Child and spousal maintenance

 

Spousal maintenance is regular financial support paid by a spouse to their husband or wife (or ex husband or wife) where that spouse is unable to financially support themselves. Defacto maintenance is also available to eligible parties. Child maintenance support is paid to the parent with the main care of the child.

Childbirth maintenance

If the parties were not married, an application may be made to the Federal Circuit Court or Magistrates’ Court for an order that the father of the child pay childbirth expenses (s 67B Family Law Act 1975 (Cth) (“FLA”)). An application must be made within 12 months after the birth or later with leave of the court (s 67G). Generally, 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 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.

The court may extend the time limit if satisfied that hardship would be caused to a party or a child if leave is not granted, and there is good reason to explain the delay. The court will also 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 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).

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 FLA specifically states the court shall disregard any such entitlement.

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 the Commonwealth Department of Human Services (Child Support or “CS”) to extend the assessment. An extension will continue until the last day of that school year. The application to CS 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 CS on 13 12 72 or go to the CS website at www.humanservices.gov.au.

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 FLA).

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 necessary expenses of the child and the contributions that should be made by each parent (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 and financial resources of the child may be taken into account.

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 any other person that the parent has a duty to maintain.