3.1.5.70 Exemptions from the maintenance action test

General exemptions

Individuals may be granted a full or partial exemption from the maintenance (1.1.M.10) action test in the following circumstances:

• if they fear that taking action to seek child support (1.1.C.20) will cause the payer (1.1.P.72) to react violently towards them or their family (1.1.F.15)
• where seeking child support may have a harmful or disruptive effect on them or the payer
• if the identity of the other parent of the child or children is unknown
• if they have had legal advice that parentage could not be proven through a court
• if they have been unsuccessful in proving parentage (such as failed attempts to locate a child's other parent)
• where the child was born as a result of a surrogacy arrangement which is not recognised under the Family Law Act 1975
• if there are cultural considerations that adversely impact on the individual's capacity to take reasonable maintenance action
• where the payer in the child support case is deceased, or
• where there are other exceptional circumstances.

These are explained further in this topic. The topic also includes reasons an exemption from maintenance action should not be granted.

Violence or fear of violence

It may be inappropriate for an individual to take maintenance action where:

• there have been documented incidents of violence towards the individual and/or their immediate family by the payer, or
• violence by the payer may occur if the individual takes maintenance action.

Note: This would also include instances where parentage has not been established and there is a threat of violence from the potential payer.

Harmful or disruptive effect

An individual may be exempt where the social worker thinks it would be very emotionally traumatic for the individual to seek child support. This includes cases of rape or incest.

Trauma associated with proving parentage

A social worker may consider that it would be emotionally traumatic for an individual to take action to establish proof of parentage in cases where the parent has not:

• put their name on the birth certificate, or
• acknowledged that they are the parent of the child.

The other parent is unknown

If the individual states that the other parent of the child is unknown, a full copy of the birth certificate or adoption papers and the FTB claim should be sighted before the case is assessed by a service officer with appropriate delegation. The case may be referred to a social worker if it is an unusual or complex case, or if the individual requests to speak with a social worker. Where an individual seeks a 'parentage unknown' exemption for a second or subsequent child the matter will be referred to a social worker.

If there is another parent listed on the birth certificate that the individual states is not the biological parent, the individual needs to verify this information. The Secretary or delegate needs to be satisfied that parentage is not established by the evidence. Evidence of parentage could be provided through a court ruling, a DNA test, or a separate statutory declaration from each party. Legal Aid, or other legal entities, may be able to assist the individual with undergoing DNA testing or seeking other evidence to establish parentage.

If the individual knows who the other parent is and the grounds for presumption of parentage are not met, the individual must take legal action to establish parentage.

If an individual claims not to know who the other parent of the child is, it may be because they are afraid of violence or have other good grounds for an exemption from taking maintenance action. In these circumstances, the individual must be referred to a social worker. If the social worker or service officer with appropriate delegation is satisfied that the individual does not know the identity of the other parent, an exemption may be given.

Note: It is not intended that a letter from Legal Aid in itself would be an evidentiary method.

Unsuccessfully tried to prove parentage

An individual is exempt where:

• a court has said the potential payer is not the parent
• Legal Aid will not fund the parentage case (including when Legal Aid is unable to assist the individual due to remoteness), or
• the potential payer's whereabouts remain unknown and the payee has taken reasonable steps to locate the payer.

If the individual does not provide proof that one of the above circumstances applies and the individual is reluctant to take legal action, they should then be referred to a social worker. If a social worker considers that it would be very emotionally traumatic for the individual, to take court action and the situation is likely to be of a temporary nature, then the social worker may grant a temporary exemption and implement a shorter review period.

Surrogacy cases

An exemption should be granted where a child is born as a result of a surrogacy arrangement which is not recognised under the Family Law Act.

Section 60HB of the Family Law Act states that if a court has made an order under a prescribed law of a state or territory to the effect that:

• a child is the child of one or more persons, or
• each of one or more persons is a parent of a child

then, for the purposes of that Act, the child is the child of each of those persons.

For the purposes of the MAT, the parent/s of the child are those people listed in the court order as the parent/s of the child. In circumstances where these parents separate they are not exempt from the MAT on the basis that there was a surrogacy arrangement involved in their case. However, other exemptions may apply.

Where there is no court order as described above, the surrogacy arrangement is not recognised under the Family Law Act. In these cases, the individual is exempt from the MAT because it would be unreasonable for them to seek maintenance from the birth parent who had the child on behalf of the individual and their partner (if any).

If an individual had a partner at the time they first claimed FTB for a child born under a surrogacy arrangement and the individual's relationship with the partner ends, the individual is not required to seek maintenance from the partner. This is because, under child support legislation, maintenance can only be sought from a legal parent of the child and neither the individual nor their former partner is the child's legal parent.

Cultural considerations

Particular care should be given to an individual's cultural background. There are also wide differences in attitudes to marriage, gender roles and parenting among different ethnic groups, and these factors should be taken into account as they affect individual cases. An assessment of cultural considerations may indicate that maintenance action would not be successful and might cause hardship to the individual and/or their community.

If the social worker considers that pursuing child support would be unsuccessful or cause hardship to the individual and/or their community, an exemption may be granted.

