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Do I Need a Binding Child Support Agreement?

If your custody arrangements involve you caring for your children more than 35% of the time, it’s important that you have adequate financial support. A Binding Child Support Agreement (BSCA) can be negotiated with your ex and offers a secure option.

What is a binding child support agreement?

Child support is covered by the Child Support (Assessment) Act. A BCSA is an agreement that is written and signed by both parents to a child that states the parameters for child support payments. It concerns:

the amounts to be paid
the frequency of which the payments are made
and the method of payment

A BCSA can be made for whatever payments the parents choose to agree on. You do not have to have a standard child support assessment administered by Services Australia.

Keep in mind that a BCSA is different to a limited child support agreement. A limited agreement is reliant upon the child support assessment, where the payments are equal to or more than the assessment.

What is the timeline for getting a binding child support agreement? Is it part of divorce?

You can make a BCSA if you are living apart from your ex. This means that you can make one any time during your separation or divorce.

The requirements for a valid BCSA are as follows:

In writing and signed by both parties
Legal advice is sought independently by both parents
Each lawyer signs a certificate acknowledging that advice was shared
Lawyers’ certificates are attached

If you want to receive child support under a BCSA, you will need to have at least 35% of the care of your children. Usually this is calculated by you and your ex agreeing on how much care you provide by indicating how many nights you care for your child in a given period of time. If you can’t agree, Services Australia will decide based on evidence you give.

If you cannot agree on child support, you can apply to Child Support Services Australia to receive a child support assessment on how much should be paid.

Once you have completed and signed your BCSA, you can register it with Services Australia and then the Family Court. You can go through the Court to enforce your agreement if your ex does not comply.

Child support is not a requirement of your property settlement or divorce. It is a separate and optional matter, as it may not be necessary for all situations.

In which situations is a binding child support agreement recommended?

Child support exists to allow your child to receive regular monetary support for their everyday needs. Think of it as a supplement that allows your child to have the support they would usually have with the income of two parents. Remember that child support is meant for your children, spousal maintenance is another matter.

The situations when a BCSA is recommended are where:

You want your child to go to a private school
You want to have private health insurance for your child
Your child wants to be involved in extracurricular activities like sport or music
Your child has considerable medical or education needs

Your lawyers will make sure that all these costs and funding arrangements are properly detailed to ensure your sense of security when caring for and raising your children.

What are the advantages of a binding child support agreement?

Having a BCSA means certainty and security, as both you and your ex know what will be paid and when. Agreeing on a set amount of child support also makes it easier for both parties to budget around. If you opt for a standard child support assessment by Services Australia, the amount you will pay or receive may change. It depends on both parents reporting income and changes in circumstances.

These agreements tend to be more flexible and therefore suited to your individual situation. So, you will be able to negotiate terms you can both agree on.

You can enforce a BCSA through the Court, particularly those payments toward third party fees like lessons and training for extracurriculars and private schooling, which the Services Australia standard child support assessment cannot enforce.

BCSAs also tend to be cheaper than applying to the Court for a consent order.

What are the disadvantages?

A BCSA is not always the best for those who have experienced family violence or high-conflict divorces. In these cases, it is best to go to Services Australia for child support.

In some situations, you may have agreed to pay more than you need to, which can affect your property settlement.

The main issue with BCSAs is that you cannot simply change them when you want to alter your agreement. The agreement must end through a court order or by agreement between you and your ex.

What happens when custody arrangements change?

When significant life changes occur, you may want to change your custody arrangements. These situations can include

Significant promotion or loss of employment by either parent
A child gains significant medical need
A child enters a new life stage with different needs

These life changes often mean a change in custody arrangements, and therefore, child support agreements.

You cannot simply change payments without legally ending the current BCSA. This can cause big problems for you later, especially for your property settlement.

If your agreement has not changed and your ex is not following their obligations, be sure to seek legal advice if you want to enforce the BCSA.

In order to change the BCSA, you will need to terminate the current agreement. You have three options

Agree to end the current agreement in writing signed by both parties.
Renegotiate a new agreement.
Apply for a court order for child support payments.

If circumstances change, and you want a new agreement, seek professional legal advice.

Need some help drafting agreements? Talk to our lawyers at Divorce Hub.

The purpose of this article is to provide general information and does not constitute legal advice. Please get in touch to discuss your specific circumstances.