Parenting after Separation and Child Support

Based on the SA Law Handbook published by the Legal Services Commission of South Australia, as amended by Legal Aid NT. Dates indicating the most recent revision are noted at the end of the sections below.

Parenting Arrangements after Separation

Arrangements for children

The Family Law Act 1975 (Cth) encourages parents to resolve disputes without going to court and, where possible, to have cooperative and shared parenting after separation.

Family law proceedings for all children, whether their parents are married or not, are covered by Part VII of the Family Law Act 1975 (Cth) and all references in this section are to this Act unless stated otherwise.

Under the Act, each parent has parental responsibility for their children until they turn 18 (or earlier if the child marries) [s 61C]. This responsibility is not diminished by any orders made in respect of the parenting of the child except to the extent specifically provided in the order.

The Commonwealth Attorney-General's Department has a comprehensive guide titled Parenting Orders - What You Need to Know.

The Federal Circuit and Family Court of Australia has prepared a range of resources for families involved in family law proceedings, including:

• a video titled How the court process works for parenting cases
• Kids' Corner, a dedicated online space for children involved in family law court proceedings.

[Last Revised on 23 Oct 2025]

Coming to an agreement

Most separating parents can arrange between themselves where their children will live and other parenting issues without taking the matter to the Federal Circuit and Family Court of Australia. Solutions reached in this way usually suit everybody better than a decision imposed by the Court. Court can also be more expensive, time consuming and stressful than reaching agreement together.

Everyone applying to the Court for a parenting order must attend, or attempt to participate in, family dispute resolution, unless an exception exists under s 60I(9) of the Family Law Act 1975 (Cth).

Section 60I certificate

An application to the Court for a parenting order must include a certificate issued by a family dispute resolution practitioner [s 60I(7), (8)]. The certificate will say one of the following:

• that the applicant did not attend family dispute resolution because the other party refused or failed to attend
• that the applicant did not attend or did not complete family dispute resolution because, in the opinion of the practitioner, it would not be appropriate for them to do so
• that the applicant attended family dispute resolution and all attendees made a genuine effort to resolve the issues in dispute, or
• that the applicant attended family dispute resolution but that either they or the other party did not make a genuine effort to participate.

A certificate from a family dispute resolution practitioner is not required where [s 60I(9)]:

• the applicant is seeking a consent order (an order where both people have made an agreement)
• the application is in response to an application made by another person
• the situation is urgent, for example a child has not been returned or is missing
• one or more of the people involved cannot attend family dispute resolution because of ‘incapacity’ (which includes a person being unwell or living with a disability) or they live too far away from a family dispute resolution service
• there are reasonable grounds to believe that there has been (or there is a risk of) abuse of the child or family violence
• a court order made in the previous 12 months has been broken and the court finds that the person who broke it has shown a serious disregard for their obligations under the order.

Once proceedings have started, the Court must still consider ordering the parties to attend family dispute resolution even if a party can prove one of the above exceptions applies to them.

Dispute resolution is about people coming together to talk about their differences and trying to reach agreement. This can happen with all the people involved talking in the same room, or it may be able to happen separately if people do not wish to see each other. Where children are involved, the aim of family dispute resolution is to reach an agreement about what is in the best interests of the children.

Options for family dispute resolution

For a list of family dispute resolution services in the Northern Territory, see the Family Dispute Resolution Provider Register maintained by the Commonwealth Attorney-General's Department. Agreements reached may then be made into parenting plans or consent orders.

Legal Aid NT provides legally assisted family dispute resolution, called conferencing, through its Family Dispute Resolution Service. To use this service, at least one party must be eligible for legal aid for conferencing. Usually, both parents and their lawyers are present. Agreements reached may then be made into consent orders.

If you are not eligible for legal aid, you can go to a Family Relationship Centre or other family dispute resolution provider as outlined above.

National Legal Aid has developed an online service that helps separating couples reach agreement themselves about parenting and property issues. This low-cost service allows parties to reach and record agreements on a trusted secure online platform. For more information see amica website.

Who can provide a Family Dispute Resolution certificate?

Only registered Family Dispute Resolution Practitioners can provide certificates establishing whether or not dispute resolution has been attempted. Whilst there are many services that can provide family dispute resolution such as mediation and counselling, not all are registered practitioners. The main agencies which provide these services, such as the Family Relationships Centres, Relationships Australia and Anglicare, are registered. See the online Family Dispute Resolution Provider Register.

While an invitation to negotiate through amica may result in a formal resolution, if it does not work out, participation through amica does not qualify as family dispute resolution for the purposes of obtaining a s 60I certificate.

What happens if parents agree about the children?

There is no need for the Court to ratify decisions or make formal orders if parents agree. Agreements can be verbal, but parents are encouraged to prepare written parenting plans to help avoid disputes about arrangements for children. Family dispute resolution services or amica can assist with preparing parenting plans.

Is family dispute resolution right for every situation?

Family dispute resolution may not be suitable for every situation. Family dispute resolution is not recommended:

• where there is a history, allegation, or risk of family violence or child abuse
• where one person cannot make decisions on an equal basis with the other because they feel intimidated or unsafe
• in urgent situations, for example, if children have not been returned from a visit, or if one party thinks that the other might take or damage property that they are entitled to
• where one person refuses to participate
• where the ability of one of the parties to participate is affected by mental illness or drug or alcohol misuse.

Is family dispute resolution confidential?

What is said during family dispute resolution sessions is usually confidential and not admissible in court. However, a family dispute resolution practitioner may (but does not have to) give information to the Court if they believe it:

• necessary to protect a child from harm (either physical or psychological)
• necessary to protect someone’s life, health or property
• may prevent a crime involving violence or threats of violence
• will assist a lawyer independently representing a child’s interests.

Are parenting plans legally binding?

Without being filed in the Court as consent orders, parenting plans have no legal force. However, if the parties are later before the Court, the Court will consider the terms of the latest parenting plan. After reaching an agreement, some people prefer to apply to the Court for a binding order. This can be done by preparing a consent order. The Court has an Application for Consent Order Kit but parties should get independent legal advice first.

Can a party still apply to the Court for orders after agreeing to a parenting plan?

Yes, a party can still apply to the Court for parenting orders. However, the first stage of the process for all applicants will still involve attending family dispute resolution and/or obtaining a section 60I certificate, as outlined above. Although not legally binding, the Court will also consider the terms of the latest parenting plan.

What if the parties want to change orders?

If both parents agree on how orders should be changed, then they can:

• enter into a parenting plan in writing (unless the original orders say that any variation must involve the Court) [Family Law Act 1975 (Cth) s 64D]; or
• apply to the Court for consent orders, unless the original orders say that any variation must involve the Court.

Where only one parent seeks a variation, an application must be made to the Court with evidence to justify the variation. Usually there needs to be a significant change in circumstances, and the first stage of the process will still involve attending family dispute resolution and/or obtaining a section 60I certificate as outlined above.

[Last Revised on 02 May 2024]

Applying for Parenting Orders

What is a parenting order?

Regardless of their relationship status (married, never married, separated or divorced), all parents have legal responsibility for their children until they turn 18, unless a court orders otherwise.

Court orders relating to children are known as parenting orders. Parenting orders cover all aspects of care and welfare arrangements for children.

Applications for parenting orders can be made in the Federal Circuit and Family Court.

Terms such as “contact” and “residence” were used previously but the court now uses the terms “spends time with” and “lives with”.

Other specific types of parenting orders include:

• Location Order — to find where a child is living
• Recovery Order — to return a child to a parent or guardian

When the court makes a parenting order, the Family Law Act 1975 (Cth) requires it to regard the best interests of the child as the most important consideration [s 60CA].

From 6 May 2024, the court no longer presumes that it is in the best interests of a child for their parents to have equal shared parental responsibility. Parents are nevertheless encouraged to consult each other and make decisions together about major long-term issues where it is safe to do so, unless the court orders otherwise [s 61CA]. Major long-term issues might include education, religious and cultural upbringing, and medical treatment.

From 6 May 2024, the court is also no longer required to consider ordering a child to spend equal time with each parent. This was previously required if an order for equal shared parental responsibility was made.

The court may nevertheless consider equal time arrangements, or substantial or significant time arrangements, if it is in the child’s best interests.

The Commonwealth Attorney-General's Department has a comprehensive guide on Parenting Orders - what you need to know.

[Last Revised on 3 May 2024]

Who can apply for parenting orders?

Most disputes concerning children are between the parents of the children. However, anyone who is concerned about the care, welfare or development of the child may apply to the court [Family Law Act 1975 (Cth) s 69C(2)(d)].

This could include:

• grandparents
• aunts and uncles, and
• new partners of either parent.

For the court to have jurisdiction with respect to a child, the child and at least one of the parties to the application must be

• present in Australia
• an Australian citizen or
• ordinarily residing in Australia.

The court does not have the power to make any orders in relation to a child who is outside Australia, including situations of international parental child abduction.

[Last Revised on 3 May 2024]

Can children apply?

Children can also apply for parenting orders (not including child maintenance orders) from the Federal Circuit and Family Court [Family Law Act 1975 (Cth) ss 64B and 65C(b)].

A child who applies for parenting orders must have a case guardian (also known as a next friend), unless the court is satisfied that the child understands the nature and possible consequences of their case and is capable of conducting it. If a child applies without a case guardian, the court may appoint one [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.13]. Any adult that has no interest adverse to that of the child and who can fairly and competently conduct the case for the child may consent to being a case guardian [r 3.14].

The court may order the case guardian to pay costs [r 3.13] or that costs of a case guardian be paid by another party to the proceedings or from the income or property, if any, of the child [r 3.18].

[Last Revised on 31 Aug 2021]

What needs to be done before applying?

Before any action is taken in the Federal Circuit and Family Court, certain steps must usually be taken (called pre-action procedures), unless the matter is exempt or potentially exempt from this requirement. These steps are designed to ensure that reasonable attempts are made to resolve the matter without going to court.

Family dispute resolution required for all parenting order applications

Before bringing an application for parenting orders, both parties must attempt to resolve their dispute by family dispute resolution, unless an exception applies [Family Law Act 1975 (Cth) s 60I(8)]. See Coming to an agreement for more information.

Pre-action procedures

There are also pre-action procedures set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 1. These need not be complied with where there is a risk of family violence, urgency, undue prejudice or there has been a previous application in the same cause of action in the last 12 months [r 4.01(3)].

At the time of filing an application to start a proceeding, each party must file a Genuine Steps Certificate outlining:

• the party's compliance with the pre-action procedures and the genuine steps taken by them to resolve the dispute, or
• the basis of any claim for an exemption from compliance from either the pre-action procedures or other genuine steps.