Cultural considerations - Aboriginal & Torres Strait Islander Australians

In some situations individuals may refuse or be reluctant to take action to receive child support because of their cultural beliefs. Aboriginal or Torres Strait Islander Australians should be referred to a social worker who will consult with an ISO for a recommendation about an exemption. A social worker should consult with an ISO to seek advice on cultural beliefs and other considerations in order to make an informed decision. Situations where it may be culturally inappropriate for the individual to take child support action include:

• where the child is born as a result of a culturally prohibited relationship
• where extended family responsibilities require the family to share in the care of the child and maintenance action would cause undue disruption to these arrangements, and
• where action to obtain child support might cause hardship to the individual and/or the community.

Exemptions for Aboriginal or Torres Strait Islander Australians on the basis of fear of violence or the identity of the other parent is unknown should still be referred to the social worker as the social worker still has primary responsibility for these cases. However, it is recognised that the ISO can provide valuable assistance to both the individual and the social worker in obtaining the necessary information to help decide these cases. The assessment of these cases may be undertaken jointly by the ISO and the social worker. In these cases it is appropriate for a joint interview involving both the ISO and the social worker.

Payer is deceased - ending a child support case

From the date that the payer in a child support case is deceased, individuals should receive a full exemption from the MAT for any relevant children as it is no longer reasonable for the individual to take maintenance action. If the individual is privately collecting child support and is owed arrears from the deceased payer they should receive a partial exemption for the arrears owed.

Other exceptional circumstances

There may be other situations where the social worker considers that it is inappropriate for the individual to take maintenance action. If the social worker considers that the individual should be exempt due to exceptional circumstances, policy advice should be sought from the local policy unit. These circumstances could relate to a range of different situations experienced by individuals, including threats from the payer, or in certain circumstances, a lack of cooperation from the payer that prevents the individual from taking maintenance action.

Partial exemptions from the MAT - private collect cases

A partial exemption may be granted in cases where an individual is collecting child support privately and:

• has a fear of violence
• there is risk of harmful or disruptive effects
• there are cultural considerations to take into account, or
• there are other exceptional circumstances that make it unreasonable for them to pursue the collection of their full entitlement or to transfer collection method to Child Support.

Individuals in this situation will be referred to a social worker for assessment who may grant a partial exemption.

The partial exemption enables the individual to collect whatever they can privately without the full deemed amount being applied. This may also apply to any outstanding arrears that the individual elects not to collect.

In these circumstances, the individual's rate of FTB Part A will be based on the actual amount of child support received, not the amount of the child support assessment. If, at a later date, the individual collects the non-paid child support assessment amount, the amount received should be included in the maintenance income test (MIT) in the year it is actually received.

Where an individual is owed arrears by a payer who is now deceased, any arrears received are not treated as maintenance (3.1.7.12) for the purpose of the MIT. A partial exemption should be applied against the outstanding arrears amount. This means the individual does not need to collect the arrears.

Partial exemptions from the MAT - no child support assessment in place

A partial exemption from the MAT can be granted in circumstances where an individual does not have a child support assessment in place of any kind, but the other party is voluntarily paying child support to the individual, and there is:

• a fear of violence
• risk of harmful or disruptive effects
• cultural considerations to take into account, or
• other exceptional circumstances that make it unreasonable for the individual to formally take maintenance action.

Individuals in this situation will be referred to a social worker for assessment who may grant a partial exemption.

Where such an exemption is granted, it allows Centrelink to count any child support the individual receives under the MIT.

Backdating of exemption

In certain circumstances, backdating of an exemption in relation to an instalment or a past period claim may be undertaken by a social worker. For this to occur, the social worker will undertake a professional assessment to confirm that the circumstances warranting the granting of an exemption existed for the duration of the past period.

It may also be appropriate to grant a backdated exemption along with an ongoing exemption where the social worker becomes aware of circumstances warranting it that existed over the past period and continue to apply presently.

While an exemption from taking maintenance action can be backdated as far back as there is supporting evidence, arrears of amounts of FTB Part A above the base rate may be limited by date of effect rules. If the review application is made on a date later than 52 weeks after the individual was given notice of the original decision (decision that the individual was only entitled to the base rate of FTB Part A) then the date that the review decision comes into effect is the later of:

• the date from which full arrears are payable, OR
• 1 July of the income year before the income year in which the review decision is made.

Review of exemption

The Centrelink officer determines the types of review required at the end of the review period. The main purpose of the review is to assess whether the individual's circumstances have changed in such a way that an exemption is no longer appropriate. The review does not necessarily have to take the form of a referral to a social worker or ISO. However, if the decision maker is unsure what form the review should take, they should discuss the matter with a social worker, ISO and/or the child support unit.

When an individual is given an exemption as a result of violence, or if there is a fear of violence, their exemption will be reviewed 12 months after the date the exemption is applied. This review will be undertaken by a social worker who will contact the individual and assess if an exemption is still warranted. The social worker can determine a shorter or longer review period if there is a reason to do so. If the social worker determines that the exemption is no longer required, the individual will be advised that they are required to contact Child Support to apply for a child support assessment within 14 days.

Reasons exemption from maintenance action should not be granted

Exemptions should not be made for the following reasons:

• the individual never lived with the payer, and/or
• the individual does not want any involvement with the payer.