It’s no secret that having a baby is a very expensive decision both in the short and long term.
Time spent away from work and the subsequent lost superannuation (and compound interest
on these) can make up the largest financial cost over time but the recent statistics show that
the average out-of-pocket expense for raising a child in Australia is approximately $170 per
week.
This figure also doesn’t include the costs incurred during the pregnancy which can vary wildly
depending on the decision to go with public or private coverage. For those in committed
relationships, these (amongst many others) become serious decisions that need to be
incorporated within the family unit.
However, for single and expectant mothers, the financial burden can be more difficult though
the law is here to provide some assistance. The Family Law Act provides that the father of a
child who is not married to the mother is liable to make a proper contribution towards her
maintenance and reasonable medical expenses in relation to the pregnancy and birth.
Further obligations to funeral expenses also exist if the mother or child die in the process.
The father’s liability is usually from up to two months prior to birth and continues until three
months after the child has arrived. However, this period can be extended if the mother has
been advised by a medical practitioner to cease working for reasons related to her
pregnancy.
Though there is some discretion in what is considered a ‘proper contribution’ – as a general
proposition the parents should pay half each and the mother is able to apply to the Court if
the father doesn’t agree to contribute. The Court can also make consideration towards any
money voluntarily paid by fathers throughout the pregnancy towards the mother’s expenses
and offset this against any calculated overall liability.
None of this absolves any child support obligations and, when safe to do so, parents should
always attempt to reach an agreement regarding pregnancy costs without the need for the
Court to get involved. However, single and expectant mothers should be comforted that the
law doesn’t leave them alone financially while they navigate the miracle of childbirth.
Joshua Noble is a Senior Associate at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes practising from our Cleveland office at Suite 3, Jade Chambers, 15 Middle Street, Cleveland. To contact Josh for advice, please phone
(07) 3385 0999 to schedule an appointment.
The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
Comments Off on Can I lock in my child support payments?
Can I lock in my child support payments?
It’s possible for parents to organise and maintain private agreements in relation to child support obligations and for this money to be paid either directly to the supplier (such as a school) or to the other parent’s nominated bank account. However, for parents wanting these arrangements to become locked in, consideration should be given to executing either a Binding Child Support Agreement (Binding CSA) or a Limited Child Support Agreement (Limited CSA).
A Binding CSA or Limited CSA can include various forms such as an ongoing amount and/or specific ‘non-periodic’ payments such as tuition fees.
When parties enter into a Binding or Limited CSA, it is important to consider the following:
A Binding or Limited CSA cannot be varied but can only be terminated or set aside by a Court so it is important to ensure the Agreement is perfect before signing;
A Binding CSA requires each parent to obtain independent legal advice as to the effect and advantages/disadvantages of the Agreement for it to have any effect. However, a Limited CSA doesn’t require legal advice though the agreed payment must be equal to or greater than the ordinary assessed amount of child support;
There are limited circumstances where a Court may set aside a Binding or Limited CSA. The most common are if the Agreement was obtained by fraud, without free and willing consent of one or both parents or if there has been a significant change in circumstances to a parent or child as a result of exceptional circumstances;
Parents should ensure that they fully understand the terms and effects of a Binding or Limited CSA and be aware of the estimated payable amount otherwise assessed by the Child Support Agency. A Limited CSA requires there to be an administrative assessment in force in relation to the child of whom the Agreement is made; and
Either parent might have a change in annual income in the foreseeable future making any Binding or Limited CSA more or less advantageous.
If the parents cannot reach a private agreement, collection is available via Services Australia. However, for parents looking to lock in each other’s financial contributions towards raising the children, a Binding or Limited CSA should be given serious consideration.
Joshua Noble is a Family Law Solicitor at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Joshua for advice, phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
Considering the vast distances dividing Australia’s major population centres, the advent of high speed internet connectivity and the highly mobile nature of the Australian community as a whole, it is little wonder that the breakdown of family relationships bring many parents into conflict over where the now separated family is to live. Work commitments or career advancement opportunities after separation regularly put parents in need of moving to different towns or cities and many parents who previously agreed to move away from their home towns as part of intact nuclear family units understandably wish to move back for the support of extended family when the immediate family unit is no more.
When the parents cannot agree on these relocation issues, the Australian Family Court has the power to decide who can stay and who can go, but beyond these primary issues there are many other things to consider:
Who pays for the cost of seeing the children – there is definitely no principle in Family Law to say that the parent who moves away (with or without the children) must be the parent who is obliged to pick up the cost of the children continuing to spend time and communicate with the other parent who did not relocate. What Family Law principles do say is that each parent is duty bound to do everything reasonably necessary to ensure that children continue to spend time and communicate with both of their parents and consequently it continues to be a responsibility of both parents to pick up the added cost of long distance parenting, but only to the extent that it is reasonable to do so. What is reasonable of course depends on the facts of each and every case.
Impact of higher costs of long distance parenting on Child Support Assessments – if the relocated parent wishes, they can have the Child Support Agency consider reducing the amount of their standard Child Support Assessment to take into account the cost that parent is now paying to see the children for:
transport
accommodation
telephone expenses; and
internet and the like.
