FAMILY LAW
TOPIC 6:
CHILD MAINTENANCE
1
Preliminary Matters
There are two schemes for child
maintenance in Australia:
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discretionary scheme: FLA
formula scheme: CSAA
2
Preliminary Matters
This topic will involve a consideration
of:
1. Child Maintenance under the Family
Law Act 1975
2. Child Support (Registration and
Collection) Act 1988
3. Child Support (Assessment) Act
1989
3
(1) Child Maintenance under the Family
Law Act 1975
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Part VII Division 7
s 66A
s 66B: objects and principles
s 66C: parents have primary duty
s 66D: step-parent liability
s 66E: child support prohibition
s 66F: who can apply
s 66G: Court’s specific power
4
(1) Child Maintenance under the Family
Law Act 1975
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Part VII Division 7
ss 66H-K: criteria/considerations
s 66L: child over 18
s 66M: step-parent liability criteria
s 66P: Court’s general powers
s 66Q: urgent orders
s 66R: specification requirement
s 66S: modifications
ss 66T-W: cessation
5
(a) Parental Duty to Maintain Children
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Parental liability: s66C
three rules: s66C(2)(a)(b)(c)
step-parent liability: s66D
step-parent criteria: s66M
(b) Relationship with the Child Support
(Assessment) Act 1989
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Prohibition: s66E
Except overseas orders
6
(c) Who May Apply for an Order?
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Parents, child, concerned person:
s66F(1)
note ‘care’ children: s66F(2)
Australian jurisdiction: s69E
(d) Court’s Power to Make an Order
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may … as it thinks proper: s66G
7
(e) Relevant Considerations
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approach: s66H
need factors: s66J
 Specific factors
 Lovering Basket of Goods
Approach (1983)
 Lee Expenditure Survey
Approach (1989)
means factors: s66K
 resources less commitments
 special circumstances
 disregard social security
8
(f) Children Aged Over 18 Years

Prohibition?: s66L

exceptions
 complete education
 mental/physical disability
also note s 66VA
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(g) General Powers
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menu of powers: s66P
like s80
9
(h) Urgent Orders
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immediate need: s66Q
(i) Specification in Orders
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identify child maintenance
component: s66R
10
(j) Modification of Orders
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Order can be discharged,
suspended, revived or varied:
s66S(2)
modification grounds
 change in circumstances:
s66S(3)(a)
 CPI: s66S(3)(b)
 consent order not proper:
s66S(3)(c)
 material fact(s) withheld:
s66S(3)(d)
11
(k) Cessation of Order
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(l)
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turning 18: s66T
death: s66U
adoption etc: s66V
note s 66VA
Parenting Plans
no longer registrable with Family
Court
use ‘consent orders’?
register as child support
agreement?
12
Child Maintenance Summary
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Court assessed child maintenance is
limited to non-Child Support Scheme
children
Assessment is based upon
 financial needs of child
 financial circumstances of parents
 published research for child’s needs
Assuming ‘need’ established, look to
payer’s ‘means’ – ie financial
circumstances less commitments
13
(2) Child Support (Registration
and Collection) Act 1988
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Background to Scheme
 court proceedings
 quantum $ low
 ‘dead beat dads/moms’
 tax change in the 1980s
 social security blowout
No child in poverty by 1990 pledge
Scheme introduced in two stages:
1988 and 1989
14
(a) Child Support Agency
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Stage 1
commenced 1 June 1988
Australian Taxation Office (to 1998)
(b) Registration of Maintenance Liabilities
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Child and spousal maintenance orders
must be registered: ss 17 -19
effect of registration: s 30
 debt due to Commonwealth
 can payee enforce? (yes 2007/s 113A)
opting out/private collection: ss 38A-38B
15
(c) Collection of Maintenance Liabilities
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CSA collection - auto withholding: s 43
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can ‘opt out’: s 44
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employer’s obligations: ss 45-65
(d) Payment and Recovery of Child Support
Debts
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Penalties: ss 66-69
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Offsets : s 71AA
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Deductions from payer’s social security:
s 72AA
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transactions to defeat liabilities: s72C
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Registrar sues: s113 (or payee s 113A)
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Enforcement: FLR?
16
(e) Departure Prohibition Orders
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(f)
Pt VA Divs 1-7 (ss 72D-72Y)
International Collection

s 124A - Regulations in relation to overseasrelated maintenance obligations?

