Child Maintenance

A Child Maintenance Order is a type of Parenting Order made under the Family Law Act 1975 that deals with the financial maintenance of a child (s64B(5) of the Family Law Act 1975). An application for Child Maintenance Orders is not only confined to the parents of the child. Section 66F of the Family Law Act 1975 outlines who is able to apply for such Orders. These parties include:

– Either or both of the parents of the child

– The child

– The grandparents of the child

– Any other person concerned with the care, welfare or development of the child

Parents of the child include biological parents, adoptive parents, parents of children artificially conceived and parents of children born under surrogacy arrangements.

Child Maintenance Orders should not be confused with child support under the Child Support (Assessment) Act 1989. A Court is not to make a Child Maintenance Order if an application could be properly made under the Child Support (Assessment) Act 1989. Under section 66E of the Family Law Act 1975, a Court is not to make a Child Maintenance Order if a child support assessment could properly be made by the Department of Human Services (“the DHS”) (formerly known as the Child Support Agency). As the DHS only started regulating child support in 1989 (and therefore child support assessments under this new regime would not apply to children who were born prior to and whose parents separated before 1 October 1989), the practical effect of section 66E of the Act is that the majority of child maintenance matters, especially where the child is under the age of eighteen (18) years, will be dealt with by the DHS.

There are strict legal requirements for applying for a Child Maintenance Order under the Australian Family Law jurisdiction. These requirements are different to applying for a child support assessment from the DHS under the Child Support (Assessment) Act 1989. When applying for a Child Maintenance Order, the Court is required to consider the financial support necessary for the maintenance of the child, and determine the financial contributions that should be made by a party towards this financial support (s66H of the Family Law Act 1975).

In considering the financial support necessary for the maintenance of a child, the Court must take into account the proper needs of the child having regard to the age of the child; the manner in which the child is being, and in which the parents expect the child to be educated or trained; and any special needs of the child. The Court must also take into account the income, earning capacity, property and financial resources of the child (s66J of the Family Law Act 1975).

In determining the contribution that should be made by each party, the Court must take into account the income, earning capacity, property and financial resources of each party, the commitments of each party that are necessary to enable the parties to support themselves or any other child or another person that the person has a duty to maintain, and the direct and indirect costs incurred (s66K of the Family Law Act 1975).

Child Maintenance Orders cease to exist when the child turns 18 years (s66T of the Family Law Act 1975), dies (s66U of the Family Law Act 1975), or is adopted, marries, or enters into a de facto relationship (s66V of the Family Law Act 1975); however, a Court can make a Child Maintenance Order in limited circumstances for children over the age of 18 years.

Child Maintenance Orders can apply to children over the age of 18 years, provided that the Court is satisfied that it is necessary to enable the child to complete his/her education or because of a mental or physical disability of the child and provided that the Order is expressed to continue in force after the child turns 18 years (s66L of the Family Law Act 1975). The Court can make a Child Maintenance Order that is to take effect when or after the child turns 18. In these circumstances the Order will only stop being in force if there is a change of circumstances; that is, if the child dies, ceases that education, or ceases to have that disability (s66VA of the Family Law Act 1975), or is adopted, marries or enters into a de facto relationship (s66V of the Family Law Act 1975).

If you require assistance with a child custody dispute, obtaining parenting orders or child maintenance orders, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with one of our family law solicitors at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.