The Law Handbook 2024

Chapter 4.2: Parental responsibilities and child support 269 and the geographical requirements must be met as an added threshold. A court may extend the time limit if it is satisfied that hardship would be caused to a party or a child if leave is not granted, and there is a good explanation for the delay. A court will grant leave if a party cannot support themselves without a pension, benefit or allowance (s 44(3), (4), (5), (6) FL Act). This time limit does not include an application to vary an earlier order. A party to a marriage or a de facto relationship (including same-sex relationships) may be responsible for maintaining the other party if: • they are reasonably able to do so; and • the other party cannot support themselves adequately (ss 72, 90SF FL Act). In making an order for maintenance, the court takes into account the matters referred to in section 75(2) of the FL Act. Eligibility for a means-tested pension is not relevant in maintenance proceedings: section 75(3) of the FL Act specifically states the court shall disregard any such entitlement. Where a party needs immediate assistance, the court can make an order for urgent spousal maintenance (ss 77, 90SG FL Act). Adult child maintenance There are two ways a person can get financial support for a child over 18. First, if a child turns 18 while they are in full-time secondary education and there is a child support assessment in place, you can apply to Services Australia (Child Support) to extend the assessment. An extension will continue until the last day of that school year. The application to Services Australia must be made before the child turns 18, unless there are exceptional circumstances (s 151B Child Support (Assessment) Act 1989 (Cth) (‘ Assessment Act ’)). To apply, contact Services Australia (see ‘Contacts’ at the end of this chapter). Second, and in all other cases, the FCFCOA or Magistrates’ Court can make an order for maintenance, where the maintenance is necessary: • to enable the child to complete their education; or • because of the child’s mental or physical disability. An order may be made for a 17-year-old child that begins when the child turns 18 (s 66L FL Act). The order usually stops if the child ceases their education or ceases to have that disability. The person receiving payments must notify the paying parent of the change in circumstances (s 66VA FL Act). What is relevant in deciding maintenance? When making a maintenance order, the court will consider the child’s necessary expenses and the contributions that each parent should make (s 66H FL Act). The court cannot take into account any income received by the child if it is a means-tested allowance or benefit from Centrelink (s 66J FL Act). Other income, earning capacity, property, and financial resources of the child may be taken into account. To determine the child’s proper needs, the court must consider any of the child’s special needs. What will each parent have to contribute? A parent’s contribution depends on two main factors (s 66K FL Act): • income, earning capacity, property and financial resources of the parties; and • the amount a parent needs to support themselves or anyone else the parent has a duty to maintain. Child support Child Support Scheme The Child Support Scheme is mainly covered by the Child Support (Registration and Collection) Act 1988 (Cth) (‘ Collection Act ’) and the Assessment Act. There are also court rules and regulations. Parents have the primary duty to maintain their children. This applies even if the parents have never lived together. In cases where the parents were not married or did not live together, Services Australia can make a child support assessment if there is evidence of who the child’s parents are. The presumptions of paternity are set out in section 29(2) of the Assessment Act. If there is disagreement about parentage and the parents are not willing to have parentage testing, then it may be necessary to go to court (see ‘Application to court’, below).