4.3.5: Effect of a court order for maintenance of an eligible child where there is no assessment

Context

The Family Law Act states that a court cannot make an order for the maintenance of a child under that Act if a parent may apply for an assessment of child support for that child.

Legislative reference

Sections 63G, 66E, 86 and 87 Family Law Act 1975

Section 152 Child Support (Assessment) Act 1989

Explanation

Section 66E of the Family Law Act states that a court shall not make an order for the maintenance of a child under the Family Law Act where an application could properly be made under the Assessment Act in relation to the child and the parents.

Occasionally a court makes an order under the Family Law Act which should not have been made because one or both of the parents was eligible to apply for an administrative assessment. However, CSA will accept that such an order is validly made and will register it, subject only to checking that the order has not expired, or has not ceased to be in force.

CSA will advise both parents if it is notified of a court order that appears to contravene section 66E that they may apply for an assessment. If CSA accepts the application, the court order will cease to have effect from the start date of liability of an assessment (section 152).

If the order was made by consent and a copy has been signed by both parents, one of the parents may apply to CSA for acceptance of the order as a child support agreement (subject to section 91A which creates special requirements for payees in receipt of more than the base rate of Part A Family Tax Benefit). (See chapter 2.5, heading Application for acceptance of agreement)

Where CSA becomes aware that it has registered an order that contravenes section 66E of the Family Law Act, it will not 'deregister' the order. CSA will advise both parents that the liability will continue to be payable under the order, unless either parent applies for an administrative assessment. If the order is signed by both parents, CSA will also advise them that either parent can apply for acceptance of the order as a child support agreement.

Maintenance provisions in a parenting plan or child maintenance agreement

A provision for periodic child maintenance in a parenting plan or child maintenance agreement made under the provisions of the Family Law Act has no effect and is not enforceable in any way (sections 63G(5), 86(3B) and 87(4D) Family Law Act). CSA will not register such an agreement or provision as a court order. However, if a copy of the parenting plan or child maintenance agreement is signed by both parents then either may apply for it to be accepted by CSA as a child support agreement (subject to section 91A of the Assessment Act which creates special requirements for payees in receipt of more than the base rate of Part A Family Tax Benefit). (See chapter 2.5, heading Application for acceptance of agreement)

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Version 1.1

Issued 18 February 2003

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