child maintenance orders and agreements
A child maintenance order may be issued for children above 18 years who want to continue their secondary education, have physical or mental disabilities, or upon application by a child or step-parent.
Child maintenance may also be the subject of agreements. Child maintenance orders have been somewhat superseded by child support assessments under the Child Support Scheme. The application for child maintenance orders are made for children who were born before October 1, 1989 but children born before this date have long reached the age of 18 years. However, there are certain circumstances wherein a child maintenance order can be issued.
Child maintenance orders are issued under the authority of the Family Law Act 1975. Under the said law, a child maintenance application can be filed for children who were born before October 1, 1989 and whose parents have separated. Child support is provided for children born after October 1, 1989 under the Child Support (Registration and Collection) Act which is administered by the Department of Human Services.
The court, however, pursuant to Section 66E of the Family Law Act can order for child maintenance in some cases. Adult child maintenance is provided for children who are already 18 years old and above but need continuing financial support to enable them to finish secondary education.
Adult child maintenance can be applied for children who are above 18 and have mental or physical disabilities such that they cannot financially support themselves. Only the court can order for adult child maintenance.
Child maintenance orders may also be issued if the applicant is the child himself who is applying for maintenance in his own right. The regular procedure after October 1, 1989 is that parents will be assessed for child support. The assessment requires taking in many factors including the income of the parents, the number of children being supported and the cost of supporting one’s self.
Despite this, the Family Law Act still provides every child with the right of asking for maintenance. A step-parent can also apply for a child maintenance order. If the payer of child support is outside of Australia, the parent or the carer of the child who is in Australia can apply to the court for the issuance of a child maintenance order.
In deciding the rate of maintenance for a child, the Court can refer to the child support formula which is used for the child support assessment by the Department of Human Services. So, the court will be taking into consideration the costs of raising children and the income of the parents.
Furthermore, Section 66D(2) of the Family Law Act provides that when making taking into account the needs of a child the court may have regard to any relevant findings of published research in relation to the maintenance of children.
Child maintenance may actually be the subject of agreement between the parents. Parents who separate can enter into a private agreement with each other concerning the support and care of their child. This agreement can then be brought to court so that consent orders can be made. The consent orders are binding and enforceable between the parties unlike if they just executed a private agreement.
However, if the private agreement is in the form of a Binding Financial Agreement (BFA) then the terms therein are legally binding upon the parties even if they have not asked for consent orders. The BFA may be executed before, during or after the marriage or de facto relationship. In order to be binding, the BFA must be signed by both parties after having had legal consultation with their respective counsels. Child maintenance can also be included in parenting plans.
It is when the parents do not reach an agreement that an application for child maintenance order can be filed. A child maintenance order remains effective until the child reaches 18 years old. The exception to the latter rule is in the case of adult child maintenance for a child who is 18 years old and wants to continue his secondary education and for a child who has mental or physical disabilities.
A child maintenance order may be varied upon application. The applicant must show proof that circumstances have changed between the parties which would warrant a variation or departure from the original order.
The court ordered child maintenance can be paid directly to the payee or to the child. The child maintenance payment ordered by the court may also be collected by the Child Support Agency.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.