The pre-action procedures are set out in Schedule 1 to the Rules. They require the following (if it is safe to do so):

• The person considering filing an application must give a copy of the pre-action procedures to the other party, make inquiries about family dispute resolution services available and invite the other party to participate in family dispute resolution.
• Each party must cooperate for the purpose of agreeing on an appropriate family dispute resolution service and make a genuine effort to resolve the dispute by participating in the dispute resolution.
• If dispute resolution is successful, and the parties reach agreement, they may arrange to formalise the agreement by filing an Application for Consent Orders.
• If dispute resolution is unsuccessful, before filing an application, the proposed applicant must notify the other party of their intention to start a proceeding in writing, stating:
  • the issues in dispute,
  • the orders that will be sought if a proceeding is started,
  • a genuine offer to resolve the issues, and
  • a time at least 14 days after the date of the notice within which the proposed respondent has to reply.
  • The proposed respondent must reply in writing within the required time, stating whether the offer is accepted and, if not, setting out:
    • the issues in dispute,
    • the orders that will be sought if a proceeding is started, and
    • a genuine counter-offer to resolve the issues, and
    • a time at least 14 days after the date of the reply within which the proposed applicant has to reply.

It is expected that a party will not start a proceeding by filing an application unless the proposed respondent does not respond to a notice of intention to start a proceeding, or if no agreement can be reached after a reasonable attempt to settle the matter by the required correspondence.

Schedule 1 also sets out that both parties must comply, as far as practicable, with the duty of disclosure set out in rule 6.01. This means that each party will disclose to the other all information that is relevant to the issues in dispute in a timely manner. Copies of relevant documents such as medical reports and school reports should be exchanged. Sub rule 6.05(2) lists relevant documents that must be disclosed in parenting proceedings.

Anyone who does not comply with these requirements (unless exempt under sub rule 4.01(2)) risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management and may stay a proceedings pending compliance.

The court expects parties to take a sensible and responsible approach to pre-action procedures and parties must not use the pre-action procedure for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay). Parties must not raise in their correspondence irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position [see Schedule 1 to the Rules].

For more information, see the Court's brochure Before you file - pre-action procedure for parenting cases.

[Last Revised on 17 Sep 2021]

What will it cost?

Court fees

For the current court fees, and information about seeking a reduced fee on the basis of your financial hardship, visit the Federal Circuit and Family Court website.

Legal costs

Generally, parties involved in family law proceedings pay their own legal costs.

Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) describes the costs solicitors may charge for work done in family law proceedings. Under rule 12.17, costs may be charged in accordance with a costs agreement or, if there is no costs agreement, in accordance with the Itemised Scale of Costs [see Sch 3].

When making a costs agreement with a client, a lawyer must advise the client to obtain independent legal advice about the costs agreement. If the client agrees to enter into a costs agreement, the costs to be charged must be set out in a written agreement signed by the client and the solicitor.

Costs orders

In certain circumstances, the court may make a costs order against a party, either on application or of its own motion .

From 6 May 2024, parties and their lawyers may be liable for costs if they have failed to meet their statutory duty to conduct proceedings in a manner consistent with the overarching purpose of family law. Section 95 of the Family Law Act 1975 (Cth) provides that the overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

• in a way that ensures the safety of families and children
• in a way that promotes the best interests of the child (if applicable)
• according to law, and
• as quickly, inexpensively and efficiently as possible.

Section 96 requires parties and lawyers to conduct proceedings (including negotiations for settlement) in a manner consistent with the overarching purpose. When considering whether to make a costs award, the court must consider whether the parties have failed to comply with this duty, and may award costs, including costs against a lawyer personally, accordingly.

Disputing costs

Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the process for disputing costs.

Party to party costs

Only disputes about costs between parties (i.e. party to party costs) can be adjudicated by the Federal Circuit and Family Court. Where a party wishes to dispute the costs awarded to or against them, a Notice Disputing Itemised Costs Account must be served on the other party within 28 days of being served with the account.

The parties to the dispute must make a reasonable and genuine attempt to resolve the dispute [r 12.37]. If the dispute cannot be resolved, either party can take it to court by filing the itemised costs account and a Notice Disputing Itemised Costs Account with the court no later than 42 days after the Notice Disputing Itemised Costs Account was served.

Lawyer/client costs

Disputes between lawyers and clients regarding costs are no longer dealt with by the Federal Circuit and Family Court. Where a person has a dispute with their lawyer regarding costs, they can contact the NT Law Society and ask for mediation and/or a costs assessment (website).

[Last Revised on 3 May 2024]

How soon will the court hearing take place?

Timeframes for hearings may vary depending on the nature of the application, how many matters the court already has listed, and whether the application was lodged during a busy time of year (such as the Christmas and New Year period). Unless the matter is urgent, it is generally first heard approximately 6 weeks after the application was filed. The parties can represent themselves, and anyone over the age of 18 years can attend.

In certain emergency situations - for example, when one parent fails to return the child to the other parent in accordance with a court order, parenting plan or the child’s long term living arrangements - an application for an urgent hearing can be made.

Limited police involvement

Even if the other party is breaching existing court orders, the police will not get involved unless there is another court order authorising them to do so. If you are concerned about a child’s welfare, you can ask the police to check on the child, but usually they cannot do more than that without the court specifically authorising them to. You therefore need to apply for an urgent hearing.

Urgent hearings

The application must be filed with the court and served on the other party immediately, and the matter is heard as soon as possible.

Applications forms and what orders to seek

If there are no current court proceedings, you need to use anInitiating application form. All family law applications go to the Federal Circuit and Family Court. You will have to ask for final orders (for example, that the child lives with you) as well as interim orders. The interim orders you should ask for include an order that the application be heard urgently. You may also need to seek orders that the other person return the child immediately, that the parties be restrained from changing the child’s place of residence, and that the child’s name be added to the Family Law Watch List. You will need to file an Affidavit with your application, in which you explain why the matter is urgent and why you are asking for those orders.

If there is already a case going through court, the form to use is an Application in a Proceeding, together with an Affidavit.

Ex parte hearings

In cases of extreme urgency - for example, where it is feared that a child may be taken out of the country – you can ask the court to make an order before you have served the application on the other party. This means that the other party is not given notice of the hearing, so the hearing is held ex parte (in the absence of the other party). The court usually wants to hear from both parties, so ex parte orders are rarely made.

Passports and police warrants

As with any application, the court can order the surrender of passports (including the child's), and may issue a warrant to authorise the police to stop and search any vehicle, vessel or aircraft, or enter and search any premises, in order to take possession of a child.

To finalise a matter

Ordinarily, a matter takes about 18 months to progress from application to trial.

If the court is unable to hear the matter at the time it is listed for trial it may be put off for a further two or three months.

There is however provision for a matter to be listed for trial urgently in certain circumstances. The procedure is to write to the Judges Listing Committee requesting an urgent listing and setting out convincing reasons. Of course there is often a wide gap between the court's perception of urgency and that of the parents. If the Committee is satisfied that the case is urgent, they will give the matter an early pre hearing conference date leading to a trial in a much abbreviated time.

In general, an urgent trial listing should not be expected where the issue of urgency can be adequately addressed by interim orders addressing the situation until trial.

[Last Revised on 7 Nov 2018]

How does the Court make decisions?

The Court applies Part VII of the Family Law Act 1975 (Cth), which relates to children.

Section 60B of the Act sets out the objects of Part VII. Part VII is intended to:

• ensure that the best interests of children are met, including by ensuring their safety, and
• give effect to the United Nations Convention on the Rights of the Child.

When the court makes a parenting order, the Family Law Act 1975 (Cth) requires it to regard the best interests of the child as the most important consideration [s 60CA].

How does the Court work out what is in the best interests of the child?

Pursuant to s 60CC, in deciding what is in the best interests of a child, the court must consider:

• what arrangements would promote the safety (including safety from family violence, abuse, neglect or other harm) of the child and each person who cares for the child
• any views expressed by the child
• the developmental, psychological, emotional and cultural needs of the child
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
• the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so
• anything else relevant to the particular circumstances of the child.

In considering these matters, the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order intervention order that applies or has applied to the child or a family member [s 60CC(2A)].

Where orders are being made with respect to an Aboriginal or Torres Strait Islander child, the court must also consider [s 60CC(1)(b), (3)]:

• the child’s right to enjoy their culture, by having the support, opportunity and encouragement necessary
  • to connect with their family, community, culture, country and language, and
  • to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views, and
  • to develop a positive appreciation of that culture, and
  • the impact a proposed parenting order may have on that right.

Harm and Unacceptable Risk

In considering what parenting orders to make, the Court is required to determine both:

• Whether any allegations of abuse or family violence are proven on the balance of probabilities [Evidence Act 1995 (Cth) s 140, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, M v M (1988) 166 CLR 69], and
• Where there is no proven abuse or family violence, whether there is an unacceptable risk of harm or family violence [Family Law Act 1975 (Cth) s 60CG, Isles & Nelissen [2022] FedCFamC1A 97].

In the case of Isles & Nelissen [2022] FedCFamC1A 97, the Court on appeal clarified that the test for ‘unacceptable risk’ is not proof on the balance of probabilities but rather the “assessment of risk is an evidence-based conclusion and is not discretionary… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not” [at paragraph 85]. The Court stated [at paragraph 7]:

“Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible to scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.”

On the question of what evidence is, or should be, admissible on this issue, the Court stated [at paragraph 105]:

“Any evidence which is relevant to and influential in that predictive inquiry is admissible and should be taken into account (presuming it survives any other applicable rules of evidence), regardless of whether it meets the definition of and the threshold requirements for admissibility under the tendency rule.”

Ultimately, the Court must make orders that are in the best interests of the children and an evidence-based finding of unacceptable risk is one of the many considerations in the exercise of this discretionary power [at paragraph 85].

Supervised Contact

Supervised contact means that the Court wants a responsible third person present when a parent spends time with their child. The Court may decide it is appropriate that a parent spend supervised time with their child because:

• there are allegations of family violence and concerns about the child’s safety in the parent’s care (including a finding of unacceptable risk);
• the child has not seen the parent for some time, and the Court thinks that a gradual reintroduction will help;
• there have been claims that the child is afraid of the parent;
• the separated parents are experiencing high levels of conflict;
• the supervised parent needs the help of another person to care for the child;
• the child has asked to have someone else present.

Supervised contact may be ordered by the Court at the end of court proceedings (in a Final Order) or at any point during proceedings (in an Interim Order).

