a lady and a man looking after an asian baby

Child Support for
Non-Parent Carers

I provide care for a child but I am not the parent – can I get child support?

The short answer:  It depends who you are and what your relationship is to the child you are caring for.

In order to be considered a non-parent carer a person must be:-

  1. a legal guardian of the child; or
  2. a family member of the child such as, a grandparent, step-parent, sibling, aunt, uncle, niece, nephew or cousin of the child.

Am I eligible to be considered a non-parent carer?

A person may be eligible as a non-parent carer to apply for child support if they meet all of the following conditions:-

  1. they care for a child at least 128 nights or more per year;
  2. they are not in a domestic relationship with either of the child’s parents; and
  3. they do not have joint care with either of the child’s parents.

If a person is eligible to receive child support as a non-parent carer, they must apply to receive child support from both of the child’s parents, unless circumstances arise such as:-

  1. one parent is not a resident of Australia;
  2. one parent has died; or
  3. there are other circumstances that make seeking child support from both parents difficult, i.e. if the identity of one parent is unknown by all parties.

We can help you?

If you think that you may be eligible to apply for a Child Support Assessment as a non-parent carer, you should make an appointment to obtain legal advice.

We encourage you to contact our office to make an appointment to obtain advice on 07 4963 2000 or via our online contact form.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Clerk
Family Law

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Can the Court change my
Child Support Assessment?

Yes, the Court can change your child support assessment, but only in certain circumstances.

In most cases any amendments to your child support assessment will be considered by the Child Support Agency internally.  However, the Court may make orders in certain circumstances where a person has previously applied to the Child Support Agency directly and they object to their decision.

How do I make an Application to the Court to change my child support assessment?

Before making an Application to the Court, a person must have satisfied all administrative requirements within the Child Support Agency, including (if applicable) an application to the Administrative Appeals Tribunal for a review of an Agency decision.  If after exhausting these options, the person remains unsatisfied with their assessment, they can then file an Application to the Court.

What type of Applications can the Court hear?

The Court has the power to hear the following Applications:-

  1. for a declaration that a person is or is not a parent of a child for the purposes of paying or not paying child support (generally where the paternity of the child is contested);
  2. for recovery of child support paid when a person was not liable to pay child support;
  3. for leave to change an administrative assessment for a period that was over 18 months ago but less than seven years ago;
  4. for child support to be paid in a form other than periodic amounts;
  5. to set aside a binding child support agreement if the agreement was obtained by fraud, undue influence or duress or there are exceptional circumstances;
  6. to set aside a limited child support agreement if there has been a significant change in circumstances of one of the parties or the annual rate of child support is not proper or adequate to support the child;
  7. for the payment of child support (in urgent circumstances);
  8. for a stay order (to suspend or reduce the amount of child support payable while an alternate application or court case is pending);
  9. for adult child maintenance (where a child is over eighteen) or overseas child maintenance orders (where one party is overseas); and
  10. to recover a child support debt (these applications may only be made to the Child Support Registrar or the parent who is owed the child support);

We can help you?

If you think that you may be eligible to apply to the Court in relation to your Child Support Assessment, you should make an appointment to obtain legal advice.  We encourage you to contact our office on 07 4963 2000 or via our online contact form.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Clerk
Family Law

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Will COVID-19 affect
my superannuation split?

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Can I change my
Child Support Assessment

Yes – but you need to establish grounds

In short, yes you can.  You can:-

  • apply to change your child support assessment if you pay child support; or
  • apply to change your child support assessment if you receive child support.

However, the Child Support Agency will only change an assessment where a person has satisfied a three step process.  These steps are:-

  1. Is there a ground for changing the Assessment?
  2. Is it just and equitable to change the Assessment?
  3. It is otherwise proper to change the Assessment?

