Once in place, child support agreements are difficult to vary. However, an agreement may terminate and be replaced with a child support assessment, where a child's primary residence changes.
Change in circumstances
There are limited circumstances in which a child support agreement can be terminated.
One circumstance in which a child support agreement can be terminated is if the child's living arrangements change so that the parent or carer receiving child support payments has less than 35% of the caring responsibilities of the child – for example, four days or less per fortnight.
In this case, the parent would no longer be an eligible carer and the child support agreement would become invalid and may terminate, triggering a fresh child support assessment for the child based on their new living situation.
Terminating the child support agreement in these circumstances is not immediate. The timing of the termination, or whether the child support agreement is terminated at all, can be complex.
Under the Child Support (Assessment) Act 1989 (the Act), a change in care arrangements may trigger an "interim period" under which the existing child support agreement will continue to apply. Depending on the specific circumstances, the interim period could cease immediately, or carry on for up to 52 weeks.
Once the interim period ends, if the parent receiving child support payments continues to have less than 35% care of the child, the child support agreement will be suspended. If a child support agreement is suspended, no payments are required to be made during that period.
Suspension and termination
The child support agreement will be suspended for at least 28 days, but it could be suspended for a longer period of up to 26 weeks if any of the following apply:
- A longer suspension period is provided for within the child support agreement;
- The parties notify the Child Support Registrar that they agree to the suspension period extending beyond the 28 days; or
- The Child Support Registrar is satisfied that there are special circumstances that apply.
Once a child support agreement is terminated, then it cannot be revived without entering into a fresh agreement. The application of these provisions is highly complex, so it is important to be aware of these provisions and seek specific advice if they may apply to you. This includes if:
- you are considering entering into a child support agreement; or
- you are a party to an existing child support agreement, and:
- there has been a change in care arrangements since it was signed such that the parent receiving child support might now have less than 35% care (five days per fortnight); or
- you anticipate that there may be a change in care arrangements, which might include:
- the children attending boarding school; or
- changes to care arrangements due to COVID-19 and border closures.
Lander & Rogers' family lawyers have extensive experience advising individuals on parenting and child support matters. Please contact a member of our Family & Relationship Law team for more information on the topics raised in this article.
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