Obtaining child support will depend upon a number of factors including whether or not both the child and the person applying for child support are eligible under the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). In this article, Lezah Gildea-Marega, an experienced Brisbane Family Lawyer discusses these factors.
Is your child an eligible child for child support assessment?
In the most familiar cases where a child is under the age of 18 years of age and an Australian citizen or ordinarily resident in Australia, there is no doubt of the child’s eligibility.
Children who are not eligible for a child support assessment
The children listed below are children in respect of whom an administrative assessment for child support may not be made:
- Children over 18 years of age (s. 24(1)(a) (ii), Assessment Act);
- Children who are members of a couple (s. 24(1) (a) (iii), Assessment Act);
- Children under the care of a child welfare agency ( 4 Child Support (Assessment); Regulations 1989; s. 22, Assessment Act);
- Children who are not Australian citizens or ordinarily resident in Australia, nor present in Australia, on the day an application for child support is made (s 24(1)(b), Assessment Act), provided that an application for child support assessment may be made in the case of such a child where the application is made under 25 of the Assessment Act.
Does it matter to obtain child support if a parent or the child lives outside Australia?
We consider here what is the position if a parent is not resident of Australia and the child is not an Australian citizen, ordinarily resident in Australia or present in Australia when application for child support is made.
Section 25 of the Assessment Act provides in effect that if either parent of the child is not a resident of Australia on the day on which the application is made and other requirements of the section apply, the application must meet the requirements of sections 29A and 29B of the Assessment Act.
An application may be made under section 29A of the Assessment Act for an assessment even where the child is not an Australian resident or ordinarily resident in Australia or present in Australia when the application or assessment is made where the person by whom child support is payable (ie., the payer) is an Australian resident or a resident of a reciprocating jurisdiction (see Peters & Peters & Ors  FamCAFC 105)
Schedule 2 of the Child Support (Registration and Collection) Regulations 1988 sets out a list of jurisdictions that are “Reciprocating jurisdictions”. These include Hong Kong, Malaysia, India, New Zealand, Germany, France, Italy, the United Stated of America and the United Kingdom as well as many other nations.
It is important to realise though that if a parent is resident of a reciprocating jurisdiction, then the other parent must be resident of Australia before an application for assessment in respect of such a child may be made.
In Peters & Peters & Ors, at , the Court stated that: “…if both the payee parent and the payer parent are not residents of Australia, even if both are living in a reciprocating jurisdiction, the Child Support Registrar could not properly accept an application for an assessment of child support….”
When is a person considered to be resident of Australia?
Whether or not a person is resident of Australia on the day that an application for assessment is made will depend upon whether that person was resident for the purposes of the Income Tax Assessment Act 1936 (Cth) on that day.
Child turning 18 years of age during last year of school, child support may be available
If your child will turn 18 years of age during his or her last year of school, it is possible for an assessment to continue until the child completes that year of full time schooling (s 151B Assessment Act). However, the application to continue the assessment must be made before the child turns 18 years of age.
An adult who has sole or principal ongoing daily care of an eligible child will be eligible to apply for child support. A person who has at least shared care of such a child (35%-65%of nights) may also apply for child support.
If an application for child support is accepted, from what date will the liability to pay apply?
A person’s liability to pay child support arises upon the Registrar accepting an application for administrative assessment of child support (Refer s.31 Assessment Act). It is for this reason that it is important that you make the application for child support as soon as possible or you may lose a claim for child support for any period falling prior to the date of your application.
Liability for Child Support Payments & Paternity Disputes
It is only a “parent” who may be liable under the Assessment Act (Tobin and Tobin (1999) FLC 92-848). In our next blog, we will look at how paternity is determined in cases where the paternity of a child is disputed.
Contact Brisbane Family Lawyers for advice tailored to your circumstances, whether concerning child support, child custody, parenting arrangements, property settlement, divorce or de facto relationship issues. At LGM Family Law, we offer free initial calls where you can obtain some advice about the issues that are concerning you and we offer fixed rate initial consultations where one of our Family Lawyers Brisbane will provide advice tailored to your particular circumstances.
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We prefer to meet you in person but are happy to have a telephone consultation if this suits you. At an initial consultation, we will take some particulars from you so that we can provide you with advice about the likely outcome at family law for your particular circumstances and estimated costs if you wish to proceed further.