For parents with children, one of the most important issues that usually cannot be avoided in a divorce is child support. After a divorce in Australia, what should you do if your former partner refuses to pay child support payment?
Case Study
Ms W and Mr L finalised their divorce in Australia. The child is primarily cared for by Ms W. At the time of the divorce, Mr L agreed to pay child support, but he has now stopped making these payments.
Is one party responsible for paying child support?
Under the Child Support (Assessment) Act 1989, where the parties are divorced, the party who does not have primary care of the child is responsible for providing financial support to the other party who does provide primary care for the child.
How is the amount of child support determined?
One party can provide financial support to the other in a number of ways, but the most common approach is to seek assistance from the Child Support Agency / Department of Human Services. An application can be made to the agency for a child support assessment, which determines the regular periodic payments each party must make.
In making this assessment, the Child Support Agency collects financial information from both parties, including their taxable incomes, and then considers the proportion of care each parent provides for the child. The agency then applies the relevant formula to calculate the amount of child support payable.
Entering into a child support agreement
Of course, parents may also choose not to go through the assessment process above when agreeing to pay child support. For example, the support in question might be a lump-sum child support payment, school fees, or other expenses. In that case, the parents can enter into a child support agreement, which may be one of the following:
- binding child support agreement
- limited child support agreement
We discussed these agreements in a previous article on how to sign a child support agreement in Australia.
Child support agreements allow parents to reach a financial agreement on child support matters. The agreement can cover expenses such as the child’s school fees, medical costs, tutoring fees, and many others.
What if one party refuses to pay child support?
Once an assessment has been completed and one party fails to pay child support, a child support debt arises. This debt should be reported to the Child Support Agency immediately, and the agency will then take steps to help recover the debt.
If a party refuses to pay child support and allows the debt to accumulate, the Child Support Agency has the following six powers:
1. The power to require the employer of the paying parent to deduct the relevant amount directly from their wages.
2. The power to apply the paying parent’s tax refund towards child support.
3. The power to deduct a lump sum directly from the paying parent’s bank account.
4. The power to collect child support from income support payments.
5. The power to issue an overseas travel ban against the paying parent, preventing them from leaving Australia.
6. If other enforcement methods are unsuccessful, the power to commence court proceedings against the paying parent.
In addition, if a party is late in paying child support, the Child Support Agency may impose a penalty. This penalty is not paid to the recipient of the child support; it is paid to the Australian Government.
If a parent stops or refuses to pay child support, or attempts to reduce their income in order to reduce their child support liability, the Child Support Agency has the power to investigate the situation — specifically, to investigate any mismatch between lifestyle and reported income. The agency may also review individuals who are typically paid in cash, self-employed persons, and similar cases.
Finally
In Australia, failing to pay child support is treated as a serious matter. If both parties have reached agreement on child support, we recommend engaging a professional family lawyer to draft the relevant agreement, with both parties signing it as evidence. If one party refuses, or is unable to pay child support due to special circumstances, the other party can also seek the assistance of a lawyer to protect their own and their child’s rights through legal means — for example, by recovering child support debts as discussed above.
