4.3.5 Effect of a Court Order for Maintenance of an Eligible Child Where There is no Assessment
The FL Act states that a court cannot make an order for the maintenance of a child if a parent can apply for an assessment of child support for that child.
Court order for maintenance of a child
Section 66E states that a court cannot make an order for the maintenance of a child if an application could properly be made under the CSA Act in relation to the child and their parents.
Occasionally a court makes an order under the FL Act that should not have been made because one or both of the parents was eligible to apply for an administrative assessment. However, the Registrar will not question whether such an order is validly made and will register it, subject only to checking that the order has not expired, or has not ceased to be in force.
If the Registrar is notified of a court order that appears to contravene section 66E, the Registrar will advise both parents that they may apply for an assessment. If the Registrar accepts an application for assessment the court order will cease to have effect from the start date of liability of the assessment (CSA Act section 152). If the order was made by consent and a copy has been signed by both parents the order may also meet the requirements for a child support agreement (see 2.7).
Where the Registrar becomes aware that an order that contravenes section 66E has been registered, the order will not be deregistered. The Registrar will advise both parents that the liability will continue to be payable under the order, unless either parent applies for an administrative assessment or unless one of the parents challenges the order in court and the order is set aside.
If an order has been made and the parties already have an active child support assessment, the Registrar will generally assume that the order is intended as a variation to the existing assessment, and will implement the order accordingly.
Maintenance provisions in a parenting plan or child maintenance agreement
A provision for periodic child maintenance in a parenting plan or child maintenance agreement made under the provisions of the FL Act has no effect and is not enforceable in any way (sections 63G(5), 86(3B) and 87(4D)) if an application for an assessment could have been made under the CSA Act. The Registrar will not register such an agreement or provision as a court order. However, if a copy of the parenting plan or child maintenance agreement is signed by both parents then the provisions relating to child support may meet the requirements for a child support agreement (see 2.7).