for everyday living and then the balance is the subject of an assessment. We can assist you throughout the assessment process to ensure the Child Support Agency is aware of all of the relevant factors that will affect your assessment.
 
The CSA does not need to follow the administrative formula in all circumstances. The legislation provides a means for the CSA to change an assessment if you meet certain criteria or fall into certain exceptions. For example if the costs of maintaining your child are significantly higher because your child has special needs the assessment may be altered. We have experience in dealing with the CSA and ensuring that all of the necessary facts to support your case are given consideration when they are reaching their decision.
 

Making an Objection to Child Support Assessment

It is possible to object to a Child Support Assessment once it has been made. However there are only certain grounds that the Child Support Agency will hear objections upon. Our experience in dealing with the Child Support Agency means that we are able to advise you on your prospects of overturning or altering a Child Support Assessment and tactically present submissions to the Child Support Agency to voice your objection.

Once the Child Support Agency receives a valid objection it must as soon as practicable provide a copy of that objection to the other parent who must then respond to the objection so that the Agency has a fair understanding of both sides of the issue. If you are served with an objection we can also assist you to ensure that your response covers all issues relevant to the objection and your individual situation. We take the time to make sure all of the facts are properly presented to the Child Support Agency to achieve the best result for you.
 
If you would like further information about objecting to your child support assessment please contact us as soon as possible bearing in mind that these is a time limit on your ability to lodge those objections.
 

Child Support Variations

A child support assessment can be varied in two ways:

  1. Through an agreement to vary that assessment; or
  2. A departure Order

Child Support Agreements

These take the form of either binding or limited agreements. We have experience in drafting and advising on binding child support agreements to ensure the finality of the financial relationship between you and the other parent. The CSA encourages parents to make their own agreements as to what child support should be paid and received. We can advise you on your entitlements and provide guidance, or conduct negotiations for you to ensure that the agreement reached is the best possible outcome for you.
 
Negotiating an agreement will give you flexibility and finality. A Binding Child Support Agreement can be negotiated prior to, at the same time or after the finalisation of any property settlement between yourself and another parent and we can advise you which approach will give you added bargaining power in your negotiations.
 
Our experience in Family Law and Child Support in particular will ensure that the best possible outcome will be achieved based on your individual needs. We can assist you to negotiate for either a lump sum payment or an ongoing periodic payment depending upon your particular needs.
 
A Child Support Agreement must be registered with the Child Support Agency and the Child Support Agency can be utilised to enforce the agreement in the same way that it would seek payments required under a normal assessment.
 

Appeals Against Child Support Assessments

In some circumstances if you are not satisfied with the response the Child Support Agency (CSA) provides to your objections you may be able to appeal that decision. An appeal may be lodged with the Social Security Appeals Tribunal (SSAT).

The SSAT will hear appeals on the CSA’s decision including upon the following:
  • A refusal to make an Assessment;
  • The decision as to the particulars of a child support assessment, namely:
  • The adjusted taxable income of each parent;
  • The amount a parent necessarily needs from that income for self support;
  • The child support income of each parent;
  • The split of care for the particular child between both parents;
  • The costs of each child; and
  • The annual rate of child support.
  • A refusal to change an assessment based on certain discretionary factors;
  • To accept or refuse a child support agreement;
  • To terminate a limited financial agreement; and
  • A refusal to accept an objection out of time.
The SSAT is meant to provide a quick, just and informal determination of all appeals by a completely independent body. As soon as possible after an appeal is received the SSAT will review the application and contact the other parent to arrange a hearing date. We will make sure that your case is correctly presented to the SSAT. We have experience in conducting appeals of administrative decisions and will ensure that you have the best chance of achieving a fair outcome.
 
There are a number of different ways your appeal can be lodged with the SSAT and we can advise you of the most effective for your circumstances. There is a time limit on your ability to appeal a CSA decision so if you have any questions about your Assessment please contact us as soon as possible.
 
If either the CSA or the SSAT has made an error of law when conducting your assessment or a review of some part of that assessment you may apply to have that decision reviewed by the Federal Court. We have experience in conducting appeals of this nature in the Federal Court and can advise you on your prospects of success at an early stage.
 

Tax Effective Child Support Trusts

The breakdown of a marriage (so far as it relates to property settlement and ongoing financial obligations) can be a time when effective tax planning arrangements can be put into place. This is true in relation to ongoing obligations to pay child support where there has been a breakdown of a relationship and a court order has been made to pay child support or it is payable by virtue of a legislative scheme such as under the Child Support Act.

The use of a child support trust or child maintenance trust (Trust) in marriage breakdown circumstances is not for everyone but, if your circumstances make it suitable to pay child support or receive child support through a trust of this type, the financial advantages can be enormous.
 
Under normal circumstances, a minor will be taxed at a very punitive rate for any unearned income that is distributed to the child. Provisions of the Tax Act provide for this to prevent income splitting of unearned income to minors.
 
Where a marriage breakdown is involved and there is an obligation as outlined above to pay child support, there is an important exemption provided that certain technical requirements are met. This exemption allows the child to received unearned income at the same tax rates as would apply to an adult. Provided that you meet the criteria for the establishment of such a trust and if you have an obligation to pay child support for a large number of years and/or for a number of children, the tax benefits to you may be very substantial. If you are to receive the benefit of child support, it can mean that the payer can afford to make more substantial payments because they will be tax-effective in the payer's hands.
 
We have the ability to prepare a tax-effective child support trust that will be deemed compliant by the Tax Office provided that your circumstances meet the requirements for these trusts.