1.4.1 Overview

Context

The child support scheme applies uniformly to most Australian children except those children who live in Western Australia (WA) whose parents were never married.

Act references

Commonwealth of Australia Constitution Act section 51

WA & the child support scheme

The child support scheme is a Commonwealth legislative scheme. The Commonwealth of Australia Constitution Act (The Constitution) gives the Commonwealth Parliament power to make laws about marriage and children of those marriages.

WA is the only Australian state that has not referred to the Commonwealth its power to make laws about children whose parents are not married. This means that the WA Parliament retains its powers to make laws about WA children whose parents have never been married (WA ex-nuptial children), including child support laws.

Since the start of the child support scheme, the WA Parliament has enacted laws adopting the Commonwealth child support legislation, including amendments. However, this has not happened at the same time that the Commonwealth laws started to apply in the rest of Australia. Consequently, the Registrar has had to make different arrangements for child support cases that involve WA ex-nuptial children (i.e. WA ex-nuptial cases).

Note: The Christmas and Cocos (Keeling) Islands are not part of WA, being external territories.

Application of child support legislation to WA ex-nuptial children

1.4.3 sets out when all the amendments to the CSA Act took effect for WA ex-nuptial children.

If a WA ex-nuptial child moves from WA to live in another state or territory the child ceases to be a WA ex-nuptial child if it takes up permanent residency outside WA. The Registrar will apply the usual provisions of the CSA Act in the case from the date the child ceased to reside in WA.

If an ex-nuptial child who previously resided elsewhere moves to WA, the child will be treated as a WA ex-nuptial child. Any legislation in the CSA Act not adopted by the WA Parliament will cease to apply to a child support assessment for the child from the date they started to reside in WA.

If DHS is advised that a child is staying in a state or territory other than WA for several months, DHS would need to determine if the child would be considered a permanent resident of the other state or territory (that is, not returning to live in WA in the foreseeable future) before the child would cease to be considered as resident in WA and as a WA ex-nuptial child. The Registrar will investigate in the same way as investigating a change of care, seeking information from both parents about the child's length of stay, school attendance, and employment or social security pension or benefit status, in order to make a decision about which state or territory the child lives in.

If an ex-nuptial child's parents marry, the child is no longer an ex-nuptial child. Once a child's parents marry, the child is then a child of the marriage. However, the child is not born during the marriage so the Registrar would need to be satisfied about the parentage of the child prior to making an administrative assessment for the child. One of the proofs or presumptions of parentage in section 29(2) (2.1.3) of the CSA Act would have to be met before the Registrar would be satisfied that the application for assessment could be accepted.

Likewise, if a married couple adopt a child, that child is a child of their marriage.

If an unmarried couple adopt a child, that child is an ex-nuptial child. If the couple later marry, the child will be a child of their marriage.

Last reviewed: 21 March 2016