When parents separate, child support is generally assessed and collected through the Child Support Scheme, which is part of the Commonwealth Department of Social Services.
A parent is generally obliged to financially maintain their child until the child turns 18, when the obligation to pay child support usually ends. Child maintenance orders may be required when a child requires financial support after they have turned 18 (e.g. when a child who has turned 18 is still completing secondary school). In that situation, a parent can apply to the Federal Circuit and Family Court of Australia for a child maintenance order.
What are child maintenance orders?
Child Support administers the Child Support Scheme: the family courts’ role in determining financial support payable for children (including adult children) is limited. A parent of a child over 18 can apply to the court for a child maintenance order where the child:
- has a significant physical or mental disability and needs ongoing care; and
- needs financial support to complete their education.
In these situations, a child over 18 is not covered by the child support legislation and the family courts can make a child maintenance order requiring a parent or stepparent to pay child maintenance. An order may be made even if the paying parent has no past or expected future relationship with the child.
Who can apply for a child maintenance order?
A parent, grandparent, the child, or anyone involved with the child’s care, welfare or development can apply for a child maintenance order.
How do I apply for a child maintenance order?
Where parents reach agreement as to the amount of child maintenance to be paid, they can apply to the court together for an order to be made by consent.
If the parents cannot agree, one parent may prepare and file an application with the court and arrange for it to be served on the other parent. The other parent may then file with the court their own documents and evidence in response to the application.
Each parent must disclose all information relevant to assessing their financial capacity. They must give details of their income, savings, assets and liabilities and disclose any financial resources such as interests in companies, trusts or other structures.
If their application seeks child maintenance to support a child’s education, relevant evidence includes the type of course in which the child is enrolled, their current progress and results.
How much child maintenance is required?
The court has discretion in relation to child maintenance orders.
To determine the amount of child maintenance payable, the court considers each parent’s income-earning capacity and financial position and the child’s ability to seek employment and their necessary expenses. Necessary expenses include the cost of food, accommodation, transport, utilities, medical care and study. Discretionary expenses (such as holidays and entertainment) are generally excluded.
For applications relating to a child’s tertiary education, the court considers:
- whether the child is likely to continue and succeed in their studies; and
- the extent of hardship the child would suffer if they had to abandon their studies due to their financial means being insufficient to support them.
The amount each parent is required to pay depends on their capacity to contribute. Payment can be made by instalments or lump-sum payments. The court is more likely to order a lump sum payment if the receiving parent has had difficulty obtaining child support in the past.
How are child maintenance payments collected?
Once child maintenance orders have been made, the receiving parent must notify Child Support of the order. The receiving parent can choose to receive payments directly from the other parent, or Child Support can collect them on the receiving parent’s behalf.
When does the obligation to pay child maintenance end?
Usually a child maintenance order made to support a child completing their tertiary education expires at the completion of the course.
Parties seeking a child maintenance order should specify the expiration date within the order they seek as the end date is often specified in the court order.
What now?
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