The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

6.1.2 Binding child support agreements

Context

Binding child support agreements (1.1.B.30) are a type of child support (1.1.C.60) agreement which operate in a similar manner to financial agreements under family law that separating parents (1.1.P.10) might make in relation to property, superannuation and spousal maintenance.

This topic outlines the policy specific to binding child support agreements. The rules outlined here operate in concert with the general requirements of child support agreements (6.1.1). Information about when a binding child support agreement can be terminated is provided at 6.4.2.

Act references

CSA Act Part 6

On this page

Requirements of binding child support agreements

Each party to a binding child support agreement must have received independent legal advice before entering the agreement. This legal advice must be provided by a legal practitioner who has been admitted by the Supreme Court of a state or territory of Australia and holds a current practicing certificate. Legal advice will not be considered independent in circumstances where:

  • one party (as a qualified legal practitioner) has provided legal advice to the other party to the agreement
  • one party (as a qualified legal practitioner) has provided legal advice to themselves, or
  • the same legal practitioner has provided legal advice to both parties.

In such cases, the Registrar will determine that the agreement is not a binding child support agreement under CSA Act section 80C(2). The parent who asked for the agreement to be accepted may wish to withdraw the application for acceptance and re-apply once independent legal advice has been obtained. Alternatively, the applicant could ask for the agreement to be accepted as a limited agreement. However, the rules for the acceptance of a limited agreement are different and may prevent the acceptance of the agreement. See 6.1.3.

A binding child support agreement must:

  • be in writing, and signed by both parents or the parent/s and eligible non-parent carer
  • include a statement that each party has received independent legal advice as to the effect and advantages and/or disadvantages of the agreement, before it was signed, and
  • include an annexure, for each of the parties to the agreement, signed by the person who provided the legal advice, which certifies that the advice was provided (CSA Act section 80C).

There is no requirement for an administrative assessment (1.1.A.30) to be in place prior to the making or acceptance of a binding child support agreement, except in cases such as binding agreements that create lump sum payment obligations under the CSA Act section 84(1)(e). A child support agreement can only be made between the parents of a child or between the parents and any non-parent carer eligible to be paid child support (CSA Act section 83). Therefore if there is no existing administrative assessment, the Registrar must also be satisfied that the parties to the agreement are parents or eligible non-parent carers before a binding agreement can be accepted. See 2.1.3 for information about when the Registrar will be satisfied as to parentage or 2.1.1 for information about eligible carers (1.1.E.10).

A binding child support agreement cannot be varied (CSA Act section 80CA). To change a binding child support agreement, the agreement must be terminated and replaced with a new binding child support agreement. For further information on how a binding child support agreement can be terminated, see 6.4.2. For information on when a binding child support agreement is suspended, see 6.4.3.

A document that forms a property division order, parenting plan, maintenance agreement or financial agreement under the FL Act, can also be a binding child support agreement for child support purposes if it complies with the necessary requirements in the CSA Act section 80C, section 82, section 83, section 84 and section 85 (CSA Act section 84(5)).

Alterations to binding child support agreements

Parties must sign identical documents to make a valid child support agreement. Any alterations must be initialled by both parties to show that they were made before the agreement was signed.

If an alteration is not initialled, or is only initialled by one party, and the parties confirm the alteration was made before the agreement was signed, then the parties have signed identical documents and the altered agreement is valid. If an alteration was made after one, or both parties signed the agreement and they want the altered agreement to have effect, any alterations must be initialled by the parties and the agreement signed again for the altered agreement to be valid.

If an alteration is not initialled, or is only initialled by one party and there is a dispute between the parties as to whether the alteration was made before or after an agreement was signed, the Registrar must decide whether they signed an identical document. If both parties signed an identical document before an alteration was made, the Registrar can accept the original agreement without taking account of the alteration. If the alteration was made after the agreement was signed by one party but before it was signed by the other, the parties did not sign the same document and there is no agreement between them.

Alterations to a binding child support agreement can only be made with legal advice, statements and certificates being obtained by both parties before they initial any changes.

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