If the parties were not married, an application may be made to the Federal Circuit An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. or Magistrates’ Court for an order that the father of the child pay childbirth expenses (s 67B FL A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.). An application must be made within 12 months after the birth (or later with the court’s permission) (s 67G). 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)).
Spousal Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. 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 The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi. 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 A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. or a child if leave is not granted, and there is a good explanation for the delay. A court A document that sets out what a person wants to happen to their money and other property after they die. grant leave if a party cannot support themselves without a pension, benefit or allowance (s 44(3), (4), (5), (6)). This time limit does not include an application to vary an earlier order.
A party to a A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. or a In fact, rather than in law. Commonly used to refer to two people living together as a married couple but who are not legally married. They are sometimes said to be in a ‘de facto’ marriage or relationship. See also domestic relationship. 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).
In making an order for maintenance, the court takes into account the matters referred to in section 75(2).
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).
Adult child maintenance
There are two ways a person can get financial support for a child over 18.
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 (see ‘Contacts’ at the end of this chapter).
In all other cases, the Federal Circuit Court 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).
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).
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). Other income, earning The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult., 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):
- 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.