On the 5th of December 2019 the Greater Melbourne Family Law Pathways Network ran an event in conjunction with Victoria Legal Aid’s Child Support Legal Service to discuss “Child Support in Parenting Disputes”.
The event featured presentations from Kathryn Lieschke and Georgia Millen from Victoria Legal Aid’s Child Support Legal Service. The presenters provided an overview of the Child Support System (by describing the general tenor of the relevant legislation as at November 2019). A multitude of content was covered, including an inside look at the kinds of matters Victoria Legal Aid’s Child Support Service can assist clients with, as well as general discussions regarding the types of child support agreements, the processes and formulae that inform a child support assessment, what to do when a party disagrees with a child support decision, and much more.
Questions were asked throughout the presentation and at its conclusion. The “Child Support in Parenting Disputes” was designed for community service organization practitioners working with families or anyone looking for an opportunity to learn about the Child Support System. The Victorian Family Law Pathways Network – Greater Melbourne organised this event at the request of the Family Relationship Centres in the Greater Melbourne area.
An overview of Victoria Legal Aid’s Child Support Legal Service
Victoria Legal Aid’s Child Support Legal Service (CSLS) provides state-wide, in-house legal assistance to help eligible parents who have legal problems in relation to receiving or paying child support, adult maintenance or spousal maintenance. CSLS may gave information and/or legal advice, prepare documents, and/or represent litigants in court and in the Tribunal (AAT).
The CSLS also provides a telephone triage service, information and advice service and regularly visits VLA offices and most major regional centers.
Unless there is proof parentage or a presumption of parentage applies, the Child Support Registrar must be satisfied that the payer is the parent of the child. A presumption of parentage includes being named on the birth certificate, having a court finding as to parentage, where the child was born within a marriage, a signed statutory declaration as to parentage, or where the child was born in a co-habitual relationship where the parents lived together either 44 weeks before the child was born or 20 weeks after. Otherwise, a client will receive a ‘rejection’ letter from DHHS, at which point they can seek assistance from the CSLS.
VLA’s CSLS have not yet assisted a same-sex couple in this program. It was noted that presumptions to parentage can differ from those mentioned above in relation to same-sex couples.
Child support implications for care arrangements
There are many factors involving care arrangements that can have child support implications (specifically in regards to entitlements). This can include the number of nights spent with each parent – the speakers identified the care terms for different care percentage rates, also showing the number of nights in a year that equates to the care term where the care determination is based on nights. As an example, what is classified as a ‘regular’ term of care is a parent who has 14% to less than 35% of care – which in practical terms, means 52 - 127 nights per year.
Many issues arise when parents are in dispute about care arrangements. Disagreements often occur regarding the actual amount of care each parent has in comparison to parenting agreements, parenting plans or court orders. When these issues are disputed, and there is an alleged deviation from agreement, the Registrar will have regard to diary entries detailing actual care and/or third party statements. However, statements or statutory declarations by family members are not given a lot of weight. The speakers suggested that the Registrar will look more to independent third party statements as to the actual care arrangements, rather than those from family members, which are often presumed to be biased. The duty is on the parent alleging the deviation to prove the actual care arrangements, and show attempts to alter the current arrangements through these methods. The speakers urged practitioners to tell their clients to notify the department as soon as possible after deviation (within 28 days), as child support payments will not be backdated.
This topic of discussion went more in-depth at the prompt of an audience question – whether the Registrar would simply take the word of the alleging parent at face value. The speakers responded that when investigating an alleged deviation of care arrangements, DHHS is required to contact the other parent to see what they have to say. However, if their contact details are not updated with DHHS or they simply do not respond, they will not be able to be contacted. The speakers were unsure how many attempts DHHS will make contact the other parent in these circumstances, and so the audience members were pointed toward an online resource by Centrelink entitled the ‘Child Support Legal Guide’. However, both speakers reiterated that the Registrar must be reasonably satisfied as to the ‘actual care’ being alleged – no one is simply taken at face value. Another audience member asked how an alleging parent can show attempts to alter the current arrangements. The speakers said the alleging parent can do this in a number of ways, primarily by providing documentation that shows they have contacted a Family Relationship Centre, or have attempted negotiation with the other parent.