Step 1 – Reasons to Change the Child Support Assessment

The Registrar will consider changing an assessment where it is established that there are special circumstances (grounds or reasons) that should be taken into consideration.  There are ten circumstances that may support a change in assessment as follows:-

  1. The costs of maintaining the child/children are significantly affected by the high cost of enabling the paying parent to spend time with or communicate with the child/children.
  2. The costs of maintaining the child/children are significantly higher due to the child/children’s special needs.
  3. The costs of the child/children’s education, care and training are significantly higher and both parents intended the education, care and training to be at that level prior to separating.
  4. The assessment is not fair due to the child/children’s income, earning capacity or property and financial resources.
  5. The assessment is not fair as the paying parent has provided money, goods or property to the child/children, the receiving parent or caregiver for the specific benefit of the child/children.
  6. The costs of the child/children’s child care costs are significantly higher (applicable where a child is under 12 years of age).
  7. The paying parent or receiving parent’s necessary expenses significantly affect their capacity to support the child/children.
  8. The assessment is not fair because of the income, earning capacity, property or financial resources of either the paying or the receiving parent.
  9. The paying or receiving parent’s capacity to support the child/children is significantly affected by:-
    1. the need for them to support another child or person;
    2. their necessary expenses in supporting another child or person;
    3. their high costs of spending time with or communicating with another child or person (where they are required to spend time and communicate with another child or person).
  10. The paying or receiving parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child/children to whom the child support payments relate.

Each of these reasons can be quite complicated and you should make an appointment to obtain legal advice prior to lodging such an Application.

Step 2 – Is it Just and Equitable?

Once a person has satisfied the Registrar that special circumstances (or grounds) exist in their assessment, the Registrar must then consider whether it is ‘just and equitable’ for the change to be made.  In doing so, the Registrar will generally consider the following:-

  1. The nature of the duty of a parent to maintain the child/children.
  2. The proper needs of the child/children.
  3. The income earning capacity, property and financial resources of the child/children.
  4. The income earning capacity, property and financial resources of both the paying parent and the receiving parent, including the commitments that both parties have to support themselves and any other child/children or person that they are required to support.
  5. The direct and indirect costs incurred by the receiving parent in providing care for the child/children.
  6. Whether any hardship would be caused to the receiving parent or the child if any order to change the assessment is or is not made.
  7. Whether any hardship would be caused to the paying parent or any other child/children that the paying parent supports if an order to change the assessment is or is not made.

Establishing whether it is just and equitable can be quite complicated and you should make an appointment to obtain legal advice prior to lodging such an Application.

Step 3 – The Otherwise Proper Requirement

If the Registrar is satisfied that there are grounds to change the assessment and it is just and equitable to make a change in the assessment the Registrar must then consider whether it is otherwise proper and in accordance with public policy to make the change.  Generally the Registrar will consider:

  1. The nature of the parent’s duty to maintain the child/children.
  2. The effect that change in assessment would have on:-
    1. any entitlement of the child or the receiving parent to an income tested pension, allowance or benefit; or
    2. the rate of any income tested pension, allowance or benefit payable to the child or the receiving parent.

Establishing the grounds whether it is otherwise proper can be quite complicated and you should make an appointment to obtain legal advice prior to lodging such an Application.

Getting the Application right in the first place is crucial to your chances of success.

We encourage you to contact our office to make an appointment with one of our solicitors to obtain advice on your situation on 07 4963 2000 or via our online contact form.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Clerk
Family Law

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Child Support
– can I get it back?

In limited circumstances, if it arises that a person (the ‘paying parent’) has been paying child support and it becomes evident that there was no basis for this payment because they were not the parent of that child, then they may be able to apply to the Court for a repayment order.

What does the Court consider when I apply for a refund of child support?

In order to apply for a repayment order, the paying parent must satisfy the Court that they are not the parent of the child.  This may be established by way of a DNA paternity test that meets the Court’s requirements.

The Court will then also consider:-

  1. whether the paying or the receiving parent had previous knowledge or concerns about the paternity of the child;
  2. whether there has been any delay in making the claim for repayment after paternity has been established;
  3. the relationship between the paying parent and the child;
  4. evidence in relation to the child’s biological parents; and
  5. the financial circumstances of both the paying parent and the receiving parent.

If the Court is satisfied that payments were made and the receiving parent was not entitled to that child support then the Court may make an order for the amount to be repaid to the paying parent.

Get Advice

If you are considering making an Application to the Court in relation to child support in these circumstances it is important that you obtain legal advice to discuss your options and your potential for success.

We encourage you to contact our office to make an appointment with one of our solicitors on 07 4963 2000 or via our online contact form to obtain advice specific to your situation.

Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

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Child Support after 18

Will I still have to pay child support after my child turns 18?

In certain circumstances, yes you may.

Application to extend child support assessment

A parent receiving child support for a child who is

  • turning 18; and
  • completing full time secondary education;

can make an application to extend the child support assessment until the end of the school year.

