188.8.131.52 Taking Reasonable Maintenance Action
This topic provides information about:
- who is required to take reasonable maintenance action,
- taking reasonable action for maintenance (1.1.M.10),
- the amount of time the individual has to take action before they fail to meet the maintenance action test,
- the application of the maintenance action test for older children, and
- where an individual applies for an exemption.
Who is required to take reasonable maintenance action
An individual is required to take reasonable maintenance action for a child if they are entitled to apply for maintenance (184.108.40.206) for the child and the Secretary considers that it is reasonable that they should take this action. This requirement also applies to the individual's current partner (1.1.P.30) if the partner is entitled to apply for maintenance for the child. If the individual or their partner does not meet this requirement, only the base rate (1.1.B.15) of FTB Part A is payable in respect of the child and the child is not included for RA purposes.
If Centrelink has information that the individual is the payer in a child support assessment/agreement, there generally will be no requirement for the individual to take action to obtain maintenance for that child as they have already met the maintenance action test requirement.
For information about situations where the Secretary may consider that it is not reasonable for an individual to take maintenance action even though they may be expected to do so, refer to 220.127.116.11.
Act reference: FAAct Schedule 1 clause 10 Effect of certain maintenance rights
Taking reasonable maintenance action
To take reasonable maintenance action the individual needs to do one of the following:
- apply for a child support assessment with Child Support,
- apply to Child Support for the acceptance of a child support agreement, or
- take reasonable action to change from being the payer under a child support agreement to being the child support payee for a child whom the individual has more than 65% care.
If an individual has one of the above actions in progress, they meet the maintenance action test during the period of time their action is still in progress. Further action to complete maintenance action may be required (refer to policy reference below).
Policy reference: FA Guide 18.104.22.168 Maintenance Action in Progress, 22.214.171.124 Reasonable Maintenance Action Completed, 126.96.36.199 Payer is Overseas, 188.8.131.52 Maintenance Action Test Reviews, 184.108.40.206 Role of the ISO & Social Worker
Period of grace to take maintenance action
Instalment (1.1.I.100) and past period (1.1.P.60) individuals have 13 weeks to take reasonable action to obtain maintenance for the child. After 13 weeks, if the maintenance action test is not met, the individual will be paid base rate of FTB Part A. The 13 week period relates to when the individual first became entitled to apply for maintenance. The 13 week period would therefore apply from the later of:
- the DOB of the FTB child, or
- the date of separation from the child's other parent, or
- the date the child came into the individual's care, or
- the date the individual's percentage of care increases to 35% or more, or
- such later date that the individual first becomes entitled to apply for maintenance.
Example: Daniel is in receipt of FTB for his 2 children. Daniel and the mother of his children, Tegan, separate. Following their separation Daniel has shared care and remains entitled to FTB for his 2 children. Daniel has 13 weeks from the date he separated from Tegan to take reasonable maintenance action. During the 13 week period Daniel is in receipt of his full entitlement of FTB Part A. The 13 weeks elapse and Daniel has not taken reasonable maintenance action, as a result his FTB Part A rate is reduced to the base amount.
Where an individual becomes eligible for FTB after they became entitled to apply for maintenance, a reduced or no grace period may apply if it is considered reasonable for the individual to take maintenance action prior to the date they became entitled to FTB. Similarly, where an individual lodges a past period claim for FTB after they became entitled to apply for maintenance, some or all of their grace period may have already elapsed. Eligibility for the grace period in these situations and the length of the grace period would depend on the circumstances of the case.
Example: Jane enters into a relationship and gives birth to a child of that relationship. Jane is not entitled to FTB due to a high combined income. Four years later Jane separates from her partner and moves interstate with her child, having been offered employment. The child's father moves overseas following their separation. The country he is now residing in has a reciprocal Child Support arrangement with Australia, which allows Jane to seek maintenance from him; however Jane decides not to pursue this. Jane also decides not to claim FTB immediately after her separation, as her anticipated income will still be too high and she believes she will not be eligible. However, Jane's new employment contract is subsequently withdrawn and she then claims FTB 10 weeks after her separation. As Jane has been able to apply for maintenance through Child Support and has not since her separation, she only has 3 weeks remaining to take reasonable action to obtain maintenance, without her rate being reduced to the base rate of FTB Part A.
Additionally, if certain circumstances exist which are outside an individual's control making it unreasonable for the individual to take maintenance action within the 13 week grace period; the period may be extended. The circumstances must be assessed on a case by case basis and the grace period can only be extended up to the date which it would no longer be considered unreasonable for an individual to take maintenance action.
Maladministration by Centrelink or Child Support
If Centrelink subsequently becomes aware that an individual was entitled to maintenance from an earlier date but had not applied at the time and an exemption (e.g. fear of violence) was not appropriate, an FTB Part A debt may arise due to the individual not taking reasonable maintenance action. However, in situations where an individual did not take maintenance action (even though they were entitled to do so) because of maladministration by Centrelink or Child Support (e.g. Centrelink/Child Support provided incorrect information which caused the individual to not apply for maintenance for an earlier period) the individual's failure to take action could be considered 'reasonable' in the circumstances. Centrelink should consider each case individually and decide whether the individual's inaction was reasonable in the circumstances. If Centrelink decides that the individual's inaction was reasonable:
- the individual should be assessed as meeting the maintenance action test for the earlier period, and
- from the time the maladministration is corrected, there would be a grace period of at least 14 days and no more than 28 days, to take reasonable maintenance action before FTB Part A for the child is reduced to base child rate.
Application for exemption
If an individual receiving FTB by instalments applies for an exemption from the requirement to take reasonable action, they are taken to satisfy the maintenance action test until a decision is made.
If the request for an exemption is refused and the 13 week grace period has ended, the individual has 14 days from the date they are advised of the decision to take reasonable maintenance action.
If the individual fails to attend an interview relating to the request for exemption, their rate of FTB Part A must be reduced to the base rate (1.1.B.10) from the end of the 13 week grace period.
Where an individual who claims FTB for a past period requests an exemption from the requirement to take maintenance action, an exemption may be granted and backdated depending on the circumstances in each case.