3.1.5.70 Exemptions from the Maintenance Action Test

General exemptions

Individuals may be granted an exemption from the maintenance (1.1.M.10) action test in the following circumstances:

• if they fear that if they take action for child support (1.1.C.20) the payer (1.1.P.72) will react violently towards them or their family (1.1.F.15),
• where seeking child support may have a harmful or disruptive effect on them or the payer,
• if the identity of the other parent of the child or children is unknown,
• if they have had legal advice that paternity could not be proven through a court,
• if they have been unsuccessful in proving paternity, such as failed attempts to locate the father,
• where the child was born as a result of a surrogacy arrangement which is not recognised under the Family Law Act 1975,
• if there are cultural considerations that adversely impact on the individual's capacity to take reasonable maintenance action, and
• where there are other exceptional circumstances.

 

These are explained further in this topic. The topic also includes reasons an exemption from maintenance action should not be granted.

 

Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews, 3.1.5.100 Role of the ISO & Social Worker

 

Violence or fear of violence

It may be inappropriate for an individual to take maintenance action where:

• there have been documented incidents of violence towards the individual and/or their immediate family by the payer, or
• violence (1.1.F.15) by the payer may occur if the individual takes maintenance action.

 

Act reference: Family Law Act 1975 section 4AB Definition of family violence

Policy reference: FA Guide 3.1.5.100 Role of the ISO & Social Worker

 

Harmful or disruptive effect

An individual may be exempt where the social worker thinks it would be very emotionally traumatic for the individual to seek child support. This includes cases of rape or incest.

 

Policy reference: FA Guide 3.1.5.100 Role of the ISO & Social Worker

 

Trauma associated with proving paternity

A social worker may consider that it would be emotionally traumatic for an individual to take action to establish proof of parentage in cases where the parent has not:

• put their name on the birth certificate, or
• acknowledged that they are the parent of the child.

 

Policy reference: FA Guide 3.1.5.100 Role of the ISO & Social Worker

 

The other parent is unknown

If the individual states that the other parent of the child is unknown, a full copy of the birth certificate or adoption papers and FTB claim should be sighted before the case is referred to the social worker. If the individual knows who the other parent is and the grounds for presumption of parentage are not met, the individual must take legal action to establish parentage.

 

If an individual claims not to know who the father of the child is, it may be because they are afraid of violence or have other good grounds for exemption. The individual must be referred to a social worker. If the social worker is satisfied that the individual does not know the identity of the father, an exemption may be given.

 

Policy reference: FA Guide 3.1.6.10 Proof of Parentage

 

Unsuccessfully tried to prove paternity

An individual is exempt where:

• a court has said the person is not the parent,
• Legal Aid will not fund the paternity case, or
• the parent's whereabouts remain unknown and the payee has taken reasonable steps to locate the payer.

 

If the individual does not provide proof that one of the above circumstances applies and the individual is reluctant to take legal action, they should then be referred to a social worker. If a social worker considers that it would be very emotionally traumatic for the individual, to take court action and the situation is likely to be of a temporary nature, then a temporary exemption may be given.

 

Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews

 

Surrogacy cases

An exemption should be granted where a child is born as a result of a surrogacy arrangement which is not recognised under the Family Law Act.

 

Section 60HB of the Family Law Act states that if a court has made an order under a prescribed law of a state or territory to the effect that:

• a child is the child of one or more persons, or
• each of one or more persons is a parent of a child

then, for the purposes of that Act, the child is the child of each of those persons.

 

For the purposes of the maintenance action test (MAT), the parent(s) of the child are those people listed in the court order as the parent(s) of the child. In circumstances where these parents separate they are not exempt from the MAT on the basis that there was a surrogacy arrangement involved in their case. However, other exemptions may apply.

 

Where there is no court order as described above, the surrogacy arrangement is not recognised under the Family Law Act. In these cases, the individual is exempt from the MAT because it would be unreasonable for them to seek maintenance from the birth mother who had the child on behalf of the individual and their partner (if any).

 

If an individual had a partner at the time they first claimed FTB for a child born under a surrogacy arrangement and the individual's relationship with the partner ends, the individual is not required to seek maintenance from the partner. This is because, under child support legislation, maintenance can only be sought from a legal parent of the child and neither the individual nor their former partner is the child's legal parent.

 

Note: All cases involving a surrogacy arrangement should be copied to FaHCSIA for the purposes of monitoring emerging policy issues.

