Child Maintenance Orders
Parents generally have the obligation to financially maintain their children until the child turns 18. When parents separate, child support is generally assessed and collected through the Department of Human Services‘ Child Support Agency. The obligation to pay child support usually ends when a child turns 18. However, in some situations, a parent may be required to pay child support after a child has reached the age of 18. In such cases, Child Maintenance Orders may be made.
An example of where a Child Maintenace Order may be necessary is where a child who has turned 18 is still completing secondary school. If a child still requires financial support after they have turned 18, a parent can seek a Child Maintenance Order through the Federal Circuit and Family Court of Australia (FCFCA).
What are Child Maintenance Orders?
The Child Support Agency administers the child support scheme and accordingly, the Family Courts have a limited role in determining financial support payable for children (including children who are over 18). There are two situations where a parent can apply to the Federal Circuit and Family Court of Australia after a child has turned 18 for a Child Maintenance Order. These are:
- Where the child needs financial support to complete their education; or
- Where the child has a significant physical or mental disability.
In these situations, the court can make a Child Maintenance Order requiring a parent or stepparent to pay child maintenance for a child who is not covered by the child support legislation. For such an order to be made, the paying parent does not have to have maintained a relationship with the child or expect to maintain a relationship with them in the future.
Who can apply for a child maintenance order?
A parent, a grandparent, the child or any other person involved with the child’s care, welfare or development may apply for a child maintenance order. An example of where this may be appropriate and necessary is where the child has a physical disability and needs ongoing care.
How do I apply for a child maintenance order?
Where the parents are agreed about the amount of maintenance that should be paid, they can apply to the court together for an order to be made by consent.
If there is no agreement, one party may prepare and file an application with the court and organise for it to be served on the other party. The parent responding to the application may file their own documents and evidence with the court.
Each parent will be required to disclose all information relevant to assessing their financial capacity. They will be required to provide details of their income, savings, assets, liabilities and any financial resources. If they have any interests in companies, trusts or other structures, these interests must be disclosed.
If a parent is seeking child maintenance to support a child through their education, evidence of the type of course the child is enrolled in, their current progress and results are relevant.
How much maintenance is required?
The court will determine the amount of child maintenance payable after considering the child’s necessary expenses, each parent’s income-earning capacity and financial position and as well as the child’s ability to seek employment. Necessary expenses include food, accommodation, utilities, transport, study costs and medical costs. Discretionary expenses – holidays and entertainment – are generally excluded.
The court has discretion in relation to the child maintenance orders it makes.
For applications relating to a child’s tertiary education, the court will consider the extent of the hardship that would be caused if the child was required to abandon their studies due to lacking the financial means to support themself. Furthermore, the court will assess whether the child is likely to continue and succeed in their studies.
Parents will not necessarily be asked to pay half of the child’s expenses each. The amount each parent will be required to pay will depend on their capacity to contribute.
Payment can be made through lump-sum payments or by instalments. Generally, if the receiving parent has had difficulty recovering child support in the past, the court is more likely to order a lump sum payment.
How are payments collected?
Once a Child Maintenance Order are made, the receiving parent will need to notify the Child Support Agency of the order. The Child Support Agency can collect the payments on behalf of the receiving parent, or the receiving parent can choose to receive payments directly from the other parent.
When does the obligation end?
The end date of a child maintenance order is often specified in the order. It is therefore important that parties clearly specify the expiration date they are seeking as part of the order.
Often when a Child Maintenance Order is made to support a child completing their tertiary education, the order will expire at the completion of the course.
If you require legal advice or representation in a family law matter or in any other legal matter, please contact Armstrong Legal.