Like most things however, there are conditions:
the costs to be considered are only those costs which exceed 5% of the parent’s adjusted child support income;
food, clothing and entertainment costs are unable to be claimed; and
if the parent is only seeing the children between 52 and 127 nights per year, only transport costs can be considered. Accommodation, telephone and internet etc costs are all excluded.
Justification for the 5% threshold works on the assumption that the cost would be of an insufficient magnitude to peak above the usual ebb and flow of the day to day household living costs. The justification for excluding food, clothing and entertainment etc costs stems from the fact that these costs are part and parcel with the usual costs the parent would have been paying for the children whether at home or away. The restriction to transport costs only for the 52 – 127 night care arrangement is not readily explicable, but possibly stems from a concern to ensure that child support payments needed for children’s day to day sustenance costs such as food and clothing in the primary parent’s household are not gauged and diverted to pay for expensive hotel rooms.
Deductions for these costs from child support are not automatic, the claiming parent must make application to the Child Support Agency for a review of his/her assessment via the standard child support review process. In adjudicating on this decision, the Agency will give the other parent a right of reply and will require full documentary evidence to support all of the claim and again, will only allow those expenses which are considered to be reasonable in all of these circumstances.
Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes to contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
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Following the breakdown of a relationship, any parent who retains the care of a child under the age of 18 years is entitled to receive financial support from the child’s other biological parent to assist with the day to day cost of living. These payments are assessed and child support assessments can add up to many tens of thousands of dollars and so in circumstances where a father believes he may not actually be the biological parent of a child, there is an understandable motivation to establish in truth, who the child’s father really is. Paternity is also important for considerations such as medical histories of familial genetic disorders such as diabetes, cancer etc and any psychological welfare of the child which might be linked to questions over self identity.
Under our current legal system, a male person will be legally recognised as the parent of a child if he signed the application for issue of the child’s birth certificate, legally adopted the child at any subsequent stage or the child was conceived at a time when the man was in either a marital or de facto marital relationship with the mother.
In the adoption scenario, the biological father becomes irrelevant as the adopted father is then legally recognised as if he was the biological father. In all other scenarios, the legal recognition of the male person as the biological father can be extinguished by application to a Family Court Judge. These applications are typically called Applications for Non-Paternity Orders. In the old days, these applications involved fairly colourful evidence about elicit affairs, secret liaisons, phone tapping, private investigators, photographs and the like. Thankfully, these days with the development of scientific DNA testing techniques, all of the stress, trauma and cost of these styles of applications can now be avoided.
Put simply, the DNA testing procedure takes a sample of genetic material (usually a swab taken from the inside of the mouth) from the mother, the child and the suspected father. The procedure relies upon the scientific discovery that every child inherits precisely one half of their DNA make up from their mother and the other half from their biological father. As the biological mother and child are obviously known, a DNA test simply therefore looks at that portion of the child’s DNA which is not referable to the mother and compares it with the DNA of the alleged father. If the DNA matches then the alleged father is concluded to be the biological father with 99.99% certainty. If not, then the test concludes with 100% certainty that the alleged father could not have parented the child.
To gain an Order for paternity testing, an Applicant (be it by the mother or the father) merely needs to provide the Court with some plausible evidence that there may have been a different father responsible for conceiving the child. A sworn Affidavit from the mother or the father about an alternate male partner at the time of the child’s conception will usually be sufficient. With this evidence, the Court will then typically make Orders obligating the mother, the child and the suspected father to undergo the DNA test. Because the Family Court does not have the power to sanction an assault, neither the mother or the father can be forced to deliver up a sample of DNA however a refusal by either parent gives the Court special powers to draw an inference of guilt by avoidance and make an Order that the suspected father is the biological father, even though the test was never performed.
If all of the persons participate in the DNA test, the cost of the test is currently around $800.00 – $900.00 and results take approximately 10 working days. Special procedures in the testing labs insure that false samples cannot be provided and both the Court and the parties have the liberty to make Orders compelling one or either of the parents to pay for the test or for the cost for instance to be shared equally initially with the suspected father then either forced to reimburse the mother for her half of the cost if the test is positive and for the mother to reimburse the father if the test is negative.
Once the test results are known and delivered back to the Court, the Court can then make the Order of paternity or non-paternity based on the test conclusions. If non-paternity is concluded, then the Child Support Act states that the father is immediately entitled to recovery of all money paid to the mother on account of child support from the point of the very first dollar paid under any assessment which is issued. The Court however, has a discretion as to how these payments are to be made and may choose between the options of either a lump sum, a periodic amount or possibly even an off-set of these amounts against child support due against other biological children for which paternity between the father and the mother is certain.
So far cases which have gone before the Courts however, have confirmed that any voluntary payments (ie. an amount outside or beyond the amount which has been assessed as payable) being made from the non-biological father to the mother for the support of the child cannot be ordered to be reimbursed.
Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