Supervised contact can be done privately through another family member or a friend, through a privately engaged supervisor or through a Family Contact Service. A Family Contact Service is a neutral place where a parent and child can spend time together in a safe environment.

There are a number of Family Contact Service providers in the Northern Territory, depending on where the parties are located. Some Family Contact Service providers include Anglicare NT and Catholic Care NT.

[Last Revised 3 May 2024]

What needs to be disclosed?

Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner. This duty starts at the pre-action procedure stage before the case commences and continues until the case is finalised.

In South Australia, a Notice of Child Abuse, Family Violence or Risk must be filed with any initiating application, response, or application for consent orders for parenting matters in the Federal Circuit and Family Court of Australia.

In attempting to resolve a parenting dispute, parties should also, as soon as practicable, exchange copies of documents in their possession relevant to an issue in dispute (e.g. medical reports, school reports, letters, drawings, photographs).

Any documents that have been disclosed can only be used for the purpose of resolving the dispute for which they were disclosed.

[Last Revised on 1 Sep 2021]

What about the children's views?

In making any decision about a child the court must consider any views expressed by the child [Family Law Act 1975 (Cth) s 60CC(2)(b)]. The weight the court will give to the child's views will depend on any factors the court thinks relevant, such as the child's maturity and level of understanding.

There is no rule that says that children of a particular age can make independent decisions about where they live. There are a number of reasons for this, including the fact that age does not necessarily always match maturity. Children often express to each parent a wish to live with them, but may do so out of concern to maintain close contact with that parent and not to lose them from their lives, rather than with an adult understanding of the consequences.

Practical issues may arise when orders are made in respect of children aged 16 and older. A child of 17 years is unlikely to be forced to follow a parenting order about where they should live. In these circumstances, resorting to the court to enforce an existing order may be ineffective.

Children do not give evidence to the court, and the Judge will not usually see or speak to the children. The children's wishes are ascertained via a Court Child Expert providing a family assessment, or through the appointment of an Independent Children's Lawyer.

The Federal Circuit and Family Court has prepared a video titled How the voice of the child is heard?

[Last Revised on 3 May 2024]

Do the children get a lawyer?

The court may order (of its own motion, or when a child or any other person or organisation concerned with the child's welfare applies) that the child's interests be independently represented [Family Law Act 1975 (Cth) s 68L].

In the case of __Re K [1994] FamCA 21; (1994) FLC 92-461__ the Full Court of the Family Court laid down extensive guidelines for cases in which an independent children’s lawyer should be appointed. A lawyer may be appointed where:

• there are allegations of abuse of the child
• there is intractable conflict between the parties
• the child is alienated from one or both parties
• there are cultural and religious differences between the parents
• there are concerns about the mental or physical illness or personality disorder of either parent
• neither party seems to be a suitable residential parent for the child
• a child of mature years indicates that they do not wish to have contact with one parent
• there is a threat of removal of the child from the jurisdiction
• the determination of the case may involve separation of siblings, or
• neither party is represented.

An independent children’s lawyer does not act on instructions from the child and, in this sense, is not the child's lawyer [Family Law Act 1975 (Cth) s 68LA(4)]. Rather, they gather evidence to be presented to the court to help it determine orders that will be in the best interests of the child.

The independent children’s lawyer may propose any orders they consider to be in the best interests of the child. They may choose to support or oppose orders proposed by either of the parents.

From 6 May 2024, an independent children’s lawyer must meet with the child and give them an opportunity to express their views about the court proceedings [s 68LA(5A)]. This requirement will not apply if:

• the child is under 5,
• the child does not want to meet with the independent children’s lawyer, or
• there are exceptional circumstances that justify not meeting with the child (for example, if meeting with the child will have a significant adverse effect on the wellbeing of the child).

The court will never require an independent children’s lawyer to disclose the child’s views to the court [s 68LA(6)]. The independent children’s lawyer may disclose information the child tells them if the disclosure is in the best interests of the child [s 68LA(7)].

[Last Revised on 3 May 2024]

What evidence will the court consider?

At trial, parties do not usually give oral evidence in chief. Evidence is usually presented through affidavits which must be sworn, filed and served on the parties before the trial. Directions for the dates for completing this task are usually given at the pre hearing conference and a compliance check ensues.

The affidavit sets out the evidence in chief of each witness proposed to be called by a party. In the case of the applicant or the respondent their affidavit should be comprehensive. The following matters should normally be addressed:

• the applicant's personality and background.
• their schooling and occupation.
• their health including their mental health.
• their proposals for where the child will live and spend time.
• the arrangements they propose for the child's care and education.
• the arrangements they propose in respect of relevant moral issues, religious matters and cultural background issues, particularly where the child is of Aboriginal or Torres Strait Islander descent.
• their evidence in relation to any allegations of family violence.
• details of any subsequent marriage or de facto relationship in which they have been involved which could be relevant in the proceedings, for example, details of any re-marriage and step children.
• issues relating to the children's stability and the status quo. If it is to be changed, they may wish to set out why this would be in the child's best interests. However, they should only include the facts, and should not argue their case.

As with all affidavits, the deponents should only include factual matters and should not include speculations or expressions of opinion. They should also be free of hearsay, that is, evidence of things which are not within the parent's personal knowledge but have been gleaned from other sources such as second hand reports, the media or text books. A parent is not considered by the court to be an expert in respect of their child, so they should not include their opinion about the child's mental or physical health.

Family assessments/counselling reports

Section 62G(2) of the Family Law Act 1975 (Cth) provides for the court to direct a family consultant (court counsellor) to make a report. In making a report, the consultant will commonly interview each parent and child individually, unless the child is of an age or maturity where this is inappropriate. Commonly also the consultant will observe interactions between the child and each party. Conversations with a consultant are not confidential. A report is prepared for the court and circulated to the parties. Although the consultant's opinion is not binding on the court and is just another opinion to be considered with the rest of the evidence, as it is an independent assessment of the situation it is generally persuasive.

Because of the high demand for reports, it is not practicable to obtain family assessment reports on an interim basis and they can normally only be ordered at a pre-hearing conference. For this reason, the parties sometimes arrange for a family assessment by a private practitioner to have a report available sooner. Where the parties agree, they can do this without the appointment of an independent children's lawyer, but if agreement cannot be reached then an application for an independent children's lawyer to be appointed may result in the representative arranging a family assessment. Parents are usually required to contribute to the cost of the family assessment, and where they are unable to do so and are not legally aided, the report ordered by the court is an alternative.

Psychological reports

Although a party can ask the Federal Circuit and Family Court to order a child to undergo a psychiatric or psychological assessment, this should only be done in appropriate cases. The court can give any direction relating to the assessment that appears necessary having regard to the welfare of the child. Where a direction of the court has not been obtained, the court can refuse to admit the report in evidence unless all parties gave written consent to the referral. Where someone is threatening to obtain a psychological assessment it may be possible to obtain an injunction preventing it.

Expert witnesses

As part of the pre-action procedures, a party may require that information be sought from an expert witness. The rules about instructing and obtaining reports from an expert are in Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

In summary:

• An expert must be instructed in writing and must be fully informed of their obligations.
• Parties should seek to retain an expert in relation to a significant issue in dispute, and only where an expert’s evidence is necessary to resolve the dispute.
• Where practicable, parties should agree to obtain a report from a single expert instructed by both parties.
• If separate expert reports are obtained, reports must be exchanged.

Cross-examination

Witnesses can be cross-examined as part of family law proceedings. Special protections exist for the personal cross-examination of a party in family law proceedings where there is an allegation of family violence and certain criteria are met. If there is a ban on personal cross-examination, parties can engage their own lawyer, or apply to be provided with a lawyer through the Commonwealth Family Violence and Cross Examination of Parties Scheme. These applications can be lodged with Legal Aid NT, please contact the Helpline on 1800 019 343.

[Last Revised on 29 Sep 2020]

How is parentage determined?

Ordinarily the parentage of a child is acknowledged by both parents. The Family Law Act 1975 (Cth) contains a number of legal presumptions as to the parentage of a child.

The law presumes that:

• a child born to a woman who is married to a man is the child of the woman and her husband [s 69P FLA Act]
• a child born to a woman who cohabited with a man between 20 and 44 weeks before the birth is the child of the woman and the man [s 69Q FLA Act]
• the names of the people listed on a child's birth certificate are the parents of the child [s 69R FLA Act]
• a man who has formally acknowledged he is the father of a child on a legal instrument and has not rescinded it is the father of that child [s 69T FLA Act].

Declaration of paternity

Disputes sometimes arise where there is a request for child support or a parent wishes to spend time with their child. If paternity is at issue in a matter before the court, either parent may ask the court for a declaration of paternity. A man seeking to refute a presumption of parentage must prove on the balance of probability that he is not the child's biological father.

DNA paternity testing

Parties contesting or asserting paternity can access DNA tests to establish paternity to the satisfaction of the court. DNA is made up of identifiable substances unique to each person, but which include some inherited from parents. DNA testing is accepted as the most definite proof of the physical relationship between humans. It is often referred to as a 'genetic fingerprint' and shows the links between individual body fluids in separate blood samples. The technique used to detect these links is known as DNA profiling. This technique is more effective than blood tests and blood typing because DNA can determine the identity of the parent to within 99.5% certainty as opposed to the process of elimination used in blood typing.

When will the court order DNA testing?

The court cannot order DNA testing unless it relates to existing proceedings. Orders for DNA testing cannot be made simply to satisfy the curiosity of a parent. They will only be ordered where they are needed to determine whether any parenting application is in the best interests of the child concerned.

Costs

Tests are done privately for a fee which varies between providers. Court orders for paternity tests are paid by the person who wants the results as evidence in their case. The unsuccessful party will normally be ordered to pay costs. If there is no real doubt about paternity, applicants should be warned against baseless or vexatious applications, as they will be likely to pay the costs.

[Last Revised on 30 May 2014]

What if one parent refuses to return the children?

Location and recovery orders are provided for by Part VII Division 8 Subdivision C of the Family Law Act 1975 (Cth). They cover the situation where a person is prevented from having contact with their children because the other parent has taken the children without disclosing their whereabouts. In appropriate circumstances the court can order anyone with knowledge of the other parent's whereabouts to disclose this information to the court. Such orders are commonly made to obtain information from Centrelink, the ATO, and banks.

Parenting orders required for location or recovery order

To apply for a location or recovery order, a person must also apply for a parenting order or have an existing order. If a person has only a parenting plan or verbal agreement about who the children live with and spend time with, they will need to apply for parenting orders when they apply for the location order.