The interaction between child support and Centrelink
The speakers explained how a client’s child support entitlements can impact their family tax benefit at the end of the financial year. They suggested practitioners inform their clients about the disbursements method (which they urged clients to opt into over the entitlements method). Opting into this method means that the family tax benefit a client receives will be based on the amount of child support they actually received throughout the financial year, rather than what they were entitled to. If clients are subscribed to the entitlements method, it will be assumed that the parent received all their entitlements, and so their family tax benefit may be significantly less.
On a similar note, the speakers urged clients to opt into the child support collect method rather than the private collect method. This means that child support payments can go through the department and be deemed as payments intended for child support. It also means payments can be directly taken out of the payee’s tax. The private collect method means that child support is privately exchanged between the parents, and issues may arise where one party alleges that money was not for child support but something else.
The speakers rounded off this section of the presentation by identifying that parties can both agree to non-agency payments in-lieu of a cash/agency payment. When this occurs, Child Support may still credit that non-agency payment as valid child support (for example, paying for school fees or another compulsory expense). Even where there is no intention or no agreement for this, Child Support can and will credit the payment (or a percentage of the payment) as a child support payment each month.
Change of assessment and related challenges (including enforcement)
In order to apply for a change of assessment in special circumstances, one of ten possible grounds must be met. In addition to meeting one of the ten grounds, the parent must show that there are special circumstances and that it is just, equitable and proper to change the assessment. The reasons to apply for a change include the costs of helping the parent spend time or communicate with the child, the special needs of the child, costs of the child being cared for, educated or trained in the manner the parents intended (this can include private schooling), and income, earning capacity, property or financial resources of the child.
This topic resulted in many questions from the audience surrounding how a parent can show that another parent is intentionally downplaying their earning capacity in order to avoid paying more child support. The speakers mentioned that in order to combat this circumstance, a lot more social media (mainly Facebook) posts are being submitted to Child Support as evidence. The speakers noted that during this process, the applicant needs to disclose a lot of information, which can sometimes pose a risk, particularly if the application is successful. If family violence is a concern, the applicant can write to DHHS to do a ‘Registrar initiated’ change of assessment. This makes it look as though the applicant did not apply for a change of assessment, but that DHHS initiated the application. If this route is taken, the applicant should redact any information they do not want the other party to see – DHHS will not automatically do this.
The speakers noted that the most common grounds for a change of assessment that CLCS has assisted with so far is where the payer has not disclosed a true reflection of their true income, and/or their true capacity to earn. Applicants can try to persuade DHHS by showing an ‘established history’ of the prospective payer’s capacity to earn (e.g. through Facebook posts/payslips). However, the speakers both acknowledged that even where the applicant is successful and DHHS acknowledges this discrepancy, the real issue is then enforcing that debt. This is where opting into the disbursements method rather than the entitlements method is so important for clients – so that their family tax benefit is based on what they actually received in child support payments.
Conclusion & Feedback
The presentation concluded with some brief points. The speakers noted that it is possible for parents to enter into a binding child support agreement – these are very difficult to set aside, and will only be set aside in truly exceptional circumstances. However, CLCS does not assist parties with binding child support agreements. The topics of adult child maintenance and financial spousal maintenance were briefly covered, as the speakers acknowledged these matters are usually straightforward.
The ‘Child Support in Parenting Disputes’ was an informative and engaging event, attended mainly by family lawyers and family dispute resolution practitioners who were looking for answers for their clients. It was a great opportunity for sector professionals to learn more about VLA’s Child Support Legal Service, so they can provide some primary information to their clients and where necessary, refer them for more in-depth legal support.
