1.5.2: Child's residence

Context

CSA can make or continue a child support assessment for a child who meets the residence requirements of the Child Support (Assessment) Act 1989. These requirements can be modified if the payee or payer is in a reciprocating jurisdiction.

Legislative references

Sections 12 and 24 Child Support (Assessment) Act 1989

Regulation 11 Child Support (Assessment)(Overseas-related Maintenance Obligations) Regulations 2000

Australian Citizenship Act 1948

Explanation

A person can apply for a child support assessment for a child who is (section 24):

• present in Australia on the day of the application; and/or
• an Australian citizen, or ordinarily resident in Australia on the day of the application.

This requirement is modified if the payee or payer is in a reciprocating jurisdiction that is not an excluded jurisdiction (See chapter 1.6 Overseas cases).

A terminating event occurs for the child when the child does not meet at least one of the following residence requirements:

• the child is present in Australia;
• the child is an Australian citizen;
• the child is ordinarily resident in Australia.

This does not apply if the child is in a reciprocating jurisdiction that is not an excluded jurisdiction (See chapter 1.6 Overseas cases).

Present in Australia

This term has its ordinary meaning. It means physically present in Australia.

An Australian citizen

Acquiring Australian citizenship

At birth

A person can acquire Australian citizen at birth.

A child born in Australia before 20 August 1986 is an Australian citizen (section 10 Citizenship Act).

A child born in Australia on or after 20 August 1986 is an Australian citizen only if:

• the child's parent was an Australian citizen or a permanent resident when the child was born; or
• the child was ordinarily resident in Australia until they were 10 years old.

By adoption

A child who is adopted by one or more Australian citizens can acquire citizenship by adoption. The child must be present in Australia as a permanent resident at the time that they are adopted under the law of an Australian state or territory (section 10A Citizenship Act).

By descent

A person who is not an Australian citizen by birth can acquire citizenship by descent (sections 10B, 10C and 11 Citizenship Act). To do this they must apply to the Minister for Immigration for registration as an Australian citizen. They become an Australian citizen if the Minister decides to register them as a citizen.

By application

A person can also apply to the Minister for Immigration for Australian citizenship (section 13 Citizenship Act). They become an Australian citizen if the Minister decides to grant their application. The Minister can also grant citizenship to the person's spouse and children.

Losing Australian citizenship

In certain circumstances, a person can cease to be an Australian citizen if they:

• renounced their Australian citizenship (section 18 Citizenship Act);
• served in the armed forces of a country at war with Australia (section 19 Citizenship Act).

If that person is also a responsible parent of a child under 18, and the child is a national or citizen of another country when their parent ceases to be an Australian citizen, the child also ceases to be an Australian citizen (section 23(1) Citizenship Act).

In certain circumstances, the Minister for Immigration can deprive a person who is convicted of an offence of their Australian citizenship (section 21 Citizenship Act). If that person is also a responsible parent of a child under 18, the Minister can also direct that the child ceases to be an Australian citizen (section 23(2) Citizenship Act).

A 'responsible parent' of a child is (section 5(2) Citizenship Act):

• the child's parent, unless they no longer have any parental responsibility for the child because of a Family Court order
• any person who has a residence order for the child
• any person responsible for the child's long-term or day-to-day care, welfare and development under a specific issues order
• any person with joint or sole guardianship or custody of the child.

However, the child cannot lose or be deprived of their Australian citizenship because of the action of their parent while they still have another responsible parent who is an Australian citizen.

Ordinarily resident in Australia

This term also has its ordinary meaning. It applies to a child who is not physically present in Australia, but who usually lives here. CSA will take into account the same factors that it considers when deciding whether a payer resides in Australia (i.e. in the ordinary meaning of that term).

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Version 1.0

Issued 1 October 2002

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