Protection for family violence victims

Any information divulged to the court under a location order must not be provided to the person who applies for the order [s 67P FLA Act]. Instead, the information is disclosed to other persons such as a lawyer, court official, process server or police officer. This is to protect a victim of family violence from being placed at risk of harm. In the case of an unrepresented party, if a location order is granted, the usual procedure would be for the court to either to supply the information to a marshal who can arrange for the other party to be served, or else to appoint a child representative to contact the other party.

Police powers under recovery orders

The court may order the return of the child by way of a recovery order which will be carried out by the Federal Police [Family Law Act 1975 (Cth) s 67R]. As an ancillary power, the police may stop and search any vehicle, vessel or aircraft on which the child is suspected to be. In practice, Federal Police may not have the resources at any given time to retrieve a child and this can lead to some delays or to the involvement of SA Police at the request of Federal Police.

The police will not usually execute a recovery order unless the parent entitled to the benefit of the order is with them at or near the place where the child is to be recovered. If therefore the child has been taken interstate, the parent seeking the recovery of the child will have to travel interstate at their own expense before the order can be executed. If a parent has no resources to make the journey, it may be possible to seek emergency financial assistance from the Department for Child Protection.

Children taken overseas

The Hague Convention provides for the return of children from a member country to the member country of their origin. These applications are dealt with by the Australian Central Authority. For more information about making an application for the return of an abducted child to Australia, call the Australian Central Authority on 1800 100 480 or visit the Commonwealth Attorney-General's Department webpage on International parental child abduction, which includes a Guide for applicants - Applying for the return of a child under the Hague Convention. Assistance to complete applications may be available from the International Social Service, call 1300 657 843.

[Last Revised on 4 Sep 2018]

What if one parent wants to relocate?

It is not uncommon for one or both parents to wish to relocate after a separation. If the relocation will not affect existing or proposed arrangements for children, it is less problematic. When it will affect those arrangements, these cases can be difficult to resolve with fairness to all parties involved.

Parents considering relocation should get legal advice. If one parent relocates without the other parent’s consent, the other parent (or person concerned with the care, welfare and development of the child) may apply to the Court for an order that the child be returned.

The Court has the power to order a child’s return if it determines that to be in the child’s best interests, and will often do so pending its determination. It is therefore advisable to obtain the other parent's consent and/or a court order permitting the relocation first.

An attempt at family dispute resolution is usually required before applying for parenting orders, including orders relating to relocation. See What needs to be done before applying ?

Whilst the Federal Circuit and Family Court has ruled that relocation cases are not a separate type of case, in determining the best interests of a child, the following is a list of factors that may be considered. This list is by no means exhaustive as each case will be assessed individually according to the circumstances involved.

• The reason(s) for the parent's relocation (for example, employment prospects, new partner, family support, to escape family violence) and how these may relate back to the child's best interests, which is the paramount consideration
• The parent's proposal to ensure the children can still spend time or communicate with the other parent (for example, communication by phone, holiday time with the other parent or even the relocation of the other parent)
• The ease of travel between the residence of each parent
• Each parent's attitude to the other parent (for example, where there is evidence of an unwillingness on one parent’s behalf to facilitate the child's relationship with the other parent, this can weigh against them)
• The willingness of others (for example, extended family, parent’s new partner) to facilitate the child's relationship with the other parent
• The relationship the child has with siblings, half-siblings or other family members and how that would be affected by the proposed relocation
• The child's age and their wishes.

[Last Revised on 4 May 2018]

What if one parent dies?

If a parenting order states that a child is to live with one parent and that parent dies, and the parenting order does not say what is to happen in the event of that parent's death, the child will not be required to live with the surviving parent [see Family Law Act 1975 (Cth) s 65K]. A parent can appoint someone else to take over as guardian of the child in the event of their death, but this is not in any way binding either, and will merely be taken as an expression of the deceased parent’s wishes.

In the event of a dispute, the surviving parent (or another person such as a relative or friend of the deceased parent who is acting as guardian) may make an application to the Federal Circuit and Family Court to determine this and any other issues. The application will be decided in the same way as any other, on the basis of all of the circumstances at the time, and with the child's best interests as the paramount consideration.

The Court has established a Critical Incident List to fast-track applications by a non-parent carer where there is no parent available to care for the children as a result of the death, critical injury or incarceration (relating to or resulting from a family violence incident) of the parents. For more information, see the Family Law Practice Direction: Critical Incident List.

[Last Revised on 6 Jun 2022]

How long do parenting orders last?

Parenting orders end when the child turns 18, marries, enters into a de facto relationship or is adopted by another person [Family Law Act 1975 (Cth) ss 65H(2) and 65J(2)].

Where the child is adopted by a step-parent, parenting orders are not altered unless the Court approves the adoption.

Parenting orders can be varied by application to the court. The court will generally only allow a final order to be varied where the parties agree or where there has been a significant change of circumstances since the order was made and a variation is in the best interests of the child [s 65DAAA].

[Last Revised on 03 May 2024]

How are parenting orders enforced?

Parenting orders create legal obligations and are legally enforceable by the parties. The Court expects that all parties will follow parenting orders.

The parties are usually given a copy of the Court’s information sheet Parenting orders – obligations, consequences and who can help.

If one party contravenes (fails to follow) a parenting order (that has not been changed by a subsequent parenting plan [Family Law Act 1975 (Cth) s 64D]), the other party may file a contravention application with the Court [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.64].

A contravention application must be filed with a copy of the parenting order that has allegedly been contravened, a supporting affidavit, and a family dispute resolution certificate (see Coming to an agreement for the circumstances in which such a certificate is not required). A contravention application cannot be filed through the Commonwealth Courts Portal but must be emailed to contraventionlist@fcfcoa.gov.au.

There is no fee to lodge this application, but cost orders can be made against an applicant in certain circumstances (for example, where a contravention is not established).

It is important to obtain legal advice before making an application. A party should consider what result they are seeking before applying to the Court. They should also consider whether a different application may be more appropriate. If, for example, the other party is refusing to return a child, an application for a location and recovery order may be more appropriate - see What if one parent refuses to return the children ?.

When is proof required?

The Court may make certain orders without finding that a party has contravened a parenting order. At any stage, the Court may:

• order that a child spend time with a parent who ought to have spent time with them under a parenting order (a 'make-up time parenting order') [s 70NBB FLA Act]
• vary or suspend a parenting order [s 70NBC FLA Act]
• order one or more parties to attend a parenting program [s 70NBD FLA Act]
• order a party to pay the costs of the other party [s 117 FLA Act].

Some orders require the Court to be satisfied that a parenting order has been contravened. If the Court is satisfied, on the balance of probabilities [s 70NAE FLA Act], that the respondent has contravened a parenting order, the Court may:

• order the respondent to enter into a bond, and fine the respondent if they refuse [s 70NBF(1)(a), (b) FLA Act]
• order the respondent to compensate a party who has missed out on spending time with a child as a result of the contravention [s 70NBF(1)(c) FLA Act].

If the Court is satisfied beyond reasonable doubt of a contravention, it may impose a fine or imprisonment [s 70NBF(1)(d)].

The Court will impose orders it considers appropriate in the circumstances of the case, having regard to the seriousness of the contravention and the best interests of the child.

Reasonable excuse

The respondent may admit to a contravention but ask the Court not to make orders on the basis that they have a reasonable excuse [s 70NAD]. A respondent will have a reasonable excuse for contravening a parenting order if they breached the order because:

• they did not understand the obligations imposed by the order [s 70NAD(1) FLA Act], or
• they reasonably believed that their actions were necessary to protect their health or safety or the health or safety of a child or another person [s 70NAD(2) FLA Act].

There may be other circumstances in which the Court will be satisfied that a party had a reasonable excuse to contravene a parenting order [s 70NAD(4)].

A party who wishes to argue that they had a reasonable excuse for contravening a parenting order must prove it on the balance of probabilities [ss 70NADA, 70NAE].

For further information about contraventions, visit the Federal Circuit and Family Court websites:

• Children: Compliance and enforcement
• How do I apply to the Court when parenting orders have been contravened (breached) or not complied with?

[Last Revised on 06 May 2024]

Child Support

The role of Services Australia - Child Support

The Child Support Scheme is part of the federal government department, Services Australia. Centrelink and Medicare are also part of Services Australia. The Department administers the Child Support legislation, which is made up of the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

Child Support Assessments

Services Australia - Child Support (SA-Child Support) processes applications for child support, create assessments of child support based on the legislative formula or a child support agreement, and manages a variety of administrative remedies which are available to customers under the legislation. The most common of these remedies include seeking a change to the level of care recorded in the assessment, lodging an Estimate of Income and seeking a Change to the Assessment in Special Circumstances.

The formula assessment relies on having accurate information about parents’ incomes and care arrangements. For this reason, it is important that parents lodge their tax returns on time and provide SA-Child Support with accurate information about the care of the children.

It is also important to notify SA-Child Support of any other change in circumstances as soon as possible. These could include the birth of a relevant dependent child, a change in the care arrangements for a child or a significant decrease in the income of a parent. Such changes may have a direct impact on the child support assessment, or may lead to taking other steps such as lodging an Estimate of Income or an application to Change the Assessment in Special Circumstances.

Collection and Enforcement of Child Support Payments

If necessary, SA-Child Support can collect payments of child support or maintenance from payers, and transfer these payments to payees. The Department has a range of powers to enforce collection of child support debts if they are not paid voluntarily. These powers include the ability to:

• collect payments directly from a payer’s employer;
• intercept tax refunds due to a payer who has a child support debt;
• withdraw funds from a payer’s bank account (where it can be identified);
• collect a limited amount from Centrelink benefits; and
• issue a Departure Prohibition Order to prevent a payer who has a child support debt from leaving Australia until s/he enters into a payment arrangement.

Relationship with Centrelink

Child Support, Centrelink and the Family Assistance Office share information about the amount of child support calculated in an assessment, and about the level of care each person provides for the children. If SA-Child Support is collecting the payments, information will also be provided to Centrelink about the actual amount of child support paid or received.

Child support payments can affect Family Tax Benefit (A) entitlements. A person must have at least 35% care of a child to be eligible to receive a payment of FTB (A) for a child.

NB: Centrelink and SA-Child Support do not automatically share information about parents’ incomes. Therefore, if there are changes in a parent’s income or if a payer becomes unemployed, it is important to contact SA-Child Support to discuss the options for changing the child support assessment.

[Last Revised on 18 Jan 2021]

Applying for a child support assessment

Either parent or a non-parent carer can apply to Services Australia for an administrative assessment of child support. The application can be made to the Department:

• online at www.servicesaustralia.gov.au/child-support-assessment; or
• by telephone (131 272).

