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Stage 1 applicants/recipients should be referred to a Legal Aid agency or solicitor for help to seek child maintenance (1.1.C.20), if they:
Applicants/recipients should be advised that if they choose to engage the services of a private solicitor they must bear any associated costs. Applicants/recipients are entitled to financial assistance from Legal Aid if they meet the legal aid income and asset test requirements.
FAO staff should obtain information about coordinating referrals with Legal Aid.
If the parties are seeking a court order for maintenance, the applicant/recipient lodges an application for maintenance with the Family Court or a court that has jurisdiction under the Family Law Act.
Example: A local or magistrate's court.
At the preliminary hearing the parties, if agreed, may register an agreement with the court, or the court may make an order by consent. If the case is contested, the court will adjourn the hearing to another date.
Policy reference: FA Guide 3.1.5.30 Taking Reasonable Maintenance Action, 3.1.5.70 Exemptions from the Maintenance Action Test
From 1 January 2007, applicants/recipients taking legal action for child maintenance are required to lodge an application with the court within 13 weeks of being advised by the FAO of the requirement to take action, in order to meet the maintenance action test.
The applicant/recipient must be asked to produce the copy of the form at the 13 week review, if they have not already done so. The case should be reviewed at the date of the hearing.
Policy reference: FA Guide 3.1.5.40 Maintenance Action in Progress
There may be cases where action has been delayed because of legal processes. In these circumstances the applicant/recipient must produce a letter from a legal adviser giving the reasons for the delay. An extension of the time limit should be granted as necessary to the circumstances.
Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews
After the preliminary hearing, the applicant/recipient must advise FAO if:
If a further hearing has been set, the review date is coded as the hearing date and the applicant/recipient should be asked to notify FAO of the outcome of that hearing.
If the applicant/recipient has made an informal agreement (1.1.M.15), child maintenance is assessed from the date of first payment. This must be within 13 weeks to meet the reasonable maintenance action guidelines, unless it is considered that the applicant/recipient is continuing to take action or the delay is beyond their control.
If the applicant/recipient has not made an informal agreement or lodged an application with the court, action should be taken to reduce their rate of FTB to the base rate for the child.
Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews
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Last reviewed: 1 December 2008
