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Child Support Agreements

Recent amendments to the child support legislation mean that from 1 July 2018, Child Support Agreements can be suspended. And eventually terminated in circumstances where a care percentage of a carer, entitled to be paid child support, falls below the threshold percentage. Also where the Agreement does not provide for what is to occur in such an event.

So if you have a Child Support Agreement in place, it is a good idea to review the terms of that agreement. Especially in circumstances where there has been a decrease in the percentage of care of the eligible carer.

For further information, please do not hesitate to contact us at CopperTree Family Law on (02) 4369 6838 regarding Parenting Arrangements. Another resource is the Department of Human Services website.

The information below is from the Department’s website:

Guides to Social Policy Law
Department of Human Services
Child Support Guide
Version 4.34 – Released 13 August 2018

2.7.6 Suspending a Child Support Agreement Context

Child support agreements are binding on parents. However, from 1 July 2018, when the parent entitled to be paid child support is no longer an eligible carer of the child, the agreement may be suspended.

Acts references:

CSA Act section 5, section 7B, section 75, section 80D, section 80G, section 86, section 86A, section 93, section 151.

Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 Schedule 1 Item 74.

Suspension of child support agreements when a person is not an eligible carer:

Where there is no applicable role swap clause in a child support agreement, the agreement is suspended in relation to a child if:

• a party (the former carer) to the agreement who is entitled to be paid child support for the child (disregarding offsetting provisions under CSA Act section 67A) under the agreement is not an eligible carer of the child (CSA Act section 86(1)(a)), and

• the period during which the former carer has not been an eligible carer of the child is (CSA Act section 86(1)(b)):

– 28 days or less, or

– if CSA Act section 86(2) applies – 26 weeks or less, and

• a child support terminating event under CSA Act section 12(2AA) does not occur (where both parents are not eligible carers of the child and no non-parent carers are entitled to be paid child support in related to the child) (CSA Act section 86(1)(c)), and

• the former carer would otherwise continue to be paid child support for the child under the agreement despite ceasing to be an eligible carer (CSA Act section 86(1)(d)).

As long as the former carer ceases to be an eligible carer of the child, a suspension period may be in effect for up to 26 weeks (CSA Act section 86(1)(b)) if:

• the child support agreement provides that the agreement is to be suspended if a party to the agreement ceases to be an eligible carer of the child for a period of more than 28 days (CSA Act section 86(2)(a)), or

• after the former carer ceases to be an eligible carer, each of the parties to the agreement notifies the Registrar, before the end of the 26 week period, that the parties to the agreement want the agreement suspended for more than 28 days (CSA Act section 86(2)(b)), or

• the Registrar is satisfied that there are special circumstances in relation to the change in the care of the child (CSA Act section 86(2)(c)).

A suspension of a child support agreement, under CSA Act section 86, starts from the day the former carer ceases to be an eligible carer. An eligible carer has at least ‘shared care’ of the child, which is between 35 – 65% care of the child during a care period (CSA Act section 5(3) and section 7B).

The agreement may continue without suspension in relation to other children that the agreement relates to if the person does not cease to be an eligible carer of those children.

Effect of suspension of child support agreements

Child support agreements resulting in a section 34B assessment:

When a child support agreement is suspended and the agreement resulted in a section 34B assessment, child support would be paid according to a formula assessment to the parent who is the current eligible carer.

Child support agreements resulting in a section 93 assessment:

When a child support agreement is suspended and the agreement resulted in a section 93 assessment, child support is not payable for a child under a child support agreement where the agreement is suspended under CSA Act section 86 (CSA Act section 93(1A)). The liability for the child would be nil during the suspension period, as there was no prior assessment of child support before the Registrar accepted the agreement. However, CSA Act section 151(1A) provides an option to parties in such cases to elect to end the section 93 assessment and apply for a formula assessment. See 2.10.2 for further information about elections to end assessments.

Where a section 93 assessment is terminated under CSA Act section 151(1A) and the same parent who elected to end the assessment applies for a new formula assessment, the child support agreement is revived. If the parent entitled to be paid child support under the agreement is still not an eligible carer for the child, the agreement is suspended upon revival. The parent who is the eligible carer of the child may potentially receive child support payments under the formula assessment.

Apportioning during suspension period

If the agreement ceases to relate to a child because of the suspension, the apportioning amount worked out under CSA Act section 86A(2) continues to apply in relation to each of the remaining children to whom the agreement relates. See 2.7.1 for further information about apportioning amounts in child support agreements.

When suspension of child support agreements ends

If the former carer becomes an eligible carer of the child again within the 28 day (or up to 26 weeks in certain circumstances) period before the suspension ends, the child support agreement is no longer suspended. The assessment based on the agreement will resume its effect on the rate of child support payable to the parent entitled to be paid child support under the agreement.

If the 28 day (or up to 26 weeks in certain circumstances) period ends and the former carer does not become an eligible carer of the child again, the suspended agreement would terminate (CSA Act section 80D(2A) and section 80G(1B)). See 2.7.5 for further information about terminations of child support agreements.

When the party who makes the CSA Act section 151(1A) election, applies for an administrative assessment before the liability to pay child support under the agreement ends, the agreement is revived by CSA Act section 142(1B) (see 2.10.2). When the agreement revives, and the former eligible carer has not regained care, the suspension period resumes and will end 28 days (or up to 26 weeks) from the original suspension commencement date. If the former eligible care does not regain care within 28 days (or longer if an extended suspension period is in place), the agreement will terminate on the day the former carer ceases to be an eligible carer of the child (CSA Act section 80D(3)(d) and section 80G(2)(e)).

In some situations, an agreement has already been terminated after 28 days under CSA Act section 80D(2A) or section 80G(1B) and the parties to the agreement wish to extend the suspension period despite the agreement being terminated. The Registrar can use the general amendment of assessment power under CSA Act section 75 to reflect a change between termination and suspension where parents agree (within 26 weeks of the care change) to extend the suspension period beyond 28 days (CSA Act section 86(2)).

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