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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

If you have separated and have children, you may be entitled to receive financial support from the other parent for your children. Alternatively, you may be the parent responsible for providing financial support. This is known as child support.

If you are a non-parent carer, you may also be entitled to child support payments from the parents of the children that you provide care for.

Child support is usually payable until a child turns 18 or completes their secondary school education (whichever comes later). Payments can continue beyond that time for children who continue to study, or who suffer from a physical or mental disability. In these circumstances, a Court exercising family law jurisdiction can make “adult child maintenance” orders.

Am I eligible to receive child support?

You will be eligible for child support if you are the legal parent or non-parent carer of the child, and meet certain residency rules.  

A child support assessment can be made by Child Support Services Australia (CSA) if both you and the other parent are living in Australia, or where one of you is living in Australia and the other is living in a reciprocating jurisdiction.

An assessment can also be made provided that:

  • the parent making payment is living in Australia,
  • the children are living in Australia, and
  • both the parent and the children are listed as Australian residents or Australian citizens.

If you live in a reciprocating jurisdiction and wish to apply for child support, you will need to submit your application to the relevant authority in your country of residence. They will then pass your application on to CSA.

There are various options available when making arrangements for child support, which we cover in our article: Child Support: What are my options?

Do I have a responsibility to pay child support?

The obligation to pay child support lies solely with the parents of children, including adoptive parents and same sex couples in specific situations.

If you are assessed to pay child support and you are not the parent, the person who you are required to pay child support to may elect to end the CSA assessment.

If they are unwilling to end the assessment, you must apply directly to the Court for a declaration that you are not liable to pay child support. The application must be made within 56 days of you having been served with the CSA assessment, although it may be possible to apply beyond that time in limited situations. Your application and declaration will need to be supported by an Affidavit containing evidence as to why you are not the parent, and are therefore not required make child support payments.

If a declaration is made, the Court has the discretion to make orders for recovery of amounts paid under a child support assessment, or a registered maintenance liability, if it is fair in the circumstances. When making this decision, the Court will consider a number of factors, including whether the mother knew or suspected that you were not the father of the child, and any delay on your part in making the declaration application.

What can I do if the other parent is not making payments?

If you are entitled to child support and the other parent is not making payments, you can apply to CSA to have child support taken out of their salary.

CSA can also intercept and take arrears out of tax refunds.

In some situations, a paying parent who has accumulated significant child support arrears can be prevented from leaving the country until such time as the arrears have been paid.

What can I do if I can’t make a payment on time?

If there has been a change to your circumstances making it difficult for you to pay child support at the level assessed, or you have greater care of the children, it is important to notify CSA without delay to ensure that you are re-assessed to pay the right level of support.

If you fail to pay your child support obligation on time, CSA may apply late payment penalties, although there is usually scope to negotiate a repayment plan with CSA which if complied with could result in penalties being waived.

How can Sharrock Pitman Legal help?

Child support is a complex area of family and relationship law, and it is important to act quickly to ensure that your rights are not compromised. We have experience in a wide variety of child support matters and are here to help. Contact our Accredited Specialist Family Law team on 1300 205 506 for a free 15 minute no obligation phone consultation, or alternatively send us an email at family@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Ath Balaskas

For further information contact

Ath Balaskas

Ath is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Ath on her direct line (03) 8561 3319.

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.