Child Support (Registration And Collection)
(Overseas-Related Maintenance Obligations)
Regulations 2000 now repealed and provisions
incorporated in CSRCA eg s 30A
17
(3) Child Support and
(Assessment) Act 1989
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Stage 2 - commenced 1 October 1989
Major changes 1 July 1999 and 1 July 2008
Assessment by formula
Only concerned with ‘means’ (need is
assumed)
http://www.csa.gov.au/guide/index.htm
(a) Eligible Children
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Born after 1 October 1989
parents separated after 1 October 1989
18
(b) Applications for Support
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Eligible carer may apply: s25
Liable parent application: s 25A
Child cannot apply
Child welfare children? s 26A
See s 24 (a)- relevant child must be
 eligible
 under 18 years
 not ‘a member of a couple’
Jurisdictional connection to Australia:
s24(b)
19
(c) Administrative Assessment of Child
Support
(i) what is the procedure? apply to Registrar: s 27
(ii) what is a child support period? - refer s 7A(1)
(iii) when does a child support period start? - refer s
7A(2)
(iv) when does a child support period end? - refer s
7A(3)
(v) examples? - refer s 7A(4)-7A(8)
(vi) what is the old basic statutory formula and how
does it work? - refer s 36
20
(c) Administrative Assessment of Child
Support
(vii)what is the child support percentage? refer s 37
(viii) what is the adjusted income amount? refer ss 5, 36, 38, 38A
(ix) is there a cap on the child support income
amount?
- yes refer s 42 (use 2.5 times EAWE)
(x) is there an exempted income amount for
the payer? – yes; refer s 39
21
(c) Administrative Assessment of Child
Support
(xi) is the carer's income relevant? - yes, refer
ss 42-46 (if exceeds EAWE)
(xii) basic formula analysis: CS payable equals:
CS % multiplied by the following equation:
[(payer taxable income + supplementary income)
LESS
(payer exempted income + dependent child
allowances)]
But note the non-carer income cap and the possible
relevance of the carer ‘s income!!
22
Basic Child Support Figures 2007
Income cap
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2.5 times EAWE - $109,135
Exempt income
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110% unpartnered rate and no relevant dependent
child $13,314.60 - $14,646.06
220% partnered rate of pension $11,120.00
with relevant dependent child - $24,464.00 PLUS
< 13, at end - $2,489
13-15, at end - $3,504
16 or over, at end – NK (in 2006 was $5,307)
Disregarded income
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Yearly equivalent EAWE - $43,654
Minimum annual rate of child support
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$333
23
George & Mildred Example Q & A Qn 22
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Assume George’s income: $39,790
Assume 110% x single pension: $9,000
Assume two children and no other
dependants
approach
 apply facts to formula
 apply formula to figures
27% x ($39,790-$9,000=$30,790)
ie. $8,313.30 pa ($159.32 week)
Note changes to figures etc since 1998
when Q & A was written
24
(c) Administrative Assessment of Child
Support
(xiii) are variations to the old basic formula
possible? - yes
refer ss 48-54B
(xiiia) the new 2008 formula – 5 steps or so!
25
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – 5 steps or so!
1. Calculate the CS income of each parent
2. Ascertain the parents’ ‘adjusted incomes’
(“I” = CS income less self support amount)
3. Calculate the “T” cost of the child/ren using
the combined “I” (adjusted incomes)
adjusted of the two parents and applying
the relevant amounts in Costs of Children
Table (note 2 age bands)
26
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – 5 steps or so!
4. Apportion the costs of the child in
accordance with the parents’ respective
capacities to pay—that is, in proportion to
their respective shares of combined
adjusted income (ie “I” as %s for both)
5. ‘Cost’ (care/contact) percentages –
recognition of assumed expenditure for
time children spend with a parent (“C” %s
for both)
27
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – 5 steps or so!
Cost percentages
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10 to less than 14% - Nil
14% to less than 35% - 24%
35% to less than 48% - 25% plus 2% for each
percentage point over 35%
48% to 52% - 50%
more than 52% to 65% - 51% plus 2% for each
percentage point over 53%
more than 65% to 86% - 76%
more than 86% to 100% - 100%
28
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – 5 steps or so!
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Child Support = [Father’s IT% - C%] plus
[Mothers’s IT% - C%]
I: Combined parents’ Child Support Income
Amount (adjusted income minus self support
amount)
T: Costs of children based on variables (based
upon I above plus the number and ages of
children)
C: Percentage costs of care already met by virtue
of care arrangements (% of time child/ren spend/s
with each parent)
29
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – example
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‘Tom and Meng’ example
3 kids all under 12 with care arrangements
(Tom 25% Meng 75%)
$CS income – Tom: $51,500 Meng: $27,000
Relevant Self Support figure: $18,252 (1/3 of
the ‘MTAWE’)
I - $41,996 (Tom’s CSIA is $33,248 + Meng’s
CSIA is $8,748) (ie when combined, Tom’s
CSIA% is 79.16% and Meng’s % is 20.83%)
T - $11,192.68 (based on the ‘Table of Costs’)
C - Care – Tom 25% (24%) and Meng 75%
(76%)
30
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – example

