1.4.1 Overview

Context

Prior to the Child Support (Commonwealth Powers) Act 2019 (WA) (CS(CP)Act) receiving Royal Assent on 15 May 2019, the child support scheme applied uniformly to most Australian children except those children who lived in WA whose parents were never married (WA ex-nuptial children).

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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 was the only Australian state that did not refer its power to the Commonwealth to make laws about children whose parents are not married, when the child support scheme was first established. The WA Parliament retained its powers to make laws about WA ex-nuptial children, including child support laws, until the introduction of the CS(CP)Act.

Prior to referring their powers to the Commonwealth, the WA Parliament had to enact laws adopting the Commonwealth child support legislation, including amendments. However, this did not happen at the same time that the Commonwealth laws started to apply in the rest of Australia. Consequently, the Registrar has had to in the past 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 from 15 May 2019

From Royal Assent on 15 May 2019, the CS(CP)Act adopted all Commonwealth child support laws not previously adopted, referred legislative powers in respect of the maintenance of ex-nuptial children to the Commonwealth, and repealed the Child Support (Adoption of Laws) Act 1990 (WA), as there is no further need for the WA Parliament to incrementally adopt Commonwealth amendments to child support legislation. Legislative powers over unmarried persons and their children in family law proceedings were not referred.

Application of child support legislation to WA ex-nuptial children prior to 15 May 2019

This Guide at 1.4.2 and 1.4.3 sets out when amendments to the CSRC Act and the CSA Act historically took effect for WA ex-nuptial children.

If a WA ex-nuptial child moved from WA to live in another state or territory the child ceased to be a WA ex-nuptial child ifthey took up permanent residency outside WA. The Registrar applied the usual provisions of the CSA Act and the CSRC Act in the case from the date the child ceased to reside in WA.

If an ex-nuptial child who previously resided elsewhere moved to WA, the child was treated as a WA ex-nuptial child. Any legislation in the CSA Act and the CSRC Act not adopted by the WA Parliament ceased to apply for the child from the date they started to reside in WA.

If DHS were advised that a child was staying in a state or territory other than WA for several months, DHS needed 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 a resident in WA and as a WA ex-nuptial child. The Registrar investigated in the same way as investigating a change of care, by 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 lived in.

If an ex-nuptial child's parents had subsequently married, the child was no longer an ex-nuptial child. Once a child's parents married, the child was then a child of the marriage and the usual provisions of the CSA Act and the CSRC Act applied.

Last reviewed: 20 September 2019