Legal practitioners play an important role in the administration of the Child Support Scheme.
Most parents who separate will come to us for information about the amount, types and collection of Child Support. The legal profession also plays an important role in the administration of the Child Support Scheme.
As a legal practitioner, you may be asked for advice in these matters.
Change of assessment in special circumstances
If parents believe the Child Support assessment we make is unfair they can ask us to change that assessment.
To be successful, they must be able to establish special circumstances under one or more of the 10 change of assessment reasons, and that it would be fair to both parents, the children and the community to change the assessment. Parents cannot have a representative appear for them during the change of assessment process.
If parents think the change of assessment decision is wrong, parents usually need to seek an administrative review from us before going to court. The initial step is for one or both parents to object to the decision. Most objection decisions can be appealed to the Administrative Appeals Tribunal (AAT). The AAT decision can be appealed to a court if there has been an error of law. The parents may want to engage lawyers to represent them in this process.
Child Support agreements
Parents may decide to make an agreement about the amount and form of Child Support to be paid as an alternative to an assessment made by us. There are two types of agreements—limited agreements and binding agreements. Parents may want to involve a lawyer in drafting a Child Support agreement.
If parents enter into or want to end a binding agreement they must get legal advice. We require legal practitioners to complete a certificate to verify that parents received legal advice before entering into a binding agreement for Child Support.
For the purposes of Child Support, we will not accept an agreement that has been certified by an overseas lawyer if they have not been admitted by the Supreme Court of a state or territory of Australia, or a Federal court, or they do not hold a current practising certificate.
Sometimes we are unable to accept an application for Child Support or add a child to an existing assessment because the applicant is unable to satisfy the requirements for presumption that one or both parties are parents of a child named in the application.
The applicant will sometimes need to apply to a court for a declaration of eligibility and may need to be represented by a lawyer in those proceedings. Any declaration will often be made on the basis of parentage testing.
A person who is required to pay Child Support for a child may apply to a court for a declaration that they should not be assessed to pay Child Support because they are not a parent of the child. The applicant may prefer to be represented by a lawyer in those proceedings. Any declaration will often be made on the basis of parentage testing.
Appeals against decisions
Parents can formally object to most decisions we make. Most objection decisions can be appealed to the AAT.
For some decisions, there are 2 levels of appeal to the AAT. Parents can request an AAT first review for most objection decisions. If they do not agree with the outcome of the first review, they can request an AAT second review for:
- a decision to refuse an application for an extension of time in which to apply for the AAT first review
- a care percentage decision
- a decision to make, or not make, determination about the date of effect of a care percentage decision
The AAT review decision can be appealed to the court if there has been an error of law. The parents may want to engage lawyers to represent them in this process.
Legal certificate for Child Support agreements
A legal practitioner is required to complete a Legal certificate form (CS4137) to verify the parents received legal advice before entering into a binding agreement for Child Support.
This is the annexure to a binding agreement, as required by the Australian Department of Human Services under Section 80C of the Child Support (Assessment) Act 1989.
The Child Support Guide
The Department of Social Services Child Support Guide outlines the administration of the Child Support Scheme.
Legal practitioners can call our hotline for help with handling child support matters, including drafting agreements or court orders. Call 1800 004 351 or 1800 180 272 for international cases.
Parents receiving legal advice must get a legal certificate
We require legal practitioners to complete a Legal certificate form (CS4137) to verify that parents received legal advice before entering into a binding agreement for Child Support.