The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.1.5.40 Maintenance action in progress

Summary

Generally, if the individual has maintenance action in progress, they are taken to have satisfied the MAT (1.1.M.10) until their case is reviewed.

This topic provides information about:

  • what types of action in progress satisfy the MAT
  • extension of child support assessments for children in secondary school
  • child support action when the payer (1.1.P.72) is imprisoned, and
  • legal advice or action.

Action in progress

The following table shows what types of action for child support satisfy the MAT, and when the individual's situation should be reviewed.

The individual has action in progress if they …

review in …
have applied for a child support assessment 28 days.
have applied for a child support assessment, and the other parent is not a resident of Australia 90 days.
are taking legal action to prove parentage or obtain child support 90 days; or where there is evidence of a court date (outside the 90 days), after that date to determine if circumstances have changed.
have applied to register an overseas maintenance liability where the liable parent is a resident of a reciprocating jurisdiction and the amount payable under the overseas maintenance liability is for an amount that would be more or less for the same amount payable under a child support assessment 90 days.
are seeking an exemption from the MAT 60 days.
have been advised that their application for exemption has been denied 14 days.
have applied to the Child Support Registrar for acceptance of a child support agreement 28 days.

Where an FTB child is the subject of a child support agreement, and the care arrangements of the child change significantly, there are certain child support actions a parent can take to change from being the payer under the agreement to instead become the payee. This would occur where the care changes are such that the payer under the new agreement has more than 65% care of the child and subsequently becomes the payee.

If an individual has an FTB child they are required to pay child support for under a limited agreement (3.1.6.45), they have action in progress if:

  • the limited child support agreement was made 3 or more years earlier, and the individual has given the Child Support Registrar notice of the termination of the limited agreement for the child, or
  • the limited child support agreement was made less than 3 years earlier, and
    • the individual requested a new provisional notional assessment (3.1.7.14)
    • has received notification of the new notional amount, and
    • the individual has given the Child Support Registrar written notice of the termination of the limited agreement within 60 days.

If an individual has an FTB child they are required to pay child support for under a binding child support agreement (3.1.6.45), they have action in progress if the individual seeks the agreement of the other party to give effect to a binding agreement:

  • that terminates the previous agreement, then commences an administrative assessment for the child, or
  • which terminates the previous agreement, then commences a new child support agreement that makes the new carer of the child the child support payee.

Where the other party does not consent to terminating the agreement, the individual may elect to apply to a court to terminate the binding agreement. However, court action will not be required to satisfy the MAT.

Policy reference: FA Guide 3.1.5.50 Reasonable maintenance action completed - Child Support collect, 3.1.5.55 Reasonable maintenance action completed - private collect, 3.1.5.70 Exemptions from the maintenance action test, 3.1.5.80 Payer is overseas, 3.1.5.90 Maintenance action test reviews, 3.1.6.10 Proof of parentage, 3.1.6.40 Child support assessments, 3.1.6.45 Child support agreements (post July 2008), 3.1.7.14 Notional assessments

Extensions of child support assessments for children in secondary school

Parents who are entitled to receive child support and who have a senior secondary school child (1.1.S.27) turning 18 are required to take reasonable action to obtain an extension of their child support assessment for that child until the last day of the school year in which the child turns 18, in order to satisfy the MAT. Reasonable action to obtain an extension must be taken before the child's 18th birthday unless there are exceptional circumstances warranting a later application for extension. In most circumstances, this is a continuation of maintenance action, as parents are not taking maintenance action for the first time. As a result, there is no period of grace to take maintenance action (3.1.5.30) in these circumstances and parents are expected to have taken reasonable action to extend the child support case by the child's 18th birthday.

The requirement to take reasonable action to obtain an extension also applies to parents who have a child support agreement registered by the Child Support Registrar. Unless an exemption has been granted, parents whose agreement initiated a child support assessment need to take reasonable action to obtain the agreement of the other parent to extend the child support agreement.

Since both the payer and payee's signatures are required to extend the child support case in this situation, if one party attempts to extend the child support case past the child's 18th birthday and the other party refuses to extend the case, the party that attempted to extend the case has taken reasonable maintenance action and their rate of FTB Part A for that child will not be reduced.

However, in most cases if the payee does not take steps to extend the child support case (obtain maintenance) the payee is deemed to have not taken reasonable maintenance action and their rate of FTB Part A for that child will be reduced to base rate.

Unless action could result in the payer swapping to be the payee, the payer does not have to take maintenance action for FTB purposes.

Where it would disadvantage one party to extend the agreement it may be appropriate that the refusing party not fail the MAT.

Explanation: If extending the agreement would result in an individual who now has full-time care of the children being maintained as a payer, they will not fail the MAT if they refuse to extend. Similarly, if extending the agreement would result in an individual who now has no care of the children being maintained as a payee, they will not fail the MAT if they refuse to extend.

Parents with an agreement that modifies a pre-existing child support assessment do not need the consent of the other parent to obtain an extension of the child support assessment. If the parent does not apply to extend the assessment before the child's 18th birthday, the individual has not taken reasonable maintenance action and their rate of FTB Part A for that child will be limited to base rate.

Act reference: FAAct Schedule 1 clause 10 Effect of certain maintenance rights

Child Support (Assessment) Act 1989 section 93 Liability to pay child support arises on acceptance of application where child support not already payable etc., section 151B Application for assessment/agreement to continue beyond child's 18th birthday, section 151C Application for assessment/agreement to continue - Registrar's decision

Policy reference: FA Guide 3.1.5.70 Exemptions from the maintenance action test

CS Guide 2.5.5 Application to have an assessment continue past a child's 18th birthday

Payer is imprisoned

Imprisonment of the other parent of a child does not automatically remove their liability for child support. To receive more than the base rate of FTB Part A, the individual must take reasonable maintenance action if they are entitled to claim maintenance in relation to the child (unless a MAT exemption applies).

This requirement only applies where the individual is not considered to be a member of a couple (1.1.M.50) with the other parent. Review in these cases should occur at 12 months.

Explanation: Where the individual is still partnered (1.1.P.30) but receives the single rate of PP because their partner is in prison, maintenance action is not appropriate as the separation is primarily due to the partner being imprisoned.

Act reference: SSAct section 1068B-C2 Maximum basic rate (PP)

Policy reference: FA Guide 3.1.5.90 Maintenance action test reviews

Legal advice & action

An individual may have legal advice that their legal representative is unable to assist them. If this is the case, then this circumstance can be used as proof that maintenance action is in progress.

Explanation: This may be for a number of reasons including where the individual does not have enough information to identify the other parent or where the other parent is overseas in a non-reciprocating jurisdiction for child support purposes and it would not be cost effective to pursue child support.

The individual may also be in the process of obtaining legal advice or pursuing legal action to prove paternity or obtain child support. In these cases, documentary evidence of the legal advice or legal action should be obtained as proof maintenance action is in progress. Proof may include a letter from the individual's legal representative.

Policy reference: FA Guide 3.1.5.80 Payer is overseas, 3.1.6.10 Proof of parentage

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