 

Cultural considerations

Particular care should be given to an individual's cultural background. There are also wide differences in attitudes to marriage, and the roles of men and women among different ethnic groups, and these factors should be taken into account as they affect individual cases. An assessment of cultural considerations may indicate that maintenance action would not be successful and might cause hardship to the individual and/or their community.

 

If the social worker considers that pursuing child support would be unsuccessful or cause hardship to the individual and/or their community, an exemption may be granted.

 

Policy reference: FA Guide 3.1.5.100 Role of the ISO & Social Worker

 

Cultural considerations - Aboriginal & Torres Strait Islander Australians

In some situations individuals may refuse or be reluctant to take action to receive child support because of their cultural beliefs. Aboriginal or Torres Strait Islander Australians should generally be referred to an ISO, rather than a social worker, for a recommendation about exemption. If it is deemed inappropriate for an ISO to be involved in a particular case, then it may be appropriate to involve the social worker. In such cases a social worker should consult with an ISO to seek advice on cultural beliefs and other considerations in order to make an informed decision.

 

Situations where it may be culturally inappropriate for the individual to take child support action include:

• where the child is born as a result of a culturally prohibited relationship,
• situations involving polygamous marriages,
• where extended family responsibilities require the family to share in the care of the child and maintenance action would cause undue disruption to these arrangements, and
• where action to obtain child support might cause hardship to the individual and/or the community.

Example: It would be inappropriate for an individual to take maintenance action when they are living in a small remote community and requiring them to take such action would result in them being ostracised by the community. The recommendation to the delegate should outline the full impact and ramifications of taking action for the individual and the community.

 

Exemptions for Aboriginal or Torres Strait Islander Australians on the basis of fear of violence or the identity of the other parent is unknown should still be referred to the social worker as the social worker still has primary responsibility for these cases. However, it is recognised that the ISO can provide valuable assistance to both the individual and the social worker in obtaining the necessary information to help decide these cases. The assessment of these cases should be undertaken jointly by the ISO and the social worker. In these cases it is appropriate for a joint interview involving both the ISO and the social worker.

 

Policy reference: FA Guide 3.1.5.100 Role of the ISO & Social Worker

 

Other exceptional circumstances

There may be other situations where the social worker considers that it is inappropriate for the individual to take maintenance action. If the social worker considers that the individual should be exempt due to exceptional circumstances, policy advice should be sought from the local policy unit. These circumstances could relate to a range of different situations experienced by individuals, including threats from the payer, or in certain circumstances, a lack of cooperation from the payer that prevents the individual from taking maintenance action.

 

Example: It may be appropriate to grant an exemption in circumstances where:

• the payer has threatened violence against other people connected with the individual including friends and relatives not of their immediate family.
• the payer will not agree to an extension of a child support agreement past the child's 18th birthday, where the child is still in full-time secondary study.

 

Policy reference: FA Guide 3.1.5.40 Maintenance Action in Progress, 3.1.5.60 When Maintenance Action is Not Applicable

 

Backdating of exemption

In certain circumstances, backdating of an exemption in relation to an instalment or a past period claim may be undertaken by a social worker. For this to occur, the social worker will undertake a professional assessment that the circumstances warranting the granting of an exemption at the time of claim also existed for the duration of the time covered by the past period claim.

Example: Fiona lodges an instalment claim on 10 October, and a past period claim for the period 1 August to 9 October. Fiona applies for an exemption from maintenance action. During the assessment with the social worker she reports she separated due to domestic violence and produces a copy of an apprehended violence order (AVO). She indicates she fears seeking maintenance due to further violence. The social worker determines that the current circumstances in regards to violence existed at 1 August and the exemption is backdated to that date.

 

Review of exemption

The customer service officer determines the types of review required at the end of the review period. The main purpose of the review is to assess whether the individual's circumstances have changed in such a way that an exemption is no longer appropriate. The review does not necessarily have to take the form of a referral to a social worker or ISO. However, if the decision maker is unsure what form the review should take, they should discuss the matter with a social worker, ISO and/or the child support unit.

Example: The review may consist of a telephone call to the individual to confirm that their circumstances have not changed.

 

Reasons exemption from maintenance action should not be granted

Exemptions should not be made for the following reasons:

• the individual never lived with the payer, and/or
• the individual does not want any involvement with the payer.

Explanation: If either of these reasons is given, a social worker referral should be made. In many cases one or both of these reasons may be given when the underlying concern is a fear of violence or other acceptable justification for not taking action.

 

Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews, 3.1.5.100 Role of the ISO & Social Worker

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Last reviewed: 11 February 2013