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Erin Smyth- Lawyer
Taking matters into your own hands
Erin Smyth, Lawyer, for SingleMum.com.au | 26 September 2011
When it comes to child support most mothers initially think of utilising the Child Support Agency to determine the amount of money the father should pay and also to monitor this process and review the amount if need be. There are however, two other options that can be utilised by single mothers. These options are Limited and Binding Child Support Agreements.
Limited and Binding Child Support Agreements can:
Make provision for payments of periodic amounts (for example $500.00 per month)
Make provision for a lump sum payment instead of periodic payments. This lump sum can be cash or an asset such as a house or a car
Make provision for an arrangement where child support is paid in another way, such as making mortgage or health care payments or paying for the child’s school fees
Make provision for when the child support liability should end, such as when the mother is able to work full time.
You do not need legal advice (even though obtaining such advice is recommended) before signing a Limited Agreement. A Limited Agreement must be in writing, be signed by both parties and include at least one of the provisions set out above. It is also important to note that an administrative assessment must be in force (meaning that the Child Support Agency must have assessed the amount to be paid by one parent to the other) and the amount of child support payable under the Agreement must be at least equal to the amount assessed by the Agency.For a Binding Child Support Agreement to be in place it must again be in writing, signed by both parties and include one of the provisions set out above. The parents wishing to enter into the Agreement must receive independent legal advice and certificates must be attached to the Agreement stating that this legal advice has been provided.A Binding Child Support Agreement can be in place even if no administrative assessment has been made by the Child Support Agency and in a Binding Agreement a parent can agree to receive an amount of money that is less than the assessed rate.It is possible to end Limited and Binding Agreements. This can be achieved by the parents signing a Termination Agreement. You should ensure that a ‘Termination’ clause is included in your Limited or Binding Agreement.
Another way to end a Limited or Binding Agreement involves a ‘Notional Assessment’. A Notional Assessment is an assessment carried out by the Child Support Agency to calculate what the assessment (amount payable) would be if not for the Limited or Binding Agreement. A Notional Assessment is carried out by the Agency when they initially receive the Agreement from the parents, or the lawyer for the parents, and then every three years thereafter. If the assessment is 15% more or less than the amount set in the Agreement then it can be terminated.
You are also able to apply to the Court to set aside an Agreement. The Court has set aside Agreements on the following grounds:
Fraud, undue influence or unconscionable conduct;
For a Limited Agreement: if there has been a significant change in circumstances; and
For a Binding Agreement: if there has been an exceptional change in circumstances.
Overall Child Support Agreements provide you with an opportunity to tailor the child support received by you more specifically to your needs and the needs of your child or children. They should however, be entered into with caution and after receiving legal advice.
This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full singlemum.com.au Disclaimer here
About Erin Smyth
Erin has a Bachelor of Laws and Legal Practice and a Bachelor of Arts. Erin has practised exclusively in family law and de facto law since completing her degree in 2007. Erin commenced as an Associate of Camatta Lempens in July 2009. She has experience in all areas of family law and de facto property matters and also matters involving children.