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Generally, a person may apply for maintenance (child support) for a child if they care for the child and are not living with a parent of the child. They may be the other parent of the child or another person (e.g. grandmother) as long as the child is in their care. The applicable law is the Child Support (Assessment) Act 1989 or the Family Law Act 1975.
Persons who may apply for maintenance for a child fall under:
Exception: There are a small group of individuals who do not fall under the CSS because they had existing arrangements when the scheme was introduced. See 3.1.5.60 When Maintenance Action is Not Applicable for more information about this group.
A person who falls under Stage 1 of the CSS can apply to a court under the Family Law Act and should seek legal advice on whether an entitlement exists.
Under CSS guidelines, a person who falls under Stage 2 of the CSS is entitled to claim or apply to the CSA for maintenance for a child if the:
From 1 July 2008, a parent must have at least 35% care of their child to take action for child support for the child under Stage 2 of the CSS.
Explanation: This is because the Child Support Assessment Act specifies that from 1 July 2008, a person must be caring for a child for at least 35% (128 nights) in the first 12 months of a child support period to be an eligible carer.
Individuals who are eligible for more than the base rate of FTB Part A, must take reasonable action for maintenance. If reasonable action for maintenance is not taken, the individual will generally fail the maintenance action test, unless the individual is granted an exemption from the maintenance action test (3.1.5.70). If an individual fails the maintenance action test at any time, their FTB Part A rate will be reduced to base rate until action is taken, or they are granted an exemption.
Note: Prior to 1 July 2008, individuals who were eligible for more than the base rate of FTB Part A and who had between 10% and 30% care of a child were not required to take reasonable action for maintenance for their FTB child.
Generally, a person cannot apply for maintenance for a child where a child welfare law is in place in respect of the child.
Exception: There are some exceptions. Refer to the Child Support (Assessment) Act 1989.
Under Stage 2, a person is entitled to apply for maintenance for children up to the age of 18. If they are already receiving maintenance for the child, who is in full-time secondary education, they can apply to receive it past the child's 18th birthday until the last day of the secondary year in which the child turns 18.
Under certain circumstances, a person can apply to court for maintenance in respect of a child over the age of 18 years.
Act reference: Child Support (Assessment) Act 1989 section 151B Application for assessment/agreement to continue beyond child's 18th birthday
Under certain circumstances, a person can apply for maintenance in respect of a child born as a result of an ACP. For more information about whether the maintenance action test applies for a child born through an ACP, see 3.1.5.60 When Maintenance Action is Not Applicable.
When a person adopts a child they become a parent for all legal purposes. Therefore, where another person adopts the child, taking maintenance action against the biological parent for that child is not applicable. Maintenance action may however, be taken against the adoptive parent if at some future date the person caring for the child stops living with the adoptive parent as a member of a couple.
Act reference: FAAct Schedule 1 clause 10 Effect of maintenance rights
Child Support (Assessment) Act 1989
Policy reference: FA Guide 3.1.5.20 Determining which Stage of the CSS Applies, 3.1.5.80 Payer is Overseas
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Last reviewed: 20 September 2011
