2.1.2 Eligible Child

Context

The Registrar can only make a child support assessment for a child who is an eligible child (CSA Act section 18) and a child for whom an application can be made (CSA Act section 24).

Act references

CSA Act section 18, section 19, section 20, section 21, section 22, section 24

CSA Regs regulation 4

Explanation

A parent, or non-parent carer, may apply for a child support assessment for a child only if (CSA Act section 24(1)):

Eligible child

An eligible child must:

  • be born on or after 1 October 1989 (the commencing day of the CSA Act) (CSA Act section 19), or
  • have parents who lived together and who separated on or after 1 October 1989 (CSA Act section 20), or
  • have a brother or sister who was born to the same parents on or after 1 October 1989 (CSA Act section 21), and
  • not be cared for under a child welfare law of Western Australia or South Australia (CSA Act section 22, CSA Regs regulation 4).

A child welfare law of Western Australia does not include a child welfare law that applies as a law of Cocos (Keeling) Island or Christmas Island. A person who is caring for a child in Cocos (Keeling) Island or Christmas Island under a child welfare law may have care of an 'eligible child', but the non-parent carer may apply for child support only if the non-parent carer is a relative of the child (see 'child welfare law' in 2.1.1).

Note: In some situations, an order may be made pursuant to a child welfare law of Western Australia or South Australia, but that order is not active. That is, the child is actually being cared for by a parent and the parent is not receiving any financial support pursuant to the order. In those circumstances the Registrar may consider that the child is not under the care of a person under a child welfare law for child support purposes, and may regard the child as an eligible child despite the existence of the order.

Member of a couple

A person cannot apply for a child support assessment for a child who is a member of a couple (CSA Act section 24(1)(a)(iii)).

The term 'member of a couple' is defined as (CSA Act section 5):

  • a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis,
  • a person who is living with another person as their partner on a genuine domestic basis although not legally married, or
  • a person whose relationship with another person (whether of the same sex or opposite sex) is registered under a prescribed state or territory law and who is not living separately and apart from the other person on a permanent or indefinite basis.

The factors to be considered (SS Guide 2.2.5.10) in establishing whether people are living together as partners on a genuine domestic basis are:

  • financial aspects of the relationship,
  • nature of the household,
  • social aspects of the relationship,
  • presence or absence of a sexual relationship, and
  • nature of the commitment.

In addition, a person cannot live with another person as their partner on a genuine domestic basis if they are aged under 16 years. This is because a person is living with another person as their partner on a genuine domestic basis if the relationship has the characteristics of marriage (FO v HAF [2006] QCA 555; Re Kennison and Secretary, Department of Social Security (1985) 8 ALD 560). To have the characteristics of marriage, the persons must be at least 16 years old, which refers to a person's capacity to marry pursuant to the Marriage Act 1961 (Cth).

Residence

The child must meet the residence requirements for a child support assessment, which are:

  • the child is in Australia when the person makes the application (CSA Act section 24(1)(b)(i)), and/or
  • the child is an Australian citizen, or ordinarily resident in Australia on that day (CSA Act section 24(1)(b)(ii)).

If the parent or non-parent carer, who would be eligible to receive child support, is a resident of a reciprocating jurisdiction, the residence requirements for a child do not apply (CSA Act section 24(2)). See 1.6.3 for further information.

Last reviewed: 20 September 2016