Family and Defacto Relationship Law
Wills & Estates
Separation of spouses/de facto partners (including same sex partners) can result in certain financial obligations or entitlements which did not exist before. If the separated couple has children under 18 years of age, the ongoing financial support of the children (called child support) needs to be quickly addressed. Regardless of whether or not the couple has children, sometimes a spouse maintenance claim arises which will see one party have the right to claim financial support from the other.
Child support (sometimes referred to as child maintenance) is the payment of money towards the financial support of children following the separation of their parents. Usually, one parent (“the payer”) pays the other parent (“the payee”) a regular sum to assist with meeting the general living expenses of their children, who possibly now live more with the payee than with the payer. Child support can also be payable in some other situations, such as where a child lives fulltime with a carer (e.g. a grandparent). In those circumstances, both parents of the child may be required to pay some child support to the grandparent to assist with the child’s living expenses.
Subject to some limitations for payees receiving certain government benefits, parents are free to negotiate and reach their own agreement about the amount of child support to be paid. If they reach an agreement, they can remain totally outside the child support system. Payments can be made directly to the payee by the payer. It is not necessary to record their agreement in writing, but it would be wise to do so, particularly from the payer’s perspective so there is a written document of sorts evidencing their agreement. Otherwise, the payer could become liable for child support arrears (back payments) if their private arrangement breaks down for some reason.
Agreements about child support can be formally recorded by means of either a Limited Child Support Agreement (“LSCA”) or a Binding Child Support Agreement (“BCSA”). There are many legal requirements surrounding each type of Agreement. As the name suggests, LCSAs have some limitations. Importantly, but among other things, they can be terminated after 3 years have passed and in some situations can be terminated sooner than this. Before a LCSA will be accepted by the child support arm within the Department of Human Services (“DHS”), there must be a current child support assessment in place and the amount of support payable under the LCSA must be at least the amount of child support payable under the DHS assessment. LCSAs provide parents with some flexibility to determine their own child support arrangements.
A more formal and concrete arrangement is a BCSA. These allow parents to make a binding agreement about the financial support to be paid by each of them towards raising their children. A BCSA can include provisions for the payment of periodic sums (e.g. weekly or fortnightly), as well as the payment of non-periodic expenses that might arise from time to time. These might include things like private school fees, private health insurance premiums, elective medical treatment, sport and hobby activities, and holidays.
Before parties can enter into a BCSA, each party must receive independent legal advice from separate lawyers as to the effect of the proposed Agreement and the advantages and disadvantages of signing the Agreement. BCSAs cannot be varied and it is also much harder to terminate these Agreements than LCSAs. Terminating a BCSA requires a court application and producing evidence which shows that exceptional circumstances have arisen since the Agreement was made which would cause the applicant or the child to suffer hardship if the Agreement is not set aside. For these and other reasons, very careful consideration needs to be given to the consequences of signing a BCSA.
The law surrounding Child Support Agreements is complex. Many issues need to be considered and carefully factored into the negotiations during the preparation of an Agreement. This will ensure that the Agreement is tailored to your specific needs. If you are considering a Child Support Agreement, it is imperative that you work with an experienced family law solicitor who is skilled in dealing with such Agreements. A failure to meet all of the strict legal requirements for a BCSA or a LCSA could lead to an Agreement being set aside by the court and, therefore, not serving its intended purpose. Such a scenario would mean that legal expenses would have been incurred and there would quite possibly have been difficulties associated with the regular payment of child support while the legal matters were being dealt with.
Lindsay Woods, a Queensland Law Society Accredited Specialist in Family Law, has many years’ experience in preparing, reviewing and advising upon Child Support Agreements. You will benefit from his expertise and support during this challenging process, and he will ensure your Agreement suits your individual circumstances. Call our office now to make an appointment with Lindsay, or submit your enquiry online here.
Whilst the option of using a Child Support Agreement is available to many, not everyone wishes to deviate from the standard child support assessment process. The DHS uses a formula that mathematically calculates how much a parent should pay for their child. The main factors taken into account in assessing the child support amount are:
A DHS assessment is likely to change as each parent lodges their annual tax return. The DHS uses up-to-date tax information accessed from the Australian Taxation Office to undertake new assessments from time to time. A substantial change in care arrangements for the children will also have an impact upon the amount of child support payable.
Following an assessment of child support by the DHS, if you feel the amount is unfair or inaccurate, you may be able to apply to the DHS to change the assessment. For instance, a variation might be reasonable if you are solely paying the mortgage instalments on the house in which the children reside, or you are solely paying the children’s private school fees. Child support laws are quite complex and difficult to fully understand. If you find yourself in a position where you need advice or assistance with any child support issues, please contact us for an appointment with Lindsay, or submit your enquiry online here.
When a marriage or de facto relationship (including same sex relationships) ends, the Family Law Act provides that each spouse/former partner is liable to financially maintain the other party to the extent that they are reasonably able to do so if the other party is unable to support himself or herself adequately. Specific reasons why a person may not be able to support himself/herself include their ongoing care of a child or children of the marriage/relationship who has not reached 18 years of age, or because the party’s age or their physical or mental health is such that they are incapable of undertaking gainful employment.
Court orders for spouse maintenance can be made by consent, after a contested hearing, on an urgent basis, on an interim basis, or to vary or discharge existing spouse maintenance orders. The purpose of spouse maintenance is to provide a payment of money from one party to the other to assist the second party to financially support themself after separation or divorce. A spouse maintenance order would only be made if the party seeking maintenance can show the court they are in need of financial assistance, and the party being asked to pay has the financial capacity to do so.
The amount of spouse maintenance ordered by a court will depend on the circumstances of your individual case, but the court would have regard to a list of factors set out in the Family Law Act and apply these to your particular situation. If the parties are also attending to a property settlement, any final spouse maintenance order to be made will take into account the outcome of the property settlement. This is because the outcome of the property settlement may mean that the party who previously needed financial assistance no longer does.
Spouse maintenance can take the form of periodic payments during a fixed period of time or as a one-off lump sum payment, which would usually be rolled into the property settlement by increasing the percentage of the property pool to which that person is entitled. The setting of a fixed term for periodic spouse maintenance enables the recipient to retrain, enter or re-enter the workforce and/or generally re-establish themself.
Spouse maintenance is a separate issue from a property settlement, but it is not relevant to every marriage or de facto relationship. To obtain advice about your potential entitlement to spouse maintenance or your potential liability to pay spouse maintenance, contact us to make an appointment with our Family Law Accredited Specialist, Lindsay Woods, or submit your enquiry online here.