CHILD SUPPORT (MAINTENANCE)

Maintaining Child Support in Australia

A Party in Australia may apply to vary an overseas maintenance order, agreement or liability registered in Australia. ‘a child support maintenance order made by a judicial authority of a reciprocating jurisdiction’

Matters to be taken into account in considering financial support necessary for the maintenance of a child.

The relevant sections of the Family Law Act

In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

1. the matters mentioned in section 66B; and
2. the proper needs of the child (this is expanded on in subsection (2)); and
3. the income, earning capacity, property, and financial resources of the child (this is expanded on in subsection (3)).

In taking into account the proper needs of the child the court must have regard to:

(i) the age of the child; and

(ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

(iii) any special needs of the child; and

(iv) The Court may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

In taking into account the income, earning capacity, property, and financial resources of the child, the court must:

1. have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of the child that does not produce, but is capable of producing income; and
2. disregard:

(i) the income, earning capacity, property, and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

(ii) any entitlement of the child or any other person to an income-tested pension, allowance, or benefit.

Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

Section 66K of the Act stipulates:

Matters to be taken into account in determining the contribution that should be made by a party 

1. In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

a) the matters mentioned in sections 66B, 66C, and 66D; and

b) the income, earning capacity, property, and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

c) the commitments of the party, or each of those parties, that are necessary to enable the party to support:

(i) themself; or

(ii) any other child or another person that the person has a duty to maintain; and

d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

2. In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce but are capable of producing income.

3. In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

4. In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:

a) any entitlement of the child, or the person with whom the child lives, to an income-tested pension, allowance or benefit; and

b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

5. In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

(a) by way of lump sum payment; or

(b) by way of transfer or settlement of property; or

(c) in any other way.

6. Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

Section 66S

Section 66S of the Act provides the following:

(2) In any other case, the court may, by order:

(a) discharge the first order if there is just cause for so doing; or

(b) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

(c) if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or

(d) subject to subsection (3), vary the order:

(i) so as to increase or decrease any amount ordered to be paid by the order; or

(ii) in any other way.

(3) The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:

(a) that, since the order was made or last varied:

(i) the circumstances of the child have changed so as to justify the variation; or

(ii) the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or

(iii) the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or

(iv) in the case of an order that operates in favor of, or is binding on, a legal personal representative–the circumstances of the estate are such as to justify the variation; or

(b) that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or

(c) if the order was made by consent–that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or

(d) those material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.

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