4.3.4 FL Act orders affecting a child support assessment
Orders under the FL Act may affect a child support assessment.
FL Act section 66M, section 69VA
Family Law Rules 2004 Division 4.2.4, Rule 4.16
CSA Act section 5, section 8A
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The following is an explanation of how the Registrar will interpret FL Act orders that affect the assessment of child support:
- orders in relation to step-children
- declaration that a person is a parent of a child
- orders about where a child will live & with whom the child will spend time
Orders in relation to step-children
A child support parent's step-child can be considered to be their relevant dependent child (CSA Act section 5) if the child support parent has at least shared care of the step-child and there is an order in force under FL Act section 66M (or Family Court Act 1997 section 124 in Western Australia) in relation to the child support parent and the step-child. The inclusion of a relevant dependent child means that a parent has an amount recognising their support of the child deducted from their adjusted taxable income before calculating child support.
To obtain an order under section 66M a person must be a step-parent to the child, that is, they must:
- not be a parent of the child, and
- be or have been married to a parent of the child, and
- treat, or at any time during the marriage have treated, the child as a member of the family formed with the parent (FL Act section 4).
A child support parent in a de facto relationship is unlikely to be able to obtain an order under section 66M in relation to the children of their current partner. For an order to be made under section 66M there must be proceedings between the child support parent and the child's parent about child maintenance.
In making an order under section 66M the court has to take into account:
- the objects and the principles of the FL Act,
- the length and circumstances of the marriage,
- the relationship between the step-parent and the child,
- the arrangements for maintenance of the child, and
- any special circumstances which would result in injustice or hardship to any person.
If the child support parent is living with their spouse and step-child, there may be no basis for the court to order that the step-parent pay child maintenance for the step-child.
If the child support parent and his or her spouse consent to an order, it can only be made if notice has been provided to those who may be affected by it. The Family Law Rules, Division 4.2.4, Rule 4.16, require that the applicant serve a copy of the application, affidavit and financial statement on the step-child's other parent and any other person likely to be affected by the order sought. This would include the Registrar and any parent or carer of a child that the step-parent has a duty to maintain.
If a child support parent is providing financial support for a step-child and neither of the child's biological parents is able to provide financial support for the child due to death, ill health or caring responsibilities, the parent may have grounds for a change of assessment under the CSA Act. See 2.6.16 for more information.
Declaration that a person is a parent of a child
If parentage is in issue in proceedings under the FL Act, a court can require evidence and make a conclusive declaration about parentage (FL Act section 69VA). A declaration under section 69VA will satisfy the Registrar that a person is a parent of a child if an application is made for a child support assessment.
If the Registrar has refused to accept an application for an assessment because no proof of parentage was available and the court later makes a declaration under FL Act section 69VA, the parent can make a new application for child support using the declaration under section 69VA as proof of parentage. A declaration under FL Act section 69VA does not mean that the Registrar is taken to have accepted the original application for child support.
If the parent has obtained an order under CSA Act section 106A, the Registrar may be taken to have accepted the original application for child support. See 4.3.2 for more information on declarations under CSA Act section 106A.
Orders about where a child will live & with whom the child will spend time
This topic is covered in detail in 2.2.1 which describes how and when these orders are used to determine a percentage of care for a parent or non-parent carer.