‘‘Tom and Meng’ example

$ [Tom 55.86% (79.16%-24%)] + [Meng 0%
(20.86%-76%]
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Tom pays Meng $6,252.23 ($11,192.68 x
55.86%)
Note: Meng does get to keep all the Family Tax
Benefit ‘FTB’ (estimated at around $6,184.36
whereas it was previously split between Tom
and Meng because he has more than 10%
care).
cf. CC Calculator (as at 3 May 2008 and 30 June
2008)

Child Support Estimate: Annually: $6174
($515 per month or weekly $118)
31
(c) Administrative Assessment of Child
Support
(xiiia) the new 2008 formula – example
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‘Tom and Meng’ example with the old formula?
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3 kids all under 12
Care arrangements – Tom 25% Meng 75%
CS $Y – Tom: $51,500 Meng: $27,000
Exempted $ for Tom: $15,378.22
CS% (3/32% multiplied by the following equation:
($51,500.00) LESS [($15,378.22) + ($0)] - ie 32% of
$36,121.78 = $11,558.97
Liable parents $Y cap and carer’s $Y level are lower and
hence irrelevant
Conclusion: Meng will receive less under new formula
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32
(c) Administrative Assessment of Child
Support
(xiv) can a payer seek an adjustment to
his/her child support income? - yes
see ss 60-64A
(xv)when does a statutory liability cease? refer ss 12, 31
33
(d) Child Support Agreement
(i) agreements are encouraged - s 4(3)(a) & Pt
6 Div 2
(ii) what is included in an agreement? - s 84(1)
(iii) formalities? - s 85 (written and signed
agreement)
(iv) procedure for acceptance by registrar?
- Div 3
(v) decisions on agreement applications? - Div 4
(vi) variation of agreements? - refer ss 97-98,
136
34
(e) Departure from Administrative
Assessment
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Review by Agency: s 98B
Circumstances: s 98C (like s 117) – ’10
reasons’ see:
http://www.csa.gov.au/payer/coa.aspx
Registrar may initiate: ss 98K-98RA
Determinations that may be made: s 98S
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NOTE: NEW CHANGES 1 JANUARY 2007


Child Support Legislation Amendment
(Reform of Child Support Scheme – New
Formula and other Measures) Act 2006
(6.12.06)
35
(e) Departure - CSA’s ’10 reasons’
Reasons about the children
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1: costs applicant more than 5% of his/her CS
income amount to have contact
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2: costs the applicant extra to cover the children's
special needs
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3: costs the applicant extra to care for, educate or
train the children in the way they intended
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4: CS assessment does not take into account the
income, earning capacity etc of the children
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5: Children, payee or someone else has (or will)
received money, goods or property from you for
the benefit of the children
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6 (payee only): If other parent has sole care of
children, and it costs them more than 5 per cent of
his/her CS income amount for child care, for
children younger than 12 years of age at the start
of the CS period.
36
(e) Departure - CSA’s ’10 reasons’
Reasons about the parents
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7: applicant has necessary expenses in supporting
him/herself that affects ability to support the
children
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8: CS assessment does not take into account the
income, earning capacity etc, of one/both parents
Reasons about a duty to maintain
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9: applicant has a legal duty to maintain another
person or other children not included in CS
assessment, and it costs them:



more than 5 per cent of his/her CS income to have
contact with that other person or those children
extra to cover the special needs of that person or those
children
extra to cover the necessary expenses of that person
or those children.
Reasons about additional income for resident children

