3.1.5.60 When maintenance action is not applicable

Maintenance action not applicable

There are certain categories of children and individuals to which maintenance action does not apply. Maintenance action is not applicable in relation to the child if:

• the child
  • is in the individual's care for less than 35% of the time (less than 128 nights a year)
  • was conceived via an artificial conception procedure (ACP) and the birth parent did not have a partner at the time of conception (or their partner did not consent to the procedure) depending on the circumstances of the case (see Artificial conception procedure (ACP) & parentage below), or
  • is 18 years of age and certain circumstances apply (see Child aged 18 years below).
• the individual
  • has care of the child, but is not considered to be their parent, or
  • is blind and receives an Age, DSP, or a service pension, veteran payment or an income support supplement under the Veterans' Entitlements Act 1986.
• a payer is deceased.

These are discussed further in this topic.

Child is in care for less than 35% of time

If a parent has care of a child for less than 35% of the time (less than 128 nights a year), they are not required to take maintenance action as they are not entitled to claim maintenance for the child. They may however be required to pay child support.

Artificial conception procedure (ACP) & parentage

The Family Law Act 1975 and state and territory legislation define who the parents of a child are where the child was conceived via an ACP. Generally:

• the individual who gave birth to the child is the birth parent of the child
• their partner who consented to the ACP is the other parent of the child, and
• the donor of any genetic material (whether ovum or sperm) is not a parent of the child (unless the sperm donor is the partner of the birth parent).

There is generally a presumption that if the individual who gave birth to the child did not have a partner at the time of the ACP (or their partner did not consent to the ACP), there is no other parent of the child.

The following table provides guidance on how the MAT should be applied in cases of ACP, depending on whether the ACP was through a medical clinic or professional or self-administered.

Child aged 18 years

There are 3 circumstances where maintenance action does not apply to a child aged 18 years. These are where:

• the child is a senior secondary school child, but the child has completed the last day of school in the year in which the child turned 18
• the child is a senior secondary school child but the child is exempt from the FTB activity test, or
• the above 2 points do not apply, but there was never an entitlement to maintenance in relation to the child before the child turned 18.

Maintenance action is not applicable in the first 2 situations described above as maintenance is not available through Child Support where the child has turned 18 and is not in full-time secondary education. In the third situation above, maintenance action is not applicable as maintenance cannot be claimed after a child turns 18.

Note: Maintenance action does apply where a senior secondary school child has turned 18, they are still in school and the school year in which the child turned 18 has not ended and an individual was entitled to maintenance in relation to the child before the child's 18th birthday. This is because, in these circumstances, maintenance can be extended by application to Child Support before the child's 18th birthday, until the end of the school year.