LexisNexis Practical Guidance®

Since the commencement of the Child Support (Assessment) Act 1989 (Cth) all administrative assessments for child support must be made by the Child Support Agency (CSA) before appeal may be made to either the Family Court or the Federal Circuit Court. Section 66E of Family Law Act 1975 (Cth) specifically limits the jurisdiction of the court to make, vary or revive a child maintenance order when an application could be made to the CSA, whether or not, such an application has been made. The court may not make an order if the application to the CSA for a departure order is more than 18 months old.

The wording used by the two pieces of legislation is similar in that they emphasise the duty of parents to maintain their children as a priority, only ensuring they have enough to support themselves. However, the Family Law Act 1975 (Cth) uses the expression “child maintenance” rather than “child support”, giving a wider interpretation of its powers and often in relation to parenting and property proceedings already commenced in the court. Where a court makes final child maintenance orders, the Child Support Registrar is required to substitute those orders for any existing orders and the child assessment order will reflect the court’s orders as made. A court order becomes final after 28 days to enable the appeal period to expire. An order of the full bench of the Family Court becomes final after 30 days.

Under the Child Support (Assessment) Act 1989 (Cth) (and the related Child Support (Registration and Collection) Act 1988 (Cth)) parties have a number of appeal steps available to them before resorting to the family courts. Initially a party can object to the Registrar in relation to an assessment. If not satisfied with that decision, they can then apply to the Administrative Appeals Tribunal for a first or second review of the Registrar’s decision in respect of allocation of care percentage or an extension of time decision.

If not satisfied with that outcome, a party (either the liable parent or the carer parent) may apply to the Family Court provided they are able to demonstrate that “special circumstances” apply to the case. See s 116(1), Child Support (Assessment) Act 1989 (Cth).

Factors considered by both the court and the CSA when making an order for departure from an existing administrative assessment (a “departure” order) focus on:

• • the grounds set out under s 117(2)(a) Child Support (Assessment) Act 1989 (Cth);
• • special circumstances arise as a result of a parent’s reduction in financial capacity to maintain a resident child (s 117(2)(aa), Child Support (Assessment) Act 1989 (Cth));
• • special circumstances arising as a result of the high costs associated with spending time with the child (s 117(2)(b), Child Support (Assessment) Act 1989 (Cth)); and
• • special circumstances arising as a result of a parent’s income earning capacity or resources: s 117(2)(b), Child Support (Assessment) Act 1989 (Cth).

the Family Court and the Federal Circuit Court retain their discretion in relation to:

• • applications for urgent child maintenance, pursuant to s 139 of the Child Support (Assessment) 1989 Act; and
• • orders in respect of “adult” children (ie over 18 years old), pursuant to s 66L of the Family Law Act 1975.

An urgent child maintenance application can only be made if an application for administrative assessment has been made but has not yet been determined: s 139 Child Support (Assessment) Act 1989.

An order made by the court for urgent child maintenance must be expressed to come to an end on the issue of the child support assessment and at best it has only short term effect: s 139, Child Support (Assessment) Act 1989.

The court must be of the opinion that the child is in need of urgent financial assistance and may order a periodic payment or other payment as it thinks necessary. Such an order is only for a limited duration and ceases once the Registrar has made a final decision.

Practice Tip: Such urgent child maintenance applications are rare as applications for administrative assessments tend to be processed much quicker than an application for maintenance in the family law courts.

See Urgent child maintenance.

As a general rule, child support assessments cease to have effect when the child turns 18. The Family Court (of Australia and Family Court of Western Australia) and the Federal Circuit Court have jurisdiction to make orders for children over the age of 18 years:

• •to enable the child to complete his or her education (see Adult child maintenance — Education); or
• •because of a mental or physical disability of the child (see Adult child maintenance — Disability).

The court can make child maintenance orders that begin when the child is under 18 years but continue after the child reaches 18 years. Alternatively, the maintenance order can begin after the child has obtained 18 years: ss 66L(1), (2) of the Family Law Act 1975.

