Child and spousal maintenance
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If the parents were not married when their child was born, the mother can apply for an order that the child’s father pay child-birth expenses (FL Act s 67B); this application can be made to the FCFCOA. An application must be made within 12 months after the birth (or later with the court’s permission) (FL Act s 67G). Expenses are calculated after rebates have been received from private health insurance and Medicare. The courts cannot take into account any income received by the mother if it is a means-tested allowance or a benefit from Centrelink (FL Act s 67C(3)).
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Spousal maintenance is financial support paid by a person to a former spouse or de facto partner (including same-sex relationships).
Spousal maintenance can be in the form of:
periodic payments; or
a lump sum payment; or
where a party needs immediate assistance, the court can make an order for urgent spousal maintenance (FL Act ss 77, 90SG).
An application for spousal maintenance must be made within 12 months of the divorce order taking effect or within two years after the end of a de facto relationship (For de facto parties the geographical requirements must be met as an added threshold).
A court may extend the time limit if it is satisfied that hardship would be caused to a party or a child if leave is not granted, and there is a good explanation for the delay. A court will grant leave if a party cannot support themselves without a pension, benefit or allowance (FL Act s 44(3)–(6)).
A party may be responsible for maintaining the other party if:
they are reasonably able to do so; and
the other party cannot support themselves adequately (FL Act ss 72, 90SF).
Time Limits
The court takes into account the matters referred to in section 75(2) of the FL Act.
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There are two ways a person can get financial support for a child over 18:
If a child turns 18 while they are in full-time secondary education and there is a child support assessment in place, you can apply to Services Australia (Child Support) to extend the assessment until the last day of that school year. This application must be made before the child turns 18, unless there are exceptional circumstances (Child Support (Assessment) Act 1989 (Cth) (‘Assessment Act’) s 151B).
The FCFCOA or Magistrates’ Court (by consent) can make an order for maintenance, where the maintenance is necessary:
to enable the child to complete their education; or
because of the child’s mental or physical disability.
An order may be made for a 17-year-old child that begins when the child turns 18 (FL Act s 66L).
The order usually stops if the child ceases their education or ceases to have that disability. The person receiving payments must notify the paying parent of the change in circumstances (FL Act s 66VA).
What is relevant in deciding maintenance?
When making a maintenance order, the court will consider the child’s necessary expenses and the contributions that each parent should make (FL Act s 66H)
A parent’s contribution depends on the income, earning capacity and financial resources (FL Act s 66K).
The court will take into account study commitments, illness or disability, personal/work skills and availability of part-time work and income from part-time work of the child. The court cannot take into account any income received by the child if it is a means-tested allowance or benefit from Centrelink (FL Act s 66J).
Child and spousal maintenance
Chapter: 4.2: Parental responsibilities and child support
Contributor: Kamalini Jayasena, Deputy Managing Lawyer, Child Support Legal Service, Victoria Legal Aid, and Simon MacDonald, Professional Support Lawyer, Victoria Legal Aid
Current as of: 1 September 2024
Law Handbook Page: 237
Next Section: Child support
