The paramount consideration of the court continues to be the best interests of the child. Parental issues dealt with by the court include shared parental responsibility, violence, status quo, wishes of the child, parentage testing, adoption, taking a child overseas and supervision orders.

Contributors

Noah Eidelson

Barrister

Kamalini Jayasena

Deputy Managing Lawyer, Child Support Legal Service, Victoria Legal Aid

Child and spousal maintenance

Last updated

1 July 2021

Childbirth maintenance

If the parents were not married when their child was born, the mother can apply for an order that the child’s father pay childbirth expenses (s 67B Family Law Act 1975 (Cth) (‘FL Act‘); this application can be made to the Federal Circuit and Family Court of Australia or to the Magistrates’ Court.

An application must be made within 12 months after the birth (or later with the court’s permission) (s 67G FL Act).

Expenses are calculated after rebates have been received from private health insurance and Medicare.

The courts cannot take into account any income received by the mother if it is a means tested allowance or a benefit from Centrelink (s 67C(3) FL Act).

Spousal maintenance

Spousal maintenance is financial support paid by a person to a former husband or wife or de facto partner.

An application for spousal maintenance must be made within 12 months of the divorce order taking effect or within two years after the end of a de facto relationship.

Spousal maintenance can be in the form of periodic payments or a lump sum payment.

For de facto parties, both the time limit 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 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 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.

Second, in all other cases, the Federal Circuit and Family Court of Australia or the 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. 
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