The Department requires information about:

• proof of parentage for each parent;
• care arrangements for the child/ren; and
• whether the collection of the liability will be done privately or by Services Australia.

[Last Revised on 18 Jan 2021]

Proof of Parentage

When applying for a child support assessment, Services Australia – Child Support will require proof of parentage from each parent. This can be provided in a number of ways, as set out in section 29(2) of the Child Support (Assessment) Act 1989 (Cth). Services Australia can accept any of the following as proof that a person is a parent of a child:

• the child was born during the course of a marriage
• the person is recorded on the birth certificate as a parent of the child
• the person has been found to be a parent of the child by a relevant court
• the person has acknowledged parentage by signing a Statutory Declaration or other instrument
• the person has adopted the child
• the father and the mother lived together during the period 44 weeks to 20 weeks before the birth of the child
• the person is a parent of the child under section 60H (artificial conception procedures) or section 60HB (surrogacy provisions) of the Family Law Act 1975 (Cth).

Determining parentage can be complex, and DNA parentage testing can be used to help resolve uncertainties. Testing for legal purposes must be done by laboratories accredited as required by the Family Law Act 1975 (Cth), and using strict procedures that are set out in the Family Law Regulations 2024 (Cth).

Services Australia cannot accept a DNA parentage testing report as proof of parentage. DNA reports can be produced as evidence in a court to obtain a court order stating that a person is, or is not, a parent of a child.

Parentage Disputes

In circumstances where a mother is required by Centrelink to apply for a child support assessment and the application cannot be accepted because there is no proof of paternity, advice should be obtained. Legal services like for example Legal Aid NT may be able to offer assistance to

• contact the alleged father and to ask him to sign a Statutory Declaration stating that he is the father of the child/ren; or
• arrange, where necessary, for parentage testing to be carried out to determine paternity;
• seek an order of the court for a declaration of paternity, where necessary.

If a father is concerned that he is assessed to pay child support for a child who is not his child, he should organise an appointment with a lawyer as soon as possible by calling Legal Aid NT. Assistance may be available to

• arrange parentage testing where appropriate;
• make an application to a court for a declaration that a payee is not entitled to receive child support from the payer;
• seek a court order to recover monies already paid.

Legal advice should be sought promptly in relation to any matters involving disputed parentage. Delay in bringing an application can adversely affect the legal rights of the parties.

[Last Revised on 18 Jan 2021]

Centrelink and child support

Centrelink and the Family Assistance Office are key stakeholders in the Child Support Scheme. One of the major reasons that the Child Support Scheme was introduced was to reduce the burden on the welfare system, and to ensure that parents were responsible for the financial support of their children in the first instance.

A person must have at least 35% care of a child to be eligible to receive a payment of Family Tax Benefit Part (A). The payment is individually calculated to suit the care arrangements for each child.

Maintenance Action Test

Any parent who is eligible to receive more than the base rate of Family Tax Benefit (A) is required to ‘take reasonable maintenance action’ to obtain child support payments from the other parent. Taking reasonable maintenance action includes obtaining legal assistance to establish parentage to allow an application for child support to proceed. A parent has 13 weeks to take this action before their FTB (A) can be reduced to the minimum rate.

Legal assistance can be obtained from the Child Support Help Line on (08) 8111 5576.

Exemption from taking Maintenance Action

Some parents may be eligible to obtain an exemption from taking maintenance action for the following reasons:

• Fear of violence
• Risk of harmful or disruptive effects
• Exceptional cultural circumstances
• Father of child unknown
• Identity of father cannot be proven despite legal assistance

An appointment should be made with a Centrelink social worker to discuss obtaining an exemption on these grounds. The social worker will make a decision based on his or her professional assessment. A parent may be asked to provide evidence in support of a claim for an exemption.

Calculation of Family Tax Benefit Part (A)

The rate of FTB(A) is affected by

• household income;
• the amount of care provided; and
• the amount of child support that is paid or received.

The rate of FTB(A) can also be affected by the way that the child support payments are collected, either by

• private collection; or
• SA-Child Support collection.

Collection by Private Arrangement

If a payee opts to collect payments of child support privately, Centrelink will assume that s/he is receiving the full amount that s/he is entitled to receive under the assessment, and calculate the rate of FTB (A) accordingly.

If child support payments are not made, or are not made in full, a payee can ask Services Australia - Child Support to collect child support on his/her behalf.

Collection by Services Australia - Child Support

If SA-Child Support collects the payments of child support, Centrelink will be notified of all payments received. If payments are not being made, the payee can ask Centrelink to calculate the rate of FTB (A) based on the amount of child support that has actually been received (known as the ‘disbursement method’), rather than on the amount they are entitled to receive (known as the ‘entitlement method’).

It is recommended that payees discuss these issues with Centrelink to achieve the best outcome for them.

[Last Revised on 18 Jan 2021]

Child support assessments

The child support assessment can be based on the formula set out in the legislation, or an agreement reached between the parents.

Formula Assessment

The current formula was introduced on 1 July 2008. It takes into account many variables including the incomes of each parent, the number and ages of children, the costs of children, the level of care each parent provides for the children, and whether either parent has a legal duty to support any other children.

The formula consists of three main elements:

1. Parents’ Incomes
2. Costs of Children Table
3. Level of Care

Parents’ Incomes

The starting point is each parent’s taxable income for the previous year, plus other amounts which are automatically included such as:

• Net financial investment losses (eg rental property, shares, managed investments)
• Reportable fringe benefits
• Foreign income
• Reportable superannuation contributions
• Some tax-free pensions or benefits
• Some payments from the Department of Veteran’s Affairs

The total of these amounts is called the ‘Adjusted Taxable Income’.

The first step in the formula is to subtract an amount described as the ‘self-support’ amount ($29,841 in 2025) from each parent’s Adjusted Taxable Income. The self-support amount is the same for each parent.

If a parent has other relevant dependent children in their care, or is paying child support for other children, a further amount is subtracted from the Adjusted Taxable Income to recognize the costs associated with these commitments. In general terms, a relevant dependent child is defined as a child who is in the care of the parent for at least 35% of the time. The definition does not generally include step-children.

The remaining income is called the Child Support Income. Each parent’s Child Support Income figures are added together to obtain the Combined Child Support Income. This combined figure determines the costs of the children by reference to a Costs of Children Table.

The individual incomes of parents determine each parent’s share of the costs of children that they are required to meet.

Costs of children

The Costs of Children Tables are based on Australian research which looked at the amount of money spent on raising children in households with differing levels of income. The Costs of Children Tables are adjusted each year in accordance with changes in average incomes.

The Costs of Children Tables also take into account the number of children (up to a maximum of 3) and the ages of the children who require support. There is a table for children from 0-12 years, a table for children 13 years and over, and a table for children of mixed ages.

The table is available here: https://www.servicesaustralia.gov.au/individuals/services/child-support/child-support-assessment/how-we-work-out-your-assessment/basic-formula

Level of Care

The amount of care provided by each parent can be counted as a contribution to the costs of the children. The level of care is generally counted in nights. However, a request can be made to determine the level of care based on hours rather than nights.

• Parents who provide care for less than 52 nights (Less than Regular Care) are not considered to be providing care to an extent that should impact on the child support assessment. Accordingly, these parents have a cost percentage of 0%.
• Parents who have ‘Regular Care’ of 52 - 127 nights per year are said to meet 24% of the costs of the children through care. For parents with this band of care, the cost percentage is a flat 24%.
• Shared Care of 128 - 237 nights per year is worked out on a sliding scale delivering a cost percentage of 25-75%.
• Parents who have ‘Primary Care’ of 238 - 313 nights are said to meet 76% of the costs of the children through care.

It should be remembered that increasing levels of care generally reduce the amount of child support to be transferred in periodic payments because it is recognized that parents contribute to the overall costs of the child by paying for a range of items while the child is in their care. A contribution to the child’s costs is not limited to the provision of food and accommodation while the child is in their care. Contributions to the costs of the child can include an equitable contribution to any costs including clothing, public school costs, medical and pharmaceutical expenses, and extra-curricular activities.

While the child support formula does not prescribe in minute detail how these costs are to be divided, parents should be aware that a significant level of care will reduce the rate of child support because it is assumed that a contribution is being made to the whole range of costs associated with raising children while they are in each parent’s care.

Parents need to be able to negotiate with each other about how they will meet the costs of children while they are in their care. A mediation service may be able to assist if parents are unable to reach agreement.

A table that converts the number of nights of care into the percentage of a child’s costs is below.

Nights per year	CSA terminology	Equals	Percentage of costs met through care
0-51	Less than Regular Care	=	0%
52-127	Regular Care	=	24%
128-237	Shared Care	=	25-75% (sliding scale)
238-313	Primary Care	=	76%
314-365	Greater than Primary Care	=	100%

[Last Revised on 30 Jan 2025]

Example - Calculating the rate of child support

Jack and Jill separate. They have one child, Jenny, aged 3 years, who spends 285 nights of the year with Jill, and 80 nights with Jack. Jack earns $97,063 and Jill earns $57,063. They have no other children.

1. Work out each parent’s Adjusted Taxable Income.

2. Subtract the self-support amount.

3. Subtract a further amount if either parent has a relevant dependent child or pays child support for another child or children. This is not applicable in this example.

4. Calculate the Combined Child Support Income.

5. Consult the Cost of Children table to determine the cost of a 3 year old child in a family with a Combined Child Support Income of $100,000.

5. Calculate each parent’s Income Percentage, which is their share of the costs of the child based on the Child Support Income alone.

6. Work out the Cost Percentage based on the level of care each parent provides for the child.

7. Calculate the Child Support Percentage by subtracting the Cost Percentage from the Income Percentage. This adjustment recognizes that some or all of Jenny’s costs are being met through the care that is provided by Jack and Jill.

8. Work out the amount of child support payable by multiplying the cost of the child by the Child Support Percentage.

Services Australia – Child Support has a child support Estimator on their website. Parents may find it a useful tool in less complex cases: Child Support Estimator.

[Last Revised on 30 Jan 2025]

Minimum annual rate of child support

Generally, payers who have a low Adjusted Taxable Income are only required to pay the Minimum Annual Rate of child support.

In 2025 the minimum rate is $534 per annum. This rate increases each year in line with increases in the consumer price index. If the payer has more than one family, the minimum rate is payable to each family (up to a maximum of three cases).

The Minimum Annual Rate is not payable if the paying parent has at least Regular Care of the child/ren (52-127 nights per year).

