Don’s Family Law Blog

I was in Melbourne on the weekend taking in the food, football and cold. I met a young father who was grumbling about the state of his relationship with his 2 children, 2 and 4, now living in Sydney with their mother. He had tried to prevent the relocation but a Family Court judge had allowed the mother to leave with the children. The judge had permitted the relocation on the basis that a “happy mother makes for happy children”. The mother was now making contact with the children almost impossible.

Relocation is a massive topic and I will post more on it in the future.

The sentiment expressed by the judge was a commonly expressed one in past years. The amendments to the Family Law Act in July 2006 could have put an end to such inanity.

A primary consideration for a court is to understand the benefit of children having a meaningful relationship with both parents.

To remove a 2 or 4-year-old child from a parent and allow them to live at a distance will serve to deny a young child from developing an intimate relationship with both parents. In the case of my acquaintance from Melbourne, it seems the court sought to appease a mother who took the appeasement as a sign of weakness to be exploited. The father’s instincts were correct to move to prevent the relocation. Courts must ensure that children know both of their parents.

In 1999, 9.7% of all Queensland couples were living in defacto relationships.  The Australian Bureau of Statistics records that (for Australia) this increased to 12% in 2001 and 15% in 2006.

One the most important considerations for separating parents is the issue of ongoing financial support for a child/children after the breakdown of their relationship. The issue of child support is often viewed as a joint commitment to financially provide for the day to day care of those children until they attain the age of 18 years or alternatively until they become self supporting.* However, often one parent may require financial assistance in fulfilling their obligations for a child’s care.Child support can be resolved in three ways:-

1.         By informal agreement

Under this method, separated parents mutually agree to a child support arrangement that suits them both. This form of agreement is suitable for parents able to openly communicate and reach consensus as to their children’s needs and their individual circumstances. It is frequently not reduced to writing and is often a verbal agreement.

This arrangement can be disadvantageous in the event of disagreement between parents or a significant change in circumstances for one or both parents.

2.         By agreement registered with the Child Support Agency

Alternatively, parents may elect to enter a formal child support arrangement by way of a formalized child support agreement, filed with the Child Support Agency.

These agreements become binding in nature and provide a scheme of child support suitable to both parents.

The content of such agreements can vary greatly and are formulated on a case by case basis. Upon both parents executing this agreement and subsequently filing with the child support agency, it becomes a legally enforceable obligation.Parents considering entering into a child support agreement should always seek independent legal advice.

3.         Via assessment and collection by the Child Support Agency

In the absence of any agreement or informal arrangement, one or both parents may elect to use the services of the Child Support Agency (”CSA”) as a mechanism for calculating and collecting child support.

An application to the CSA may be made jointly or at the direction of one parent.

As of July 2008 the Child Support Agency will be introducing a new method of calculating levels of child support for Australian families. The new scheme and these changes are intended to reflect the changing face of Australian families. At a very simplistic level the CSA will undertake the following process when calculating what child support a parent should pay:

Step 1 - Assessing the available income for child support purposes.

This first step will look at all the sources of income available to both parents, including relevant deductions, and incorporate adjustments for such considerations as other dependent children and child support assessments.

Step 2 - Work out the combined child support income

Both parents income will be added together.

Step 3 - Work out income percentage.

After both incomes are added together a percentage of the total will be worked out for each parent. For example if Jo’s assessed income is $30,000 and Bill’s is $60,000, their total income is $90,000. Of that $90,000, Jo’s income percentage of that total is  33.33%.

Step 4- Work out your care percentage

The percentages for care arrangements can be obtained via the CSA website. The table will provide parents with an indication of their percentage care based on the number of nights the children are in their care.

Step 5 - Work out your costs percentage

The same table is used for both Steps 4 and 5. The CSA has calculated a cost percentage for parents based on the number of nights the children are in their care. This essentially provides a ‘picture’ of how of the cost of raising a child is met by a parent based on the time the child is in their care.

Step 6 - Work out child support percentage

This step looks at each parent’s income percentage (Step 3) and deducts the cost percentage (Step 5) for each child. For example if Jo is assessed as having 33.33% of the combined income and 100% of the care of the child/children, then her child support percentage is -66.67% (33.33%-100% = -66.67%). This means that Bill needs to provide 66.67% towards the determined cost of raising their child/children.

Step 7 - The costs of children

The CSA has now devised a table that clearly details the projected cost of raising children, depending on their age and the total number of children being supported (that being children of the same parents). The table clearly provides what the cost of raising each child will be.

Step 8 - Working out child support payable.

Each parent’s income percentage (Step 6) will be multiplied by the determined costs of raising that child. For example, Bill will be calculated as needing to pay 66.67% multiplied by the cost of raising that child. The calculated amount will equate to the child support payable.

The above steps are a guideline only. The new formula allows for a range of additional factors that may be taken into consideration on a case-by-case basis. Although the CSA website does provide a calculator, parents should talk with a CSA representative to obtain a full understanding as to how their individual assessment will be calculated.

What arrangement works for you?

The breakdown of a relationship can be a difficult time to discuss the future logistics of raising children. However, in reaching an early consensus about the children’s ongoing financial care, parents can reduce stressful interactions both in the short and long term.

When considering what is best for you and your child/children you may consider some of the following:

1. Do you want the child/ren to attend private schools? How much will it cost now, in five years or in ten years time?
2. What extra-curricular activities do you wish your child/children to participate in?
3. Do you want your children to have private health insurance?
4. Does your child/children have special needs?
5. Do you expect a change in your own circumstances in the near future?

Barry & Nilsson Lawyers is happy to provide our clients with advice and assistance throughout this decision making process.

For more information about the Australian Government’s child support scheme you should log on to the CSA website.

* Child support is payable until a terminating event occurs ie child turns 18. For full details see section 12 of the Child Support (Assessment) Act 1989.

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