The making of such an order is not mandatory, but at the discretion of the judicial officer and guided by Pt VII Div 7 Subdiv D of the Family Law Act 1975. Only the court, and not the Child Support Agency, can make child maintenance orders for children over the age of 18 years.

The provisions of Pt VII Div 7 Subdiv D of the Family Law Act 1975 (applying for and making child maintenance orders) which govern child maintenance orders in respect of children under the age of 18 years, will still be relevant to an exercise of this power and forming an assessment as to what orders should be made: Smith v St James; Smith v Wickstein (1996) 21 Fam LR 118. Much of the case law suggests that a maintenance order will only be granted where it is “necessary”.

See Adult child maintenance.

Pursuant to s 74 of the Family Law Act 1975, the court has the power to order one spouse to provide financial support to the other spouse if:

• • the applicant is not able to meet his or her own reasonable needs; and
• • the respondent has the capacity to pay or to contribute to those needs.

See Who is entitled to spousal maintenance?

When determining an application for spousal maintenance, the court will have regard to all the issues set out in s 75(2) of the Act. These considerations include:

• • the age and state of health of the parties;
• • the income, property and financial resources of each of the parties;
• • whether either party has the care of any child under 18 years of age;
• • the commitments of each party; and
• • the cost of a "reasonable" standard of living (which is subjective and relative to the standard of living enjoyed by the parties during their relationship).

The court is specifically required to disregard an entitlement either party may have to a pension or benefit paid by the Commonwealth.

There are really three issues in a spousal maintenance application:

• • What are the reasonable needs of the applicant? Note these “needs” can be generously interpreted and are subjective (ie considered in the context of the standard of living enjoyed during the relationship). See Need for maintenance.
• • What is the capacity of the applicant to meet his/her own needs? This is a test of earning capacity, not earnings.
• • What is the capacity of the respondent to contribute to the needs of the applicant once their own reasonable expenses are met?

Spousal maintenance orders are not generally made for the long term, that is, they are made on an interim basis or "until further order". Generally, spousal maintenance orders are made to allow the party in need a period of time to enable that party to re-house themselves, complete a course of study or re-enter the work-force with a view to becoming self-sufficient. It is common, for example, for an spousal maintenance order to be made until the time the parties’ youngest child attends full time school or the party receiving maintenance remarries or commences living in a marriage like relationship.

If a long term spousal maintenance application is sought, the court will have regard to the entitlement of that party to property settlement. Often, the result of a final determination of property issues will obviate the need for spousal maintenance. If a final order for spousal maintenance is made, it will, more often than not, be made for a specific period of time (ie two years) (s 75(2)(f) or until the occurrence of a specific event, ie youngest child turning 6 or attending full-time school or the party completing a course of study, commencing paid employment or cohabitating with someone in a marriage like relationship) and not forever.

An order for spousal maintenance also ceases:

• • upon the death of one of the parties; or
• • upon the re-marriage of the person in receipt of spousal maintenance;

An order for spousal maintenance can take a variety of forms including:

• • periodic payment such as monthly payments;
• • a lump sum payment; or
• • a transfer of property.

Spousal maintenance is not something that is gender specific (ie it is not something which husband must pay to their wives and it can also be paid in same-sex and de facto relationships. It can be paid by either party to the other when the elements required to establish the legal obligation for spousal maintenance are met.

Applications for spousal maintenance must be lodged within 12 months of a divorce being finalised. Only in special circumstances will the court grant leave out of this limitation period to apply for spousal maintenance.

The principles in relation to spousal maintenance also apply to de facto couples who otherwise come within the jurisdiction of the Act. Note that in Western Australia applications for de facto spousal maintenance are made to the Family Court of Western Australia under the Family Court Act 1997 (WA).

An applicant relying on a de facto relationship must make an application within two years of the relationship breakdown in which to apply for de facto spousal maintenance.