1. TOPIC 10: CHILD MAINTENANCE
FAMILY LAW
TOPIC 10:
CHILD MAINTENANCE

2. Preliminary Matters
There are two schemes for child maintenance in Australia:
discretionary scheme: FLA
formula scheme: CSAA

3. 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

4. (1) Child Maintenance under the Family Law Act 1975
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

5. (1) Child Maintenance under the Family Law Act 1975
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

6. (a) Parental Duty to Maintain Children
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
Prohibition: s66E
Except overseas orders

7. (c) Who May Apply for an Order?
Parents, child, concerned person: s66F(1)
note ‘care’ children: s66F(2)
Australian jurisdiction: s69E
(d) Court’s Power to Make an Order
may … as it thinks proper: s66G

8. (e) Relevant Considerations
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

9. (f) Children Aged Over 18 Years
Prohibition?: s66L
exceptions
complete education
mental/physical disability
also note s 66VA
(g) General Powers
menu of powers: s66P
like s80

10. (h) Urgent Orders (i) Specification in Orders immediate need: s66Q
identify child maintenance component: s66R

11. (j) Modification of Orders
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)

12. (k) Cessation of Order (l) Parenting Plans turning 18: s66T
death: s66U
adoption etc: s66V
note s 66VA
(l) Parenting Plans
no longer registrable with Family Court
use ‘consent orders’?
register as child support agreement?

13. Child Maintenance Summary
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

14. (2) Child Support (Registration and Collection) Act 1988
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: and 1989

15. (a) Child Support Agency
Stage 1
commenced 1 June 1988
Australian Taxation Office (to 1998)
(b) Registration of Maintenance Liabilities
Child and spousal maintenance orders must be registered: ss
effect of registration: s 30
debt due to Commonwealth
can payee enforce? (yes 2007/s 113A)
opting out/private collection: ss 38A-38B

16. (c) Collection of Maintenance Liabilities
CSA collection - auto withholding: s 43
can ‘opt out’: s 44
employer’s obligations: ss 45-65
(d) Payment and Recovery of Child Support Debts
Penalties: ss 66-69
Offsets : s 71AA
Deductions from payer’s social security: s 72AA
transactions to defeat liabilities: s72C
Registrar sues: s113 (or payee s 113A)
Enforcement: FLR?

17. (e) Departure Prohibition Orders
Pt VA Divs 1-7 (ss 72D-72Y)
(f) International Collection
s 124A - Regulations in relation to overseas-related maintenance obligations?
Child Support (Registration And Collection) (Overseas-Related Maintenance Obligations) Regulations 2000 now repealed and provisions incorporated in CSRCA eg s 30A

18. (3) Child Support and (Assessment) Act 1989
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)
(a) Eligible Children
Born after 1 October 1989
parents separated after 1 October 1989

19. (b) Applications for Support
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)

20. (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

21. (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

22. (c) Administrative Assessment of Child Support
(xi) is the carer's income relevant? - yes, refer ss (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!!

23. Basic Child Support Figures 2007
Income cap
2.5 times EAWE - $109,135
Exempt income
110% unpartnered rate and no relevant dependent child $13, $14,646.06
220% partnered rate of pension $11,120.00
with relevant dependent child - $24, 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
Yearly equivalent EAWE - $43,654
Minimum annual rate of child support
$333

24. George & Mildred Example Q & A Qn 22
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. $8, pa ($ week)
Note changes to figures etc since 1998 when Q & A was written

25. (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!

26. (c) Administrative Assessment of Child Support
(xiiia) the new 2008 formula – 5 steps or so!
Calculate the CS income of each parent
Ascertain the parents’ ‘adjusted incomes’ (“I” = CS income less self support amount)
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)

27. (c) Administrative Assessment of Child Support
(xiiia) the new 2008 formula – 5 steps or so!
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)
‘Cost’ (care/contact) percentages – recognition of assumed expenditure for time children spend with a parent (“C” %s for both)

28. (c) Administrative Assessment of Child Support
(xiiia) the new 2008 formula – 5 steps or so!
Cost percentages
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%

29. (c) Administrative Assessment of Child Support
(xiiia) the new 2008 formula – 5 steps or so!
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)

30. (c) Administrative Assessment of Child Support
(xiiia) the new 2008 formula – example
‘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, (based on the ‘Table of Costs’)
C - Care – Tom 25% (24%) and Meng 75% (76%)

31. (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%]
Tom pays Meng $6, ($11, x 55.86%)
Note: Meng does get to keep all the Family Tax Benefit ‘FTB’ (estimated at around $6, 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)

32. (c) Administrative Assessment of Child Support
(xiiia) the new 2008 formula – example
‘Tom and Meng’ example with the old formula?
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, = $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

33. (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

34. (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

35. (e) Departure from Administrative Assessment
Review by Agency: s 98B
Circumstances: s 98C (like s 117) – ’10 reasons’ see:
Registrar may initiate: ss 98K-98RA
Determinations that may be made: s 98S
NOTE: NEW CHANGES 1 JANUARY 2007
Child Support Legislation Amendment (Reform of Child Support Scheme – New Formula and other Measures) Act 2006 ( )

36. (e) Departure - CSA’s ’10 reasons’
Reasons about the children
1: costs applicant more than 5% of his/her CS income amount to have contact
2: costs the applicant extra to cover the children's special needs
3: costs the applicant extra to care for, educate or train the children in the way they intended
4: CS assessment does not take into account the income, earning capacity etc of the children
5: Children, payee or someone else has (or will) received money, goods or property from you for the benefit of the children
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.

37. (e) Departure - CSA’s ’10 reasons’
Reasons about the parents
7: applicant has necessary expenses in supporting him/herself that affects ability to support the children
8: CS assessment does not take into account the income, earning capacity etc, of one/both parents
Reasons about a duty to maintain
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.

38. (e) Departure from Administrative Assessment (and role of SSAT)
Amendments as from 1 Jan 2007:
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

39. (f) Jurisdiction of Courts: Pt 7
Family Court/Fed Mag Court: ss
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

40. (f) Jurisdiction of Courts: Pt 7
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).

41. (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)

42. (g) Orders for Non-Periodic Child Support: Pt 7 Div 5
See ss

43. (h) Urgent Orders: Pt 7 Div 6
See ss

44. Reviews and Changes
Child support evaluation advisory group (Fogarty Committee)
Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth)
Joint Select Committee on Certain Family Law Issues
House of Representatives Family and Community Affairs Committee 2003 (‘Custody’ Inquiry)

45. 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:

46. Reviews and Changes 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 new formula!!
Now see PPT by Ken McWhinney