I pay child support so why can't I see my kids? How child support works.
For parents who are unable to see their children, or do not have as much access to their children as they would like, and yet pay child support, there is often much confusion as to why this may be the case. This article will explain how child support is determined, why it might change, or why a parent may not see their child as much as they may like.
Care arrangements and child support are often confused as one and the same. Child support and care arrangements are connected although they are two very different concepts. Child support is the financial contribution for raising your children and is usually assessed by the Child Support Agency. It is largely determined by using a formula, based on income, age of the child/ren, and the amount of time your child is in your care. Care arrangements on the other hand are determined by the Family Law Act. When it comes to care arrangements, who the child/ren spend more time with, or are in the care of, is determined based on what is ‘in the child's best interests’.
How child support payments work
Initially when determining child support there are two ways this can be calculated, either by the Child Support Agency or by an agreement negotiated between the parents. The first option is for an administrative assessment to be done resulting in a parent's application to the Agency which uses a strict formula that takes into account the parent's income, the children's ages and the respective parent’s level of care for the children. By way of example, where one parent may have more time with their child, if the child is an infant and still being breastfed, the parent who has less care of the child will be the one to pay the other parent child support.
After this initial assessment, the Agency then has the ability to amend an assessment if the level of care changes between the parties. This means for example, that if at any time one parent is withholding access to a child, that parent may have the ability to approach the Child Support Agency for a reassessment of the other party’s child support obligations.
The other option is to put in place a Binding or Limited Child Support Agreement which has been negotiated between the parties. The parents decide what kind of child support is going to be paid to whom and how it is going to be paid. These types of agreements should ideally include a degree of flexibility so if the care percentage changes significantly, there is room to move in the Agreement. If the person receiving child support has less than 35% care however, the agreement terminates unless the Agreement itself provides for a period of suspension of the Agreement during that period of change of care.
How are the ‘best interests of a child’ determined?
There are two primary considerations when looking at the best interests of a child. The first is the benefit to the child of having a meaningful relationship with each parent. The second consideration is the need to protect the child from risk of harm.
Where there is an allegation of risk of harm, the law says the Judge must prioritise the need to protect the child over and above the benefit to the child of having a meaningful relationship with the parents. This might mean that in order to protect a child, but still maintain a relationship with a parent, contact will be allowed but it will be supervised either with an agreed supervisor, or at a supervised contact centre. Where there is an allegation of risk of harm, the Court may make a supervised contact Order on an interim basis until the evidence about the risk of harm is determined by the Court on a final basis.
The parent who is having access to their child withheld is able to request an urgent Court listing date if they have not seen their child for some time and they believe the absence is damaging the child’s relationship with them. Whether or not they are allocated an urgent date, however, is determined by the Court.
When access may be impacted by the Court
One situation of how access can be impacted, for example, may be that there is a father who is not getting much time with his children. He is paying child support in accordance with obligations however there has been an allegation by the mother that there is some risk of harm to the children.
The Court, irrespective of the fact that he is paying child support and paying it properly, has to look at the risk of harm element in the parenting matter. It is weighed up in terms of the child’s best interests to be spending time with the father and what that time should look like.
This is not to say child support obligations are inconsequential in Court. When it comes to a parenting matter, the Judge can look at whether or not a parent is paying child support and may draw a negative inference about a parent who is not fulfilling their obligations to maintain the child and how that may reflect their attitude to parenting responsibilities.
A failure to maintain the child properly can be just one of many factors taken into account when a Judge is determining the best interest for the child. However, it is not something significant enough to be the deciding factor in what determines the case in either parties’ favour.
Generally speaking, recovery orders, where one parent has taken a child away, are given top priority followed by other parenting-related matters. Matters relating to parenting are also are typically prioritised over property matters in the Family and Federal Circuit Courts.
In cases where alleged sexual abuse may be involved, the Federal Circuit Court is the first point of call for most applications and they can sometimes be transferred to the Family Court. There is a special list in the Family Courts called the Magellan list, and that list prioritises sexual assault matters and it can hear them faster than through the Federal Circuit Court. The goal of the Magellan List is to get results within a few months, which is generally much faster than the average 12 - 18 months you would be looking at for a parenting matter to be resolved in Court under normal circumstances.
So while there is some connection between child support and parenting care arrangements, they are determined in different ways. Paying child support obligations alone is not enough of a factor for access or visitation to be given, if it is not deemed to be in the best interests of the child.
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