In Australia, both parents are responsible for financially supporting their children under 18 after a separation or divorce to the extent that they are reasonably able to do so.
Usually, one parent will pay child support to the other as a contribution to help with the cost of child-related expenses such as food, clothes, education and more.
As a result, it can be financially challenging if the ‘payer’ parent suddenly stops paying.
What should you do if your co-parent starts missing payments or only pays some of the agreed amount?
Well, the answer first depends on how you manage your child support with your co-parent.
How is your child support collected?
You have three options for arranging child support payment and collection:
- Negotiating an informal, private arrangement with your co-parent (sometimes called a ‘handshake deal’).
- Having an agreement about child support, documented in the form of a written contract between parents called a Child Support Agreement.
- Registering with the Department of Human Services (DHS) Child Support Agency to collect child support payments on your behalf.
Option 1: The Child Support Handshake Agreement
Under the first option, you and your co-parent arrange child support between yourselves – how much will be paid, and when, and what form it will take – whether it will be a periodic amount or payment to third-party service providers (schools, private health insurers, medical practitioners, etc.), or a mix of both.
As, under this option, child support is entirely managed between the parents, it is only for cases where parents are cooperative. If the payer parent later ‘stops’ paying, the informality of the arrangement means that it cannot be enforced.
At that point, one of the below options will need to be considered.
Option 2: Formal Child Support Agreement
Under the second option, you and your co-parent still agree on the child support, which will be payable for your child/ren such as:
- Who will pay;
- How much;
- What form that payment will take;
- How long that will go on for;
The difference is that agreement is documented in a way which makes it binding and legally enforceable – the Child Support Agreement.
If the payer parent stops paying, you can ask the Child Support Agency to collect any payments in arrears of the periodic support which have arisen under the Agreement.
As the Agency will not collect non-periodic child support under a Child Support Agreement, you can apply to the Court for orders enforcing payment of this non-periodic child support.
This might, for example, take the form of an order that the arrears are paid by a specified date, and in default of compliance, then an item of the payer parent’s property is sold.
An application may also be made for child support to thereafter be paid in a lump sum from the remaining proceeds of sale of that asset so that the same situation does not re-occur.
Option 3: Department of Human Services (DHS) collects child support payments on your behalf
Under the third option, you are asking the Child Support Agency via the DHS, to assess the child support payable in your family situation.
This is called the ‘administrative assessment’ of child support.
It will be based on a number of variables, including the incomes of each parent (after allowing for a self-support amount), the number of children and their ages, and the number of nights the children spend in the care of each parent.
The assessment will ordinarily require one parent to pay periodic support to the other. This assessment will vary as each of the underlying variables changes (e.g. if one parent’s income increases or decreases).
If the payer parent does not pay, the Agency will collect that support. This can occur in a number of ways, including:
- Garnisheeing the payer’s wages (via their employer) or via their income tax returns;
- Seeking orders for payment in Court (including liquidation of assets to achieve that outcome);
- Issuing bans which prevent payers with child support debts from leaving the Commonwealth of Australia.
Four things to do if your child support payments fall behind or stop
Here are some steps to take if your co-parent stops making child support payments.
1. Talk to the other parent (if possible)
There are many reasons why your co-parent might not have made a payment, including the possibility they’ve had a change of circumstances that has affected their financial capacity.
A discussion will reveal the problem and help you assess whether that situation is legitimate and real and how you respond to it.
For example, whether you agree to arrears building up for a period of time on the basis that they will be paid by a specified date.
2. Don’t delay taking action
As soon as a problem with payment has arisen, consider your options – Do not let the situation go on too long.
If you have been on an informal/voluntary arrangement, it may be time to consider a more formal and enforceable option for managing child support from that point onwards.
For example, by applying for an assessment of child support via the Agency.
If you already have a Child Support Agreement in place, acting quickly may mean that, if you need to apply to a Court for orders as to payment, you are doing so at a time when there may be sufficient assets held by the payer to repair the situation.
3. Get legal advice
Enforcing unpaid child support (for example, arrears of non-periodic support arising under a Child Support Agreement) through the courts can be expensive and time-consuming.
That’s why it’s often a better idea to get legal advice before starting any court proceedings, so you can understand all your options.
Sometimes, the costs of enforcement can eat into the arrears those steps will recover, with the result that you are not financially ‘in front’.
Other approaches may be needed or alternatively, it may be necessary to let arrears build to a particular level, to make it commercially justifiable to pursue them.
An experienced family lawyer will be able to model different options for you in terms of time and cost, to help you isolate the most cost-effective approach.
4. Contact the Agency to ask them to start collecting your child support
Unfortunately, the DHS can’t help you recover all forms of unpaid child support (it will not collect non-periodic child support under a Child Support Agreement).
However, they can take over responsibility for ongoing collection and any outstanding payments of periodic support under a Child Support Agreement going back three months.
Keep child support separate from child contact
While it can be tempting to deny parenting time if child support isn’t paid, do not automatically link these issues.
Under Australian Family Law, the child’s interests must come first, and children have a right to a meaningful relationship with both parents, regardless of any support being paid or withheld.
That is not to say that a parent’s refusal to provide for the needs of a child is irrelevant, but it is not a basis on which to summarily suspend parenting time.
This concern will be taken into account when assessing the best interests of a child in the context of parenting time they should spend with each parent.
Our Family Lawyers Can Help
BGM Family Lawyers is a family law firm on the Gold Coast.
Child support law can be complex and tricky to navigate as each scenario is different.
To receive expert help, call 1300 246 529, email info.bgm@bgm.legal or fill in this form.
