Courts can make child maintenance orders if separated or divorced parents need to continue providing financial support to a child who has turned over 18 years of age. This generally happens if a child who has turned 18 is still enrolled in school. In other cases, it may be possible that the adult child has some physical or mental disability. In this instance, separated or divorced parties will need to provide child maintenance to the kid.
Courts can make child maintenance orders either when someone makes applications for the same, or if parties reach agreements to pay child maintenance (for over 18 kids) or to pay child support (for under 18 kids). Services Australia generally makes assessments to determine amount of maintenance or support payable.
In this article, we will be exploring Division 7 under Part VII of the Family Law Act. Part VII of the Act consists of all relevant sections for matters related to children in family law. Division 7 highlights all points in relation to adult child maintenance order.
Child Support Versus Child Maintenance Orders
If two parties have divorced or separated, they need to ensure that all the children from the relationship are financially supported. This obligations falls on the paying parent as well as the parents who collect child support payments. Child support ensures financial stability for children. The key difference between child support and child maintenance is that parents provide child support to children who are under 18.
On the other hand, for children who are over 18 who still need financial assistance, parents provide child maintenance or adult child maintenance. This can happen if the 18-year-old is still in secondary school, or if he/she is unable to find employment that can help them become financially independent. They may be unable to find a job due to a mental or physical disability.
Similar to child support, the adult child can use child maintenance payment for food, clothing, and health-related or education-related expenses. In this article, we will be focusing on the introductory Sections of Family Law Act that outline points in relation to child maintenance and child maintenance orders.
Section 66A: What This Division Does
Section 66A falls under Subdivision A of Division 7 of the Act. It provides an outline of the objectives of Division 7 i.e. the Division on child maintenance orders. According to Section 66A, the Division deals with the:
- relationship between this Division and the Child Support Assessment Act (1989) i.e. the child support legislation
- applying for and making child maintenance orders
- aspects of power of family court in relation to these orders
- varying the maintenance of certain children
- when the maintenance orders stop being in force
- recovery of amounts paid under these orders
Section 66B: Objects of the Division
Section 66B falls under Subdivision B of Division 7, Part VII of the FLA. Subdivision B also consists of Section 66C and 66D. According to Section 66B, the following are the objects of the Division:
- The principal object of Division 7, Part VII is to make sure that children receive a proper level of financial support from their parents.
- Children should have their needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents, and
- Parents should share equitably in the support of their children
Section 66C: Principles (Part 1)
This Section states that parents have the primary duty to maintain their children. To provide clarification of this duty of parents, the Section further states the following points:
- The duty of a parent to maintain the child is not of lower priority than their duty to maintain any other child or person; and
- This duty of parents has priority over all other commitments of parents, other than the commitment necessary to enable the parent to support themselves, or any other child or person that they have the duty to maintain.
Moreover, the Section also states that this duty is not affected by:
- Any other person’s duty to maintain the child, or
- Any entitlement of the child or another person to an income tested pension, allowance or benefit.
Section 66D: Principles (Part 2)
Section 66D outlines principles specifically in relation to step-parents’ duty to maintain the child. According to this Section, the step-parents have a duty to maintain the child if a family court determines that it is appropriate for the step-parent to have that duty.
The court can determine this in relation to points mentioned under Section 66M. For example, in determining this, the court can take into consideration the relationship that existed between the step-parent and the child, etc. Moreover, the Section states that any duty of the step-parent to maintain their step-child:
- is a secondary duty subject to the primary duty of the parents of the child to maintain the child, and
- does not deviate from the primary duty of the parents to maintain the child
Section 66E: Child Maintenance Order in Relation to Child Support Assessment Act (1989)
Section 66E discusses the relation of child maintenance orders with child support. Child support is the financial support payment that parents make for children who are under 18 years of age. Child support is used for a variety of things like housing expenses, food, clothing, health or educational expenses of the child.
This Section states that child maintenance orders should not be made where an application for administrative assessment of child support can be made instead. It states that a court having jurisdiction under this Part should not make, vary or revive any child maintenance order if the applicant can make an application under the Child Support (Assessment) Act (1989).
Seek Legal Advice From Family Lawyers
Child support payments and child maintenance are important matters within family law. A divorce or separation takes a mental toll not only the parties directly involved, but also on the children from the marriage or de facto relationship. This is why these matters should be taken very seriously.
Those who want to seek advice before applying for child maintenance orders should consult family lawyers who have a wealth of experience in dealing with any legal matter. At JB Solicitors, our family law team is well-versed with all aspects of the law. We have the knowledge and experience to offer tailored-advice to all our clients.
To read about other Parts and Sections of the Family Law Act, click here. For more information on the child support scheme, or if you require legal advice, do not hesitate to contact our friendly team today.
