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Binding Child Support Agreements: What You Need to Know
By Gillian Yeend, Chamberlains Law Firm, Australia, December 7, 2021
A Binding Child Support Agreement (BCSA) is a written agreement between parents about child support payments.
It is a legally binding document requiring both parties to obtain independent legal advice as both parents must sign and agree to the terms.
It is regulated under the Child Support (Assessment) Act 1989 but may also affect some provisions under the Family Law Act 1975.
Section 80C of the Child Support (Assessment) Act states that the agreement is binding on the parties provided:
The agreement is in writing;
- The agreement is signed by the parties to the agreement;
- The agreement contains a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by them, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to:
- the effect of the agreement on the rights of that party; and
- the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement;
- The annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided;
- The agreement has not been terminated under section 80Dl and
- After the agreement has been signed, either the original agreement or a copy of the agreement is given to each party.
Section 80CA of the same Act states that a BCSA cannot be varied. It can only be terminated and replaced with a new BCSA. A BCSA can only be terminated by:
- A provision being included in a new BCSA made by the parties to the previous agreement to the effect that the previous agreement is terminated; or
- The parties to the previous agreement making a written ‘termination’ agreement that is binding on the parties and is to the effect that the agreement is terminated; or
- A court order setting aside the previous agreement under section 136 of the same Act; or
- Where a party to the agreement who is entitled to be paid or provided child support for the child under the agreement ceases to be an eligible carer for the child.
It is important to note that BCSA are governed by a different area of law and do not operate the same way as parenting plans, consent orders or any other such agreement that may concern parenting but not child support.
The amounts in which child support is paid can be assessed by Services Australia who can assist parties in assessing, collecting, and transferring child support payments.
There are certain rules that govern a party’s eligibility to apply for and receive child support payments and a formula on how they assess how much child support should be paid and by who.
The amount can also be agreed between the parties without assessment by Services Australia.