Unpaid Child Support – Everything you need to know
Under Australian law, separated parents (including same-sex parents) have a duty to provide proper levels of financial support for their children.
Unfortunately, and all too frequently following separation, a liable parent will fail or refuse to pay child support payments to the receiving parent. This results in the receiving parent feeling anxious and distressed as they might then become solely responsible for the financial care, wellbeing and maintenance of their child.
The below guide provides some helpful answers to some common questions asked by family law clients in relation to claiming unpaid child support payments.
Who organises child support in Australia?
In Australia child support is administered by Services Australia under the Child Support (Assessment) Act 1989 and unpaid child support liabilities are regulated by the Child Support (Registration and Collection) Act 1988 (Cth) (“CSAA”).
In some instances, Services Australia can also assist with pursuing the collection of child support payments from a liable parent that resides overseas. This is usually possible, if the liable parent resides in a country that is a reciprocating jurisdiction as set out in Schedule 2 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth).
How is child support calculated?
Child support is usually calculated by Services Australia by way of an administrative assessment. However, it can also be agreed upon privately between parties and be set out in a Limited Child Support Agreement or Binding Child Support Agreement. Privately agreed child support is usually paid between the parties, however it can also be paid through the Child Support Agency, Services Australia.
Child support can also be determined by way of an order of the Court. In some circumstances, a parent can also apply to the Court to change an existing administrative assessment.
How is child support paid?
Child support payments (whether paid through Services Australia or by way of private arrangement) are usually paid by BPay, electronic transfer of funds, cheque or money order.
In some instances, child support payments can be made by way of automatic benefit or wage deduction of the liable parent’s income. Frequency of child support payments can vary between weekly, monthly or fortnightly payments.
Periodic child support payments are usually paid on a regular basis. They are usually as assessed by Services Australia or as set out in a Limited or Binding Child Support Agreement.
Non-periodic child support payments are usually made indirectly to third parties and are applied towards expenses such as school fees, uniform, sporting or extra-curricular activity.
Lump sum child support payments can also be agreed upon by the parties and paid in advance, to be credited against the total amount of child support payable.
What happens when there is unpaid child support?
If the paying parent does not pay the periodic child support maintenance amount as assessed or as agreed in the registered child support agreement, the receiving parent should immediately notify Services Australia.
Services Australia under the CSAA has the power to recover unpaid child support on behalf of the receiving parent, from the liable parent in various ways: –
- Contacting the liable parent – Services Australia will attempt to contact the payer and formulate an agreement with respect to payment of the owed money.
- Garnishing the liable parent’s wage – if the liable parent continues to fail to pay child support, and that parent is employed, Services Australia can also approach their employer and deduct child support payments directly from their income. The child support payments are then paid to the receiving payments directly from Services Australia.
- Garnishing tax returns – If the liable parent is entitled to a tax refund, Services Australia can intercept the tax refund and collect unpaid child support which is than paid to the receiving parent.
- Bank account deduction – Services Australia also has the ability to withdraw unpaid child support payments directly from the liable parent’s bank accounts on behalf of the payee.
- Deduction from Government Benefit Payments – If the liable parent is unemployed and receiving benefits from Centrelink, Services Australia can also extract the assessed unpaid child support amount from the benefit payments and subsequently pay the funds to the receiving parent.
- Court proceedings – If the above-mentioned enforcement methods fail, in some instances, the Child Support Registrar can on behalf of Services Australia also initiate Court proceedings against the liable parent to collect unpaid child support.
- Restraint – A Departure Prohibition Order, which is an administrative order restraining the liable parent from leaving Australia can also be imposed on the liable parent by Services Australia until such time that the liable parent pays the outstanding child support.
An application can also be made by the receiving parent to the Federal Circuit and Family Court of Australia in relation to recovering any non-periodic child support payments, such as payments of school fees and uniform fees, as set out in the agreement entered into by the parties. The Child Support Registrar is unable to collect or enforce payment of non-periodic payments under a Child Support Agreement.
What happens to unpaid child support if the liable parent lives overseas?
If the liable parent lives in a reciprocating jurisdiction pursuant to Schedule 2 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth), Services Australia can contact the relevant authorities in that jurisdiction and arrangements can be made to enforce payment of overdue child support.
Some countries require recognition of unpaid child support through Australia’s family law courts prior to taking steps to enforce payment.
What if you suspect that the liable parent is hiding his or her true income?
Services Australia can investigate and even work with other government departments to determine the liable parent’s assets or true income.
Seeking legal advice from a family lawyer
Our family lawyers specialise in matters concerning payment of child support and can assist you with claiming any outstanding payments.
It is also prudent to seek advice of a family lawyer with respect to any payment arrangement associated with child support prior to entering into those agreements, so that appropriate measures can be implemented to mitigate risks associated with respect to child support debt.
Doolan Wagner Family Lawyers offer specialist family law advice and are based in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at email@example.com to discuss your matter in complete confidence. We have a dedicated team of experienced family lawyers to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.
About the Authors:
Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist holding honours degrees in economics and law. She is also a Collaboratively trained Family Lawyer, a Family Dispute Resolution Practitioner, and a Parenting Coordinator. Lisa has over 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters; working for the majority of that time in Sydney’s CBD as well as on Sydney’s lower North Shore and Northern Beaches.
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Sara Arnold is an Associate at Doolan Wagner Family Lawyers. Sara holds a Master of Applied Law (Family Law), a Bachelor of Laws and a Bachelor of Business Management.
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These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.