[Last Revised on 30 Jan 2025]

Fixed annual rate of child support

There are some cases where payers have a low taxable income but this is not an accurate reflection of their financial situation. Therefore, if a paying parent has a very low income but is not in receipt of a Centrelink benefit, the Minimum Annual Rate is replaced by a Fixed Annual Rate. For the 2025 calendar year this is $1,768 per child capped at three children, being $34 per week per child (capped at $102 per week).

The Fixed Annual Rate is not payable if the paying parent has 35% (or more) care of the child, because it is accepted that they are contributing to the costs of the child through the care provided.

If a parent wishes to dispute a fixed rate assessment they should contact the Services Australia - Child Support on 131 272. The Department will require further evidence of income to enable the officer to make a decision.

[Last Revised on 30 Jan 2025]

How to change a child support assessment

There can be many reasons that require a change to a child support assessment - a parent’s income may not be accurately reflected in the assessment, or the level of care recorded may be wrong, or there may be a special circumstance that is not taken into account in the formula. What can be done? The child support legislation has some inbuilt remedies, which allow an assessment to be changed to reflect the circumstances in the case. The remedies are administered by the Services Australia - Child Support. They allow the child support formula assessment to respond to unanticipated changes in the lives of the parents and children.

Administrative remedies

If the assessment is not fair or not correct, it is important to identify the problem so that the appropriate remedy can be selected. For example, if the issue is about the care level used in the assessment then the remedy is to inform Services Australia-Child Support or Centrelink and ask for a care decision to be made.

If the issue concerns a special circumstance such as the special needs of a child or private education expenses, the appropriate remedy may be to make an application to Change the Assessment in Special Circumstances.

Alternatively, the issue may relate to the income used in the assessment for either parent. Ordinarily, the income used in the assessment is based on the parent’s most recent taxable income. For some people, particularly those people who are self employed or have experienced periods of unemployment, this may not produce an accurate assessment of child support. The remedies most often used to change the income used in the assessment are the lodgement of an Estimate of Income or an application to Change the Assessment in Special Circumstances. Deciding which of these remedies is appropriate will depend on the particular circumstances in the case.

Changes in care levels or other circumstances

The level of care forms an integral part of the formula assessment. For this reason, it is important to tell Services Australia – Child Support about any changes to care arrangements as soon as possible. This is one instance where either Centrelink or Services Australia can be notified and either can make care decisions which can affect both Family Tax Benefit (A) and the rate of child support.

Services Australia – Child Support or Centrelink will contact the other party to confirm the level of care. If there is a dispute about care levels, the parties may be asked to provide further information before the Department makes a decision. Usually the Department must make a decision based on the actual levelof care that each parent or carer is providing for the child or children.

Sometimes parents or carers have a written agreement, parenting plan or court order which sets out the care arrangements for the children. The level of care may initially reflect these written arrangements. However, it may be that circumstances change and the actual care arrangement is different to the written document. If parents or carers do not agree about the level of care that each is providing for the children, the Department will need to make a care decision to reflect the actual care arrangement for the children.

Sometimes in these circumstances one parent is taking steps to enforce or change the written care arrangement. For example, they may be arranging mediation to renegotiate the care arrangements, or may have filed a court application seeking to enforce parenting orders made in a family law court. In these circumstances the Department can make an interim care decision to use the care level detailed in the written document for a period of 14 weeks (and sometimes up to 26 weeks) in the expectation that the care dispute will be resolved by mediation or through court proceedings. If the dispute is not resolved, the Department must eventually make a decision to reflect the actual care arrangement for the children.

If Centrelink makes a care decision, an appeal can be lodged with an authorised review officer (ARO). These appeals should be lodged within 13 weeks to ensure that the appeal decision can be backdated. There is a further right of appeal to the Administrative Review Tribunal which should also be lodged within 13 weeks.

If Services Australia –Child Support made the care decision, an objection can be lodged within 28 days. Unlike most objections, an objection in relation to a care decision can be made by telephone to Services Australia on 131 272. It does not need to be in writing. The objection decision can be appealed to the Administrative Review Tribunal if either party is not satisfied with the objection decision. An appeal to the ART must be lodged within 28 days.

A further appeal can be made to the Administrative Review Tribunal in relation to care decisions.

Legal advice can be sought regarding objection and appeal rights by calling Legal Aid NT through the Helpline number 1800 019 343.

The table that converts the number of nights of care into the percentage of a child’s costs is above (see Level of Care ).

Estimate of income

If the income used in the assessment is not correct, either parent can provide an Estimate of Income to Services Australia – Child Support in the following circumstances:

• the estimated income must be at least 15% lower than the income used in the assessment;
• estimates can only be lodged for future periods, ie an estimate cannot change past periods prior to the day on which the estimate is made;
• estimates start from the date the parent provides the estimate to Child Support, or from a nominated future start date;
• the parent wishing to provide an estimate must have lodged their most recent tax return, or provided SA-Child Support with their adjusted taxable income for that period;
• an estimate can be lodged for the whole or a part of a financial year;
• an estimate cannot replace an income in an assessment that has been fixed by a court decision or through the Change of Assessment process.

When lodging an Estimate of Income, parents are also asked to provide the income they have earned up to the day on which they lodge their Estimate. It is important that this ‘year-to-date’ figure is accurate, as it will be used when the SA-Child Support reconciles the estimate with the actual income that the person has earned.

If there is any change to their income during the estimate period, parents are obliged to update their estimate of income by notifying SA-Child Support.

Estimates are reconciled with taxable income after the end of the financial year. If the actual income is higher than the estimated income, the assessment will be amended to use the higher income for the estimate period. Penalties can apply if a person significantly underestimates their income.

NB: It is important to ensure that estimates include all types of taxable income such as a drawdown on superannuation or any event that might attract capital gains tax.

Changing your assessment in special circumstances

Either parent or a non-parent carer can lodge an application to Services Australia-Child Support to Change the Assessment in Special Circumstances. These applications are commonly made where parents’ incomes are disputed, or where parents or carers have extra costs associated with a child’s special needs, or with private schooling which both parents agreed to. This application must be made in writing on the appropriate form. Services Australia-Child Support will send a copy of the application and any supporting documents to the other parent, who is given the opportunity to respond and/or make a cross-application.

A Senior Case Officer is appointed to consider the application. The Senior Case Officer can consider variations to the current and future assessments. Changes to the assessment can be backdated for a period up to 18 months prior to lodging the application, although often a change is only made from the date the application was lodged.

To change any earlier assessments an application must first be made to a court seeking leave (permission) to make changes that are more than 18 months in the past. A court can only authorise changes to the assessment for a maximum of 7 years prior to the application being lodged.

When considering whether to make a change to the assessment, the Senior Case Officer must be satisfied of the following three criteria:

• that special circumstances exist;
• that one of the reasons (listed below) exists; and
• that it is fair to all the parties and the community to make a change.

There are ten specific grounds of review that can be established:

• Reason 1 It costs more than 5% of the child support income amount to have spend time with the child(ren). (If a parent has at least regular care of the child(ren), a claim under this reason is restricted to travel related expenses).
• Reason 2 It costs extra to cover the child(ren)’s special needs.
• Reason 3 It costs extra to care for, educate or train the child(ren) in the way that both parties had intended.
• Reason 4 The child support assessment does not take into account the income, earning capacity, property and financial resources of the child(ren).
• Reason 5 The child(ren), payee or someone else has received or will receive, money, goods or property from the payer.
• Reason 6 It costs more than 5% of the child support income amount for child care for the child(ren) who are 12 years or under.
• Reason 7 The payee or payer have necessary expenses in supporting themselves that affect their ability to support the child(ren) of the assessment.
• Reason 8 The child support assessment does not take into account the income, earning capacity**, property and financial resources of one or both of the parties.
• Reason 9 The payee or payer has a legal duty to maintain another person or another child(ren) not included in the child support assessment. This can include a legal duty to support an adult child who is in need of support because s/he is undertaking study or training, or because s/he has a disability, or a legal duty to support a spouse.
• Reason 10 The payee or payer has a responsibility to support a resident child who lives with him/her but is not a biological child. A resident child is a child of the partner of the payee or payer with whom they have lived for at least 2 years. It must be shown that neither of the biological parents of the resident child is able to support them.

* Earning Capacity has a very specific definition.* In order to have a parent assessed on his/her earning capacity (rather than on his/her actual income), an applicant has to satisfy three criteria:

1. The parent is either:

a) not working despite ample opportunity to do so, or

b) has reduced weekly working hours below full-time hours, or

c) has changed occupation, industry or working pattern

AND

2. The parent’s decision about work is not justified by either:

a) caring responsibilities, or

b) health reasons

AND

3. The parent (whose earning capacity is being examined) has failed to show that the work arrangements have not been put in place in order to have an effect on the child support assessment.

The Senior Case Officer, in making a decision, is bound by the Child Support (Assessment) Act 1989 (Cth), Child Support (Registration & Collection) Act 1988 (Cth) and the Family Law Act 1975 (Cth). The legislation states that an assessment can only be varied where it is just, equitable and otherwise proper to do so.

Time limits

Applications can only be made to Services Australia-Child Support to change an administrative assessment that is less than 18 months old on the date the application is lodged.

A person must first apply to a court for leave (permission) to seek a change to an assessment that is more than 18 months old. A court cannot give permission to change an assessment that is more than 7 years old.

General information about change of assessment process

Applying to change an administrative assessment in special circumstances is free. Either parent or a non-parent carer can apply to have the assessment changed.

The applicant must complete an application form and nominate the reasons they rely on, before the application can be processed.

A non-parent carer (such as a grandparent) is not required to provide their financial information on the application form.

The applicant should provide any additional information or documents relevant to their case.

Applicants and respondents should be aware that Services Australia has a policy of open exchange of information. This means that copies of the application/response and any supporting documents will be provided to the other person. Any information that an applicant does not want revealed to the other person, such as their address, phone number or bank or credit card numbers, should be removed before submitting the application.

A Senior Case Officer will consider the application and will try to contact the parties to discuss the application and response.

Applicants should retain a copy of their application.

It is possible to receive an adverse decision in this process. For this reason, it is a good idea to seek free legal advice and assistance from Legal Aid NT before submitting an application or response. Be aware that parties cannot be represented by lawyers in this process.

The Senior Case Officer will provide written reasons explaining the decision. The Senior Case Officer’s decision is binding on both parties until a further decision is made.

If a party is not satisfied with the decision, they can object to the decision in writing within 28 days.

If a party is unhappy with the objection decision, they can appeal to the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal) within 28 days. An appeal to the ART can be made online or by calling 1800 228 333.