The Child Support Agency requires applications to be made before the child’s 18th birthday.  Late applications will only be accepted where there are exceptional circumstances, such as serious health problems or hardship (eg a natural disaster) which caused delay in lodging the application.

Contact the Child Support Agency to find out if you are eligible to extend your child support agreement.

Application for Adult Child Maintenance

Adult child maintenance (which is different to child support) may also be payable where the child is attending university or TAFE, or where the child has a mental or physical disability.  This cannot be done through the Child Support Agency.  Parents can make their own agreement about the maintenance to be paid, or the paying parent may make an agreement with the child directly.  In circumstances where parties cannot agree, either a parent or the child can make an application to the court seeking adult child maintenance to enable the child to complete their education.

The amount of maintenance payable will depend on factors such as the child’s expenses and the financial position of each parent.

Please do not hesitate to contact our office on 07 4963 2000 or via our online contact form to make an appointment if you would like advice or assistance in applying for adult child maintenance, or in negotiating payment terms with your child or the other parent.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

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paternity test, fingerprint and dna string

Paternity Doubt: Do I
have to pay child support?

Doubts about paternity often arise after parents separate. One reason for these queries to be raised is where the parents of a child separate and the father is assessed to pay child support. If the person does not believe they should be liable to pay child support because they did not believe they are the father, they must provide the child support agency with evidence disproving paternity. The Child Support Agency will accept evidence from:

  1. The results of a legal paternity test; and
  2. A declaration of parentage from the court.

Paternity testing of a child can be undertaken with the consent of the mother. Where the mother does not agree to the test, an application can be made to the court for a parentage testing order.

The person who wishes to obtain an order for parentage testing will need to show to the court that there is an honest and reasonable doubt as to paternity. This means that there needs to be something more than mere suspicion however it is not necessary to provide evidence that another person in particular is the father of the child.

Not all tests are the same. There are two different types of paternity tests that can be undertaken. Some tests are completed in a way which cannot be used in court proceedings regarding the issue of parentage. Testing which can be used as evidence in court must comply with strict requirements concerning sample collection, delivery and laboratory testing.

Applications to the court and parentage testing can take time. In the interim if there is a child support assessment in place the debt will continue to accrue unless you make an application to the court to stop the payments until the outcome of the testing is known, this is known as a Stay Application. You should obtain legal advice if wanting further information about a Stay Application.

It is important to obtain legal advice to discuss your situation before making any allegations, as these allegations often have a detrimental impact on relationships within the family.

You can contact our office to make an appointment with one of our solicitors to receive advice on your situation on (07) 4963 2000 or via our online contact form.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

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child support make it easier sign

Child Support – make it easier

Parents almost always complain about the child support system, both paying parents and parents who receive child support.  However there are certain things that parents can do to make child support easier.

Private Agreements

A lot of parents would pefer not to deal with the Child Support Agency.  Parents have the ability to be able to enter into a private child support agreement which is registered with the Child Support Agency provided a certain process is followed.

There are Limited and Binding Child Support Agreements.  Binding Child Support Agreements require a solicitor certificate to confirm you have received independent legal advice about the advantages and disadvantages associated with the agreement.

Limited Child Support Agreements can also provide a lot of flexibility about how child support is paid and what it is used for (education expenses including school fees, medical expenses including dental and private health cover and other expenses as well).  Independent legal advice is not required but is strongly recommended as the agreement can be difficult to change.

Communicating with the Agency

If you are dealing with the Child Support Agency it is important you keep them informed and you keep records of your contact with them, especially when telling them important information.  You can get a receipt number at the end of phone calls with the Agency.

The Child Support Agency is a large organisation and you will not always be able to deal with your case officer.  Making a note in your diary (or electronically) of the person you spoke to, the date and the receipt number will make it much easier for you to refer back to in the future. Make a note of any time deadlines given to you by the Agency (to appeal decisions or provide information) and comply with them.

Educate yourself about the Child Support System.  There is an online estimator which you can find by doing a google search to tell you about what child support is likely to be paid and received based on different factors.  Child Support also have “The Guide” which is a very comprehensive guide about all sorts of issues.  The system is complicated and legal advice is recommended to consider your individual problem.

Sometimes the system can be confusing and people often comment they feel like they receive little assistance or are treated poorly when dealing with the Agency.

Avoid getting angry and get some legal advice to know where you stand and avoid the situation getting worse.  Contact our office on (07) 4963 2000 or via our online contact form should you have any queries.

James Bailey
Solicitor
Family Law

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