Effective until 30 June 2008
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| CSA's previous online law & policy guide Effective until 30 June 2008 |
4.3.4: Family Law Act orders affecting a child support assessmentContext Orders under the Family Law Act may affect a child support assessment. Legislative references Section 60D, 66M and 69VA Family Law Act 1975 Division 4.2.4, Rule 4.16 Family Law Rules 2004 Sections 4 and 8A Child Support (Assessment) Act 1989 Explanation The following is an explanation of how CSA will interpret Family Law Act orders that affect the assessment of child support
Orders in relation to step-children A payer's step-child is considered to be their relevant dependent child if the step child is in the payer's sole or major care and there is an order in force under section 66M of the Family Law Act in relation to the payer and the step-child. The inclusion of a relevant dependent increases a liable parent's exempt income and reduces the amount of child support payable. To be able to get an order under section 66M the payer must be married, or have been married to a parent of the step-child (section 60D(1) of the Family Law Act). Payers in de facto relationships are not able to get orders under section 66M for children of their partner that are in their care. For an order to be made under section 66M there must be proceedings between the child's parent and the payer about child maintenance (Mulvena and Mulvena and Butler and Edwards [1999] FamCa 280 and an unreported decision of Faulks J CAF 620 of 1998). In making an order under section 66M the court has to take into account:
If a payer is living with their spouse and step-child there may be no basis for the court to order that the step-parent pay child maintenance for the step-child (Unreported decision of Brewster FM [2003] FMCAfam320 and an unreported decision of Family Court at Newcastle, per Mullane J, TV803 of 2001, made on 2 March 2005). If the payer and his or her spouse consent to an order it can only be made if notice has been provided to those who may be affected by it. The Family Law Rules, Division 4.2.4, Rule 4.16, require that the applicant serve a copy of the application, affidavit and financial statement on the step-child's other parent and any other person likely to be affected by the order sought. This would include CSA and any parent or carer of a child that the step-parent has a duty to maintain. Declaration that a person is a parent of a child If parentage is in issue in proceedings under the Family Law Act a court can require evidence and make a conclusive declaration about parentage (section 69VA of the Family Law Act). A declaration under section 69VA will satisfy CSA that a person is a parent of a child if an application is made for a child support assessment. If CSA has refused to accept an application for an assessment and the court later makes a declaration CSA is taken to have accepted the application. If there were other reasons for refusal apart from parentage CSA must reconsider the decision. If the application to court was made within 28 days of the applicant being advised that the application for assessment had been refused the assessment will start on the day the child support application was made. If the application to court was made outside that 28 day period the assessment will start from the day the declaration was made. Or, if there were other grounds for refusal of the initial application for assessment, the date the application is accepted. Orders for residency and contact that have been contravened without reasonable excuse This topic is covered in more detail in the chapter 2.2 Eligibility (including parentage and care). Version 1.5 Issued 1 January 2007 |
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