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When Am I Required to Pay Child Support or Child Maintenance?

According to the law, parents are required to financially support their children. This duty is considered paramount over all other responsibilities and obligations that a parent may have, apart from the duty of a parent to support themselves and other children. The law considers all children of a parent equal. If a parent is not living with their child, they may be required to pay child support or child maintenance.

Am I required to pay child support or child maintenance if a woman says I am the father?

Some men may find themselves in a position where a woman asserts that they are the father of a child and that they are accordingly required to pay child support or child maintenance. However, the man may have doubts about the child’s paternity. What options are available if you find yourself in such a position? What can be done if you have doubts that you are the child’s father and suspect that the woman is, in fact, trying to extort money from you? How is child support or child maintenance assessed and enforced?

Fortunately, the Family Law Act 1975, provides for situations in which there are doubts about the paternity. A DNA test can be completed to resolve the dispute under sections 69V and 69ZD of the Family Law Act 1975. According to 69W of the Family Law Act 1975, a party can make an application to the court to have a parentage test carried out which will resolve doubts about paternity. You may wish to make an application under this section if you have doubts about the paternity of a child for whom you are being asked to pay child support.

The Family Court has the power to make an order requiring a parenting testing procedure to be carried out, and the ability to place parameters around how the test should be performed, to ensure the test is reliable. After the test has been carried out and a result shows that you are the parent, Services Australia will make a determination about the amount of child support that is required to be paid. If the result is negative, and it is determined that you are not the father of the child, then you will not be required to pay child support.

If I live abroad or overseas, am I required to pay child support or child maintenance?

Many jurisdictions reciprocate Australia’s laws in relation to child support and child maintenance. A list of these jurisdictions can be found in schedule 2 of the Child Support (Registration and Collection) Regulations 2018 (Cth). Services Australia can make a determination about what should be paid if you live in these jurisdictions, and you are required to fulfil these obligations. If you live in a country that does not reciprocate Australia’s laws, then it is still possible for the Family Court of Australia to issue an order that requires you to pay child maintenance.

How long am I required to pay child support or child maintenance?

Child maintenance payments are no longer required to be paid once one of the following events takes place:

  • The child or the provider of maintenance dies;
  • The child marries, is adopted or enters into a de facto relationship; and
  • The child turns 18 unless the order extends beyond this period. It should also be noted that the Family Court may order that child support is paid to a child over the age of 18 if they are still dependent on their parents, e.g. if they are full-time students.

Am I required to pay child support or child maintenance if I am not the biological father or parent of a child but a step-parent?

In some limited circumstances, where the Family Court finds that it is appropriate, a step-parent may be required to pay maintenance for a child. Sections 66M and 66N of the Family Law Act 1975 concerns such situations.

What factors are taken into account when determining what child support or child maintenance I am required to pay?

The matters that are considered in assessing what should be paid for child maintenance are set out in sections 66H and 66J of the Family Law Act 1975 and include;

  • The financial resources, income and earning capacity of the person from whom it is sought;
  • The age of the child and their financial needs;
  • The education the child is receiving, and the parents expect the child to receive;
  • Any special needs the child has, such as those relating to health conditions;
  • Published research about the costs of raising children.

A parent’s capacity to pay will also be considered.

What happens if I fail to pay child support or child maintenance that I am required to pay?

Failing to pay child support or child maintenance can be enforced in a number of ways. Your employer may be ordered to make deductions from your pay and pay this directly to Services Australia so it may be passed on to the child. Deductions may also be made from your tax return. The Australian Tax Office may retain funds that would otherwise be returned to you by way of a tax refund and use that money to pay Services Australia so that this money can be passed along to the child.

Refusing to pay child support can also result in travel restrictions being placed on a person. Services Australia can prevent a person from leaving the country if they have not paid child support or child maintenance payments that are owing. Court orders may be issued to collecting payments. Criminal proceedings can also be brought in circumstances where fraud or other crimes are being committed in relation to child support or child maintenance payments.

What if you are not happy with a Child Support Assessment?

If you are dissatisfied with an assessment of how much child support or child maintenance you are required to pay, you can contact Services Australia directly with your complaint. You may also apply to the Administrative Appeals Tribunal for an external review of the assessment.

Private agreements for child support

Parents may make agreements between themselves about how much and how child support is to be paid. These agreements can be in the form of a Binding Child Support Agreement or a Limited Child Support Agreement. Binding Child Support Agreements can be enforced by the Federal Circuit and Family Court of Australia. They require all parties to the agreement to receive independent legal advice. They cannot be altered. However, they can be ended and replaced with a new Binding Child Support Agreement.

Before Limited Child Support Agreements are entered into an assessment for child support needs to be obtained. The amount of child support payable under the agreement must be more than the amount that is assessed. In certain situations, these Limited Child Support Agreements can be terminated by either party. Independent legal advice is not required to be obtained by each party before entering into these agreements.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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