Appeals to a court from a Tribunal decision can only be brought on a question of law.

[Last Revised on 18 Jan 2021]

Objections to and appeals of Services Australia decisions

Objections

It is possible to object to many of the decisions made by Services Australia – Child Support if an error has been made in determining the facts or applying the law. Services Australia – Child Support is required to inform people of their objection rights when a decision is made.

An objection is usually lodged in writing. The exception to this rule is that objections in relation to level of care decisions can be made by telephone.

Time limit

A person has 28 days in which to object to a decision by Services Australia – Child Support. This time limit is usually strictly enforced. An application for an extension of time in which to object to a decision can be made either in writing or by telephone.

Decisions commonly objected to include:

• decisions in relation to a Change of Assessment application
• decisions to accept or refuse an Estimate of Income
• decisions in relation to the level of care recorded in the assessment for the children
• decisions to accept or refuse an application to register a Child Support Agreement
• decisions in relation to remission of late payment penalties
• decisions in relation to non-agency payments.

Reviews in the Administrative Review Tribunal

Decisions made by Services Australia – Child Support can be reviewed by the Administrative Review Tribunal (ART). A person must first have objected to the decision through Services Australia - Child Support's objection process before they can lodge a review with the Tribunal.

An application for review can be lodged with the ART online, by telephone (1800 228 333) or in writing. Forms and further information can be found at the ART website.

When a review is lodged, Services Australia – Child Support provides all relevant documents to the ART and a copy is given to each party. The Tribunal can request further information to help it make a decision.

If the review is in relation to a Change of Assessment decision, a pre-hearing conference is often held to identify the issues and determine if further information is required from either party. A date will also be fixed for the review hearing.

Both parties attend the review hearing in person, although in some circumstances arrangements can be made to attend by telephone. A person can bring along a support person, but the Tribunal will decide if the support person is allowed to attend the hearing. A party can apply to the Tribunal to allow a representative (including a legal representative) to make submissions at the hearing.

Time limit

If a person is dissatisfied with an objection decision made by Services Australia – Child Support, they have 28 days in which to lodge a review in the ART. This time limit is usually strictly enforced, although an application can be made to the ART for an extension of time in which to seek a review.

Appeals to a court

An applicant who is dissatisfied with a decision of the Administrative Review Tribunal may appeal to a court but only on a question of law. There is a 28 day time limit for lodging an appeal to a court, although an application for an extension of time can be made. It is important to get legal advice before lodging an appeal at a court. In any unsuccessful court application there is a risk that the court could make a costs order.

[Last Revised on 18 Jan 2021]

Child Support Agreements

Parents can make their own formal agreements about the amount of financial support they provide for their children.

There are two kinds of formal child support agreements:

• Limited Child Support Agreements; and
• Binding Child Support Agreements

Child support agreements can include periodic payments, payments to third parties, in-kind payments or lump sum payments. An agreement allows parents some freedom to make arrangements to suit their individual needs. However, the object should always be that the children receive a proper level of financial support from their parents, and agreements should not be used to unfairly take advantage of either party.

For such agreements to be registered with Services Australia– Child Support they must be drawn up strictly in accordance with the child support legislation. Child support agreements can include various types of payments, but SA-Child Support can only collect periodic payments such as a monthly or weekly rate of child support. The Department cannot enforce any clauses in agreements which relate to payments to third-parties, in-kind payments or lump sum payments.

Parties should be cautious about the duration of an agreement. The longer the period of the agreement, the less likely it will be able to accommodate future changes in the circumstances of the parents or the children in the same way that a formula based assessment can.

There is also a group of agreements which predate the change to the law on 1 July 2008, and which were ‘transitioned’ to become Binding Child Support Agreements, even though the strict criteria governing new binding agreements were not satisfied. These agreements are known as ‘Transitioned Agreements’.

Limited Child Support Agreements

An administrative assessment of child support must be in place before a Limited Child Support Agreement can be registered. It is recommended that parties seek legal advice before entering a Limited Agreement, but this is not a mandatory requirement.

A Limited Child Support Agreement has the following fundamental characteristics:

• provides a rate of child support equal to or more than the amount payable under the formula assessment;
• can include periodic and non-periodic payments;
• can be replaced with a further Limited or Binding Agreement, but cannot be varied;
• can be terminated upon application of either party after the passage of 3 years; or when the annual rate of child support payable under a notional formula assessment changes by more than 15%;
• can be set aside by a court under s 136 of the Child Support (Assessment) Act 1989 (Cth);
• Family Tax Benefit (A) entitlements will be calculated by reference to the child support payable under a notional formula assessment, (not the amount payable under the Agreement);
• a new notional assessment will be issued each three years; or at the request of either party; or where the amount of child support payable under the agreement changes by more than 15%;
• parties have options to challenge the new notional assessment within 14 days.

Binding Child Support Agreements

It is not necessary to have an administrative assessment in force prior to entering into a Binding Child Support Agreement. However, if a binding agreement is registered with Services Australia-Child Support, a notional formula assessment will be created. A notional assessment is the formula based assessment that would apply if the agreement was not in place.

Some fundamental characteristics of Binding Child Support Agreements are listed below:

• can provide for the payment of child support that is less than, equal to, or more than the rate of child support that would be payable under the formula assessment;
• can provide for periodic, non-periodic and lump sum payments;
• each party must receive legal advice from a legal practitioner, and a Certificate of Independent Legal Advice must be annexed to the Binding Child Support Agreement;
• can be terminated by executing a Termination Agreement or a further Binding Child Support Agreement. Both alternatives require the provision of independent legal advice to each party;
• can be set aside by a court under s 136 of the Child Support (Assessment) Act 1989 (Cth);
• Family Tax Benefit (A) entitlements will be calculated by reference to the child support payable under the notional formula assessment, (notthe amount payable under the Agreement); and
• A new notional assessment will be issued each three years or where the amount of child support payable under the agreement changes by more than 15%. Parties have options to challenge the new notional assessment within 14 days.

It is mandatory for each party to receive independent legal advice before entering a Binding Child Support Agreement. Section 80C of the Child Support (Assessment) Act (1989) requires legal practitioners to advise parties as to:

(i) the effect of the agreement on the rights of that party;

(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement

To provide this advice, a legal practitioner would need an understanding of the Child Support scheme, and knowledge of the financial situation of each party. This involves the exchange of financial information. Even if a party indicates that s/he is perfectly satisfied with the terms of the agreement, the law requires that the advice be given by the legal practitioner.

Lump sum Binding Child Support Agreements

Binding Child Support Agreements can include an agreement to transfer a lump sum payment of cash or non-cash. For example, transferring equity in the former matrimonial home can constitute a lump sum child support payment. Some fundamental characteristics of lump sum binding agreements are listed below:

• an administrative assessment must be in force prior to entering the agreement;
• each party must receive legal advice from a legal practitioner, and a Certificate of Independent Legal Advice must be annexed to the lump sum Binding Child Support Agreement;
• the lump sum amount must be more than or equal to the annual rate of child support;
• actual payment of the lump sum will be transferred between the parties (not paid to Services Australia – Child Support);
• the lump sum credit will be recorded at Services Australia-Child Support where it will reduce each year by the annual rate of child support, and the remaining credit will be indexed by the CPI;
• unless the Binding Child Support Agreement also changes the rate of child support payable, the Department will continue to produce formula assessments in the usual way;
• Family Tax Benefit (A) entitlements will be calculated by reference to the formula assessment of child support, or if the agreement has also changed the rate of child support payable, by reference to the notional assessment;
• if the rate of child support is not set by the agreement, it will be impossible to predict how long the lump sum amount will last because the assessment will vary with changes in the parents’ incomes, ages of the children and care levels;
• when the lump sum credit is reduced to nil, it will be necessary to commence periodic payments according to the administrative assessment;
• a lump sum Binding Agreement can prescribe that the lump sum can represent either 100% or some other proportion of the amount payable under the administrative assessment.

A lump sum Binding Child Support Agreement may be used in conjunction with Property Settlement orders. For example, the agreement may provide for the transfer of equity in the family home to represent a lump sum payment of child support. The parties can agree that the lump sum is to be used to pay for all or part of the child support assessment.

Example:

Parties agree to a $20,000 lump sum payment, and agree that it will represent 50% of the assessed annual rate of child support. The annual rate is currently $5,000.

A Binding Child Support Agreement is executed and registered with Services Australia-Child Support, and the $20,000 credit is recorded.

The payer will pay $2,500 (50% of the annual liability) in periodic payments, and after twelve months the lump sum credit will reduce by $2,500 (50% of the annual liability) to $17,500. The remaining credit will be indexed by the CPI.

This sequence will continue (taking account of any variations in the assessed rate of child support and CPI) until the lump sum is exhausted or the case ends.

Centrelink and Agreements

Parents/carers are able to make a Binding Child Support Agreement which provides for less than the assessed rate of child support. However, the entitlement to Family Tax Benefit (A) will not be calculated on the amount of child support payable under the agreement. FTB (A) will be calculated by reference to the notional assessment of child support, which will reflect the amount of child support that would have been payable, if the agreement had not been made.

For clients with Limited Child Support Agreements, Family Tax Benefit (A) will also be calculated by reference to the notional assessment, and not by the agreement.

Lump Sum Binding Child Support Agreements will not require the creation of a notional assessment, unless the agreement also changes the rate of child support payable. Although Transitioned Agreements (those executed and registered prior to 1 July 2008) are deemed to be Binding Child Support Agreements, in these cases Family Tax Benefit (A) entitlement is based on the amount of child support set out in the agreement.

Setting aside a Child Support Agreement

• A court can set aside a Limited Agreement or a Binding Agreement if the agreement was obtained by fraud or the failure to disclose material information; or
• the court is satisfied that undue influence, duress, or unconscionable or other conduct was applied to secure the agreement; or
• in the case of Limited Agreements, a court can set the agreement aside if there is a significant change in the circumstances of either party or the child, or if the agreement provides for an annual rate of child support that is not proper or adequate; or
• in the case of Binding Agreements, a court can set aside the agreement if exceptional circumstances occur after the agreement is made, that would cause hardship if the agreement was not set aside.

[see Child Support (Assessment) Act 1989 (Cth) s 136]

It is clear from this section that parties should provide full and frank disclosure of their financial positions at the time of negotiating an agreement. It is also important that neither party, nor someone acting on their behalf, use any undue pressure or coercion to secure the agreement of the other party, because this can provide the grounds to have an agreement set aside.