10: applicant has earned additional income for the
benefit of resident children.
37
(e) Departure from Administrative
Assessment (and role of SSAT)
Amendments as from 1 Jan 2007:
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CSRC Act 1988 see Pts VII, VIIA, VIII, XIIIA
CSAA 1989 see Pt 7
Social Security (Admin’n) Act 1999 (Cth) Pt 2.
Majority of child support objection decisions
(including a ‘change of assessment’ objection
decision) must now be reviewed by the SSAT
(Social Security Appeals Tribunal) rather than
the court
CSA/parents only able to appeal a decision of
the SSAT to a court on a ‘question of law’ and
not on a question of fact. Court will still retain
some jurisdiction in various matters
38
(f) Jurisdiction of Courts: Pt 7
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Family Court/Fed Mag Court: ss 99-105
Declaration person entitled to admin
assessment (eg eligible carer etc): s 106
Declaration as to liable parent: s 106A
Declaration person NOT entitled to admin
assessment (eg not a liable parent): s
107/107A
Also retains following jurisdiction: parentage
declarations, applications for a ‘change of
assessment’ for a period more than 18 months
prior to the date of application, stay orders,
enforcement matters sought by the payee,
setting aside a child support agreement
39
(f) Jurisdiction of Courts: Pt 7

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Power to order the recovery of amounts
wrongly paid under the CSAA: s 143(1)(3A): Where s 107 declaration made court may
determine the amount that is to be recovered: s
143(3A). In doing so, the court must have regard
to various matters in s 143(3B).
Issue of deceit? Magill v Magill [2006] HCA 51
(Gleeson CJ, Gummow, Kirby, Hayne, Heydon
and Crennan JJ) – ‘majority’ (Gummow, Kirby
and Crennan JJ) held that marital
representations as to children’s paternity could
not give rise to an action in deceit. However,
they accepted that a party could seek an order
for the repayment of any sums wrongly paid by
way of child support (see above) or child
maintenance (FLA s 66X).
40
(f) Jurisdiction of Courts: Pt 7


change of assessment/departure
orders: s 116
(also see s 118)
considerations: s 117(1)
 special circumstances
 just and equitable
 otherwise proper
see ss 117(2)-117(9)
41
(g) Orders for Non-Periodic Child Support: Pt
7 Div 5

See ss 121-131
42
(h) Urgent Orders: Pt 7 Div 6

See ss 139-140
43
Reviews and Changes



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Child support evaluation advisory group
1989-1992 (Fogarty Committee)
Joint Select Committee on Certain
Aspects of the Operation and
Interpretation of the Family Law Act
1975 (Cth) 1991-1992
Joint Select Committee on Certain Family
Law Issues 1993-1994
House of Representatives Family and
Community Affairs Committee 2003
(‘Custody’ Inquiry)
44
Reviews and Changes



Ministerial Taskforce on Child Support
2005 (Parkinson Committee)
Federal Gov’t announcement 28 Feb 06
Child Support Legislation Amendment (Reform
of Child Support Scheme – initial measures) Act
2006 (15 June 2006)

Child Support Legislation Amendment (Reform
of Child Support Scheme – New Formula and
other Measures Act 2006 (6 December 2006)

Fact Sheets:
http://www.csa.gov.au/fact/index.aspx
45
Reviews and Changes
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1 June 1988 CSA registration/collection
1 Oct 1989 CSA assessment
1 July 1999 formula changes (eg
increased self-support; lowered eligible
carer’s $Y threshhold)
1 July 2006 formula changes (eg reduced
liable parent’s $Y ‘cap’)
1 Jan 2007 changes (eg SSAT reviews)
1 July 2008 - new formula!!
Now see PPT by Ken McWhinney
46