18.104.22.168 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 MAT,
- maladministration by DHS,
- where an individual applies for an exemption,
- where reasonable maintenance is not taken, and
- consequences of not taking reasonable maintenance action.
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 (22.214.171.124) 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.
Individuals who are entitled to receive child support and have a senior secondary school child turning 18, are required to take reasonable action to obtain an extension of their child support assessment (126.96.36.199).
If DHS 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 MAT 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 188.8.131.52.
Act reference: FAAct Schedule 1 clause 10 Effect of certain maintenance rights
Policy reference: FA Guide 184.108.40.206 Who is Entitled to Apply for Maintenance, 220.127.116.11 Maintenance action in progress, 18.104.22.168 When Maintenance Action is Not Applicable, 22.214.171.124 Exemptions from the maintenance action test
Taking reasonable maintenance action
To take reasonable maintenance action the individual generally needs to do one of the following:
- apply for a child support assessment with DHS,
- apply to DHS 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 MAT 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).
Where the paying parent is overseas and in a reciprocating jurisdiction, the individual will generally be able to apply for a child support assessment. However, in some circumstances it may be appropriate for the individual to obtain maintenance from the overseas jurisdiction and this may satisfy the MAT, depending on the circumstances of the case. For more information see topic 126.96.36.199.
Policy reference: FA Guide 188.8.131.52 Maintenance action in progress, 184.108.40.206 Reasonable Maintenance Action Completed - Child Support Collect, 220.127.116.11 Reasonable Maintenance Action Completed - Private Collect, 18.104.22.168 Payer is Overseas, 22.214.171.124 Maintenance action test reviews, 126.96.36.199 Role of the ISO & social worker
CS Guide 1.5.1 Australia's international maintenance arrangements
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 MAT 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 DHS 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 DHS
If DHS 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 DHS (e.g. DHS 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. DHS should consider each case individually and decide whether the individual's inaction was reasonable in the circumstances. If DHS decides that the individual's inaction was reasonable:
- the individual should be assessed as meeting the MAT 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 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 MAT 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.
Reasonable maintenance action not taken
Reasonable action to obtain child support has not been taken for a child if the individual has chosen not to:
- lodge an application for child support,
- take action to establish parentage of the child where it is considered reasonable to do so,
- continue with an application for a child support assessment by withdrawing the application before the assessment is issued, or
- provide information to DHS that is reasonable for them to provide and DHS rejects the application or the application for child support is not completed, or
- obtain an extension to their child support assessment beyond their child's 18th birthday where the child is still in secondary school, or
- the individual has not taken reasonable action to change from being the payer under a child support agreement to the payee following a significant change in care arrangements (188.8.131.52).
Consequences of not taking reasonable maintenance action
Where maintenance action is applicable and DHS is advised by the social worker or by other means that the individual is not taking reasonable action to obtain child support, DHS should contact the individual immediately.
Their FTB Part A for the relevant child or children should be reduced to the base rate of FTB Part A, unless the individual:
- has been granted an exemption or is in the process of applying for one, or
- takes other reasonable action, or subsequently finalises necessary action, to obtain child support.
Example 1: If DHS cannot accept an application for child support because DHS cannot be satisfied about parentage of the child, FTB Part A will be reduced to base rate unless the individual applies for an exemption to the MAT. The individual may also seek legal assistance to establish parentage.
Example 2: The individual may not have sought an extension of the child support assessment for their senior secondary school child beyond the child's 18th birthday. As a result, there is no child support assessment in place for the child from their 18th birthday and only the base rate FTB will be payable. However, if the child support assessment extension is subsequently granted by DHS from the child's 18th birthday, reasonable maintenance action will have been taken and arrears of FTB can be paid if appropriate.