In addition, parents should be aware that it is very difficult to set aside a Binding Child Support Agreement by showing ‘exceptional circumstances that would cause hardship’. There have been several cases where this test has been very difficult to make out. Changes in income, the birth of new children, even changes in care arrangements of the children are not always sufficient to satisfy a court that there are ‘exceptional circumstances’.

Enforcement and collection

An agreement which has been appropriately drafted and executed, and which provides for the periodic payment of child support can be registered for collection with Services Australia-Child Support. Agreements for non-periodic payments (such as school fees) cannot be enforced by the Services Australia-Child Support.

Services Australia- Child Support cannot enforce verbal agreements.

An agreement cannot exclude collection of the liability by Services Australia – Child Support, even if expressed to do so. If the payments are not made voluntarily in accordance with the agreement, the payee can ask Services Australia-Child Support to commence collection of periodic payments.

[Last Revised on 18 Jan 2021]

Adult child maintenance

What happens when my child turns 18?

A child support assessment will usually end when a child turns 18. However, if the child is still attending secondary school when s/he turns 18, the payee can ask Services Australia – Child Support to extend the child support assessment until the end of the school year. This application can be made by telephone and must be made before the child turns 18.

What happens after the child support assessment ends?

In Australia the Family Law Act 1975 (Cth) provides that a maintenance order can be made for children who are over 18 if financial support is necessary

1) to enable the child to complete their education; or

2) because of a mental or physical disability of the child.

Education can include school, TAFE and university courses, apprenticeships and vocational courses. The court can consider whether the course is an appropriate path to assist the child to become independent. Parents do not generally have a legal obligation to support children through post-graduate degrees.

To have a legally binding arrangement for a child who is over 18, there must be a court order which sets out the amount of adult child maintenance. Orders for periodic payments can be registered for collection by Services Australia–Child Support if the payer defaults on making payments directly to the carer or child. Either the adult child, or the person who is caring for them, can apply to the court for an adult child maintenance order. The first step in such an application is to try to reach agreement between the adult child and one or both parents. This can involve negotiation between the parties and their lawyers, or mediation can be arranged. If agreement can be reached the parties can file Consent Minutes of Order at the court.

If agreement is not reached the next step is to file a court application which is served on the respondent parent. The respondent is required to file responding documents and both parties are required to provide “disclosure”, that is, to provide copies of all relevant financial documents to the other party. This includes tax returns, pay slips, bank statements, superannuation statements, proof of expenses and any other relevant information.

If the matter still does not resolve, the application would be listed for trial. At the trial, a Judge usually hears evidence from both parents and from the child. They then make a decision as to the appropriate rate of maintenance. The Judge must consider the following matters:

• necessary expenses of the child – this includes a contribution to their living expenses and items such as study books and equipment, but HELP-HECS payments are not considered a necessary expense. For children with special needs, expenses associated with their disabilities can also be considered;
• the contribution the child is making to their own upkeep. There is an expectation that adult children will contribute to their own support by working part-time where this is possible. If the child has disabilities and is not able to work the applicant will need to provide medical evidence to establish this; and
• the capacity of each parent to provide financial support. This includes a consideration of each parent’s income, expenses, financial resources and earning capacity.

If a maintenance application is decided by a Judge it may take 6 months or more for the matter to be finalised. If an order for maintenance is made, it may not be backdated. If the application is unsuccessful, a court can make a costs order. It is important to have legal advice before commencing a court application.

For free and confidential legal advice, contact Legal Aid NT by calling the Helpline number 1800 019 343.

[Last Revised on 18 Jan 2021]

Collection of child support and maintenance liabilities

Collection by Private Arrangement

Services Australia – Child Support encourages parents to make their own arrangements for collection of payments. It is recommended that a reliable record of payments is maintained in the form of a regular bank transaction.

Private collection is only recommended in cases where the payer is likely to pay or has a good payment history, and where the child support assessments are based on reliable incomes that are not likely to be changed in the future.

Parents contemplating changing from Services Australia-Child Support collection to a private collection arrangement should seek legal advice about the possible implications of taking this step.

Private Collection and Family Tax Benefit(A)

If a case is privately collected between the parties, Centrelink assumes that the full payment is being transferred to the payee, and Family Tax Benefit (A) will be calculated on the amount stated in the assessment.

If a payee is receiving less than the amount calculated in the assessment, s/he can ask Services Australia-Child Support to commence collection of the liability. The Department can usually only backdate collection three months, so it is important to take action promptly if payments are not being made.

If a payee is receiving less than the assessed rate of child support and is fearful of asking the Department to collect because of threats or coercive behaviour from the payer, s/he can make an appointment to speak to a Centrelink Social Worker about obtaining a partial exemption from the Maintenance Action Test.

Private Collection and FTB(A) Overpayments

A child support assessment can be changed retrospectively to increase the amount of child support payable during past periods. This can occur as a result of late lodgement of tax returns which result in a higher rate of child support, or where an Estimate of Income is reconciled and replaced with a higher income. If a case was privately collected during these periods, the payee may be notified that s/he has been overpaid Family Tax Benefit (A), because Centrelink will automatically assume that the payee has received the amount s/he was supposed to receive pursuant to the (updated) assessment. If the debt of child support is not paid, parents can ask Centrelink to review the decision to create an overpayment.

Private Enforcement of Child Support Debts

Payees can personally make an application to a court to enforce collection of outstanding payments of child support. If the case is also registered for collection with Services Australia – Child Support, payees are required to advise the Department in writing of their intention to take private enforcement action. The Department must also be notified of any orders made by the court in relation to the debt. Legal advice should be sought before taking enforcement action.

Collection by Services Australia – Child Support

Services Australia-Child Support can register and collect periodic payments of child support or maintenance which are due pursuant to the following:

• child support assessments;
• child support agreements;
• court orders for adult child maintenance;
• court orders for spousal maintenance;
• overseas maintenance orders from reciprocating countries.

Once the liability is registered for collection with Services Australia-Child Support, the debt becomes a debt to the Commonwealth, and the Department becomes responsible for collection of the debt.

Agreements for non-periodic payments (such as school fees) cannot be enforced by Services Australia-Child Support.

Collection Methods

There are many options for a payer to make voluntary payments of child support or maintenance to Services Australia – Child Support. These include payment by bank transfer, BPay, Billpay at Australia Post, employer deductions or by online card payment using the Government EasyPay system.

If payments of child support are not made voluntarily, Services Australia-Child Support can collect payments from wages, bank accounts, tax refunds, compensation or insurance payments, Centrelink benefits, or any other source of available funds that can be identified. The Department has broad powers of enquiry to ascertain whether a payer has any such financial resources, particularly if arrears are accruing.

If a payer is failing to make payments and the debt is escalating, the Department can bring a court application seeking orders that assets be sold to pay child support or maintenance arrears.

The Department can also issue a Departure Prohibition Order to prevent a payer from leaving Australia until the outstanding arrears are paid or an acceptable payment arrangement is entered into.

Non-Agency Payments

Non-Agency Payments apply to cases that are being collected by Services Australia – Child Support. The payer can seek credit for in-kind or cash payments made in lieu of child support by advising the Department. If the payee agrees that such amounts were intended to be payments in lieu of child support, they will be fully credited against the payer’s child support liability.

However, if the payee does not agree, there are only very limited circumstances in which Non-Agency Payments can be credited. These are called Prescribed Non-Agency Payments (PNAPS) and primarily relate to:

• various educational expenses;
• essential medical and dental treatment; and
• payments towards accommodation, utilities and vehicle expenses of the payee.

Note: Prescribed Non-Agency Payments cannot be claimed by a payer who has at least Regular Care (14%) because the formula recognises that parents with regular care or shared care pay a reduced rate of child support on the basis that they are already contributing directly to these costs for the children.

Advice should be sought before making Prescribed Non-Agency Payments as the payer will only be able to receive a maximum credit of 30% of the future monthly liability, with any unused credit being carried over to the following months. The remaining 70% of the liability is required to be paid by the due date in order to be eligible for the 30% credit.

[Last Revised on 18 Jan 2021]

Court applications

In general, the child support scheme is an administrative scheme designed to operate without the need for court applications. However, there are some circumstances in which a party may make an application to a court in relation to child support matters. The most common situations are listed below:

Child Support Legislation and Family Law Act 1975 (Cth)

Paternity matters: either parent can apply to a court to resolve disputes involving paternity of children and entitlement to child support. The court may order DNA parentage testing in these cases. If a payer is excluded from paternity, a court may order the payee to repay child support paid by the payer.

Application for leave to change an assessment that is more than 18 months old: a court can give leave (permission) to change an assessment that is more than 18 months old, but not more than 7 years old.

Court review of ART decisions: Where a parent is dissatisfied with a decision by the Administrative Review Tribunal, an appeal can be made to a court but only on a question of law.

Child support agreements: Applications can be made to set aside child support agreements.

Lump sum applications: In limited circumstances, a court may order the payment of child support in a lump sum.

Stay orders: An order to stay (or suspend) collection of child support can be sought from the court in limited circumstances. Alternative administrative remedies apply in some circumstances.

Maintenance orders: Court orders and agreements can be made under the Family Law Act 1975 (Cth) for various types of maintenance payments, including maintenance for:

• adult children (18 and older) who are studying or have mental or physical disability
• children (under 18) who are living independently and applying for maintenance in their own right
• step-children (step-child maintenance)
• spouses (spousal maintenance)
• some cases where the payer is overseas.

Enforcement proceedings: A court can make orders to enforce the payment of a child support or maintenance debt.

Legal advice should be sought before applying to a court. Applicants should seek advice about the relative merit of their case, and the risk of a costs order if their application is unsuccessful.

[Last Revised on 18 Jan 2021]

Overseas child support and maintenance

There are many cases where one parent is living in Australia and the other parent is living overseas.

Australia has reciprocal arrangements with many countries for the collection of child support. If the receiving parent is living in Australia and the paying parent is living in a reciprocating country, it is likely that Services Australia – Child Support will be able to issue and enforce an Australian assessment of child support. Arrangements with each particular country differ, and some countries have better collection arrangements than others.

Disputes about parentage will need to be resolved before an assessment can be created. This can be difficult where one parent resides overseas.

Even if Australia does not have reciprocal arrangements with the country where one parent is residing, there may be some options for the payee to obtain child support. This is a complex area of law and legal advice should be obtained in each individual case.

Parents in Australia who have children living overseas may also be required to pay child support through Services Australia-Child Support. Often this child support has been ordered by a court in the country where the children reside. In some cases, it maybe possible to bring an application to an Australian court to review an overseas maintenance liability.

[Last Revised on 18 Jan 2021]