3.1.3 Child Maintenance Orders

Context

The FL Act provides for an Australian court to make a child maintenance order. These orders can be made by consent of the parties or by a judgement of the court. The court can also register agreements about child maintenance.

Act reference

CSA Act Section 152

FL Act Part VII

Family Court Act 1997 (WA)

Description

The FL Act does not allow a court to make a child maintenance order if the Registrar could make a child support assessment for the child (FL Act section 66E). This means that most of the child support matters are dealt with under the CSA Act. The court, however, is able to deal with applications for maintenance for children and from parents/carers who are not eligible for a child support assessment.

Who can apply to a court for a child maintenance order

  • A parent of the child (including an adoptive parent),
  • The child in their own right,
  • A grandparent of the child, and
  • Any other person concerned with the care, welfare or development of the child.

The following people can apply for a child maintenance order for a child who is in the care or guardianship of a person under a child welfare law:

  • the child in their own right,
  • a parent who has daily care of the child (including an adoptive parent),
  • a relative who has daily care of the child, and
  • a child welfare officer of a state or territory.

Who can a court order to pay child maintenance?

  • Either or both of the child's parents (FL Act section 66C)
  • The child's step-parent (for more information see Orders for step-parents to pay maintenance (3.1.4)).

Can a court make an order for a child over 18 years?

A court can make a child maintenance order for a child over 18 years, or extend an order past a child's 18th birthday, if satisfied that it is necessary:

  • to enable the child to complete their education, or
  • because the child has a physical or mental disability (FL Act section 66L).

What if a court makes a child maintenance order where the Registrar could make a child support assessment for the child

See 4.3.5 Effect of a court order for maintenance of an eligible child where there is no assessment.

How can an order be changed?

Any person entitled to apply to a court for a child maintenance order can apply to the court for a variation to an existing order (FL Act section 66S).

When does an order end?

A child maintenance order may contain a provision that says it will end at a specified time, or when a particular event occurs. If so, the order ends at the specified time, or when the event occurs.

A child maintenance order ceases to be in force if the Registrar makes an administrative assessment of child support for the payer, payee and child concerned (CSA Act section 152).

Under the FL Act, a child maintenance order will end:

  • if the child dies (section 66U),
  • if the payer dies, unless the order expressly provides for it to continue after the death of the payer (section 66U),
  • if the payee dies, unless the order expressly provides for it to continue after the death of the payee and nominates a person to whom those payments are to be made (section 66U),
  • if the child is adopted, marries or starts a de facto relationship (section 66V),
  • where the child maintenance order is for a child under 18, when the child turns 18 unless the order says that it will continue after that (sections 66L and 66T),
  • where the child maintenance order is for a child aged over 18, which was made to enable the child to complete his or her education, when the child ceases education (section 66VA), or
  • where the child maintenance order is for a child aged over 18, which was made because the child has a physical or mental disability, if the child ceases to have the disability (section 66VA).

How can I recognise a child maintenance order?

A child maintenance order typically has a clause similar to:

The father is to pay the mother for the maintenance of each of the 3 children of the marriage the sum of $45 per week being a total of $135 per week.

Can a child maintenance order be registered by the Registrar?

A child maintenance order can be registered by the Registrar if it is a registrable maintenance liability. For more information about what is a registrable maintenance liability, refer to 3.2.1.

Last reviewed: 16 May 2016