3.1.5.60 When Maintenance Action is Not Applicable

Maintenance action not applicable

There are certain categories of children and individuals to which maintenance action does not apply. Maintenance action is not applicable in relation to the child if:

  • the child:
    • is in the individual's care for less than 35% of the time (less than 128 nights a year), or
    • is not from a previous relationship, or
    • was conceived via an artificial conception procedure (ACP) and the mother did not have a partner at the time of conception (or her partner did not consent to the procedure) depending on the circumstances of the case (see Artificial conception procedure (ACP) & parentage below), or
    • is 18 years of age and certain circumstances apply (see Child aged 18 years below).
  • the individual:
    • is blind and receives an Age, DSP, a service pension or an income support supplement under the Veterans' Entitlement Act 1986.
  • a payer is deceased.

These are discussed further in this topic.

Child is in care for less than 35% of time

If a parent has care of a child for less than 35% of the time (less than 128 nights a year), they are not required to take maintenance action as they are not entitled to claim maintenance for the child. They may however be required to pay child support.

Child is not from a previous relationship

Maintenance action is not required if the child is not the product of either the person's or their current partner's (1.1.P.30) previous relationship.

Example: Grandparents caring for a grandchild do not have to take maintenance action.

Artificial conception procedure (ACP) & parentage

The Family Law Act and state and territory legislation define who the parents of a child are where the child was conceived via an ACP. Generally:

  • the woman who gave birth to the child is the mother of the child,
  • her partner (male or female) who consented to the ACP is the other parent of the child, and
  • the donor of any genetic material (whether ovum or sperm) is not a parent of the child (unless the sperm donor is the partner of the woman).

There is generally a presumption that if the woman who gave birth to the child did not have a partner at the time of the ACP (or her partner did not consent to the ACP), there is no other parent of the child.

The following table provides guidance on how the maintenance action test (MAT) should be applied in cases of ACP, depending on whether the ACP was through a medical clinic or professional or self-administered.

ACP through a medical clinic or medical professional Individuals who have conceived a child via ACP through a medical clinic or medical professional should have documentation from the clinic or medical professional that the ACP took place. Such documentation can be accepted as verification of the ACP.

If at the time the child was conceived, the mother did not have a partner (or her partner did not consent to the ACP), generally, there is no other parent of the child. The decision maker should also confirm that there is no other parent named on the child's birth certificate. If this is the case, the mother would not be entitled to claim maintenance for the child and, therefore she would not be required to take reasonable maintenance action to receive more than the base rate of FTB Part A for the child.

If at the time the child was conceived, the mother had a partner and her partner consented to the ACP, generally, her partner is the other parent of the child. If the mother and the other parent subsequently separate, they would probably be entitled to claim maintenance from each other. Therefore, to receive more than the base rate of FTB Part A for the child, it is likely the parent/s would need to take reasonable maintenance action.

Self administered ACP If an individual claims that a child was conceived via self-administered ACP, it is unlikely that the individual has any third party verification of the procedure. If the mother did not have a partner at the time the child was conceived (or her partner did not consent), it is unclear whether there is another parent of the child and, if there is, who the other parent is. These cases should be referred to Child Support for a decision on whether the individual is able to apply for an administrative assessment under Child Support legislation. Before referring the case to Child Support, Centrelink should consider whether any MAT exemptions apply (3.1.5.70).

If Child Support determines that the individual is entitled to claim maintenance in relation to the child, the individual must take reasonable maintenance action to receive more than the base rate of FTB Part A for the child unless a MAT exemption applies (3.1.5.70). If Child Support determines that the individual is not entitled to claim maintenance in relation to the child, the individual is not required to take reasonable maintenance action to receive more than the base rate for the child.

Child aged 18 years

There are 3 circumstances where maintenance action does not apply to a child aged 18 years. These are where:

  • the child is a senior secondary school child, but the child has completed the last day of school in the year in which the child turned 18, or
  • the child is a senior secondary school child but the child is exempt from the FTB activity test, or
  • the above 2 points do not apply, but there was never an entitlement to maintenance in relation to the child before the child turned 18.

Maintenance action is not applicable in the first 2 situations described above as maintenance is not available through Child Support where the child has turned 18 and is not in full-time secondary education. In the third situation above, maintenance action is not applicable as maintenance cannot be claimed through Child Support after a child turns 18.

Note: Maintenance action does apply where a senior secondary school child has turned 18, they are still in school and the school year in which the child turned 18 has not ended and an individual was entitled to maintenance in relation to the child before the child's 18th birthday. This is because, in these circumstances, maintenance can be extended by application to Child Support before the child's 18th birthday, until the end of the school year.

Act reference: FAAct section 22B Meaning of senior secondary school child

Child Support (Assessment) Act section 5 'full-time secondary education', section 24 Children in relation to whom applications may be made, section 151B Application for assessment/agreement to continue beyond child's 18th birthday

Policy reference: FA Guide 3.1.5.25 Who is Entitled to Apply for Maintenance, 3.1.5.30 Taking Reasonable Maintenance Action 3.1.5.70 Exemptions from the Maintenance Action Test

Blind recipients receiving an Age, a DSP, a service pension or income support supplement under the Veterans' Entitlement Act 1986

Individuals who are permanently blind and receiving Age, a DSP, a service pension or income support supplement under the Veterans' Entitlement Act 1986 are not required to take maintenance action (1.1.M.10). This also applies if the individual's partner is permanently blind and receiving one of these payments

If an individual (or their partner) is permanently blind and receives Age, a DSP, a service pension or income support supplement under the Veterans' Entitlement Act 1986 and is receiving maintenance, it is not assessed under the maintenance income test for FTB Part A.

Act reference: FAAct Schedule 1 clause 19B Application of maintenance income test to certain pension and benefit recipients and their partners

Payer is deceased - maintenance action not applicable

Maintenance action is not applicable when the other parent of the child who would otherwise be the payer is deceased.

Last reviewed: 20 March 2015