In these uncertain times Mathews Family Law continues to be available to provide you with family law advice and support
Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.
The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.
The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT
community throughout the world and the end to rules that unfairly discriminate against such individuals and, in
many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT
people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of
some members for the benefit of the IAFL as a whole and the LGBT community.
The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and
expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are
The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly
donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46
jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your
jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’
Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.
Child Support can be sought via the Child Support Agency or a Child Support Agreement. Legal and adoptive parents will be recognised as having parental responsibilities towards the child.
Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the legal parents of children of marriages also apply to the legal parents of children of same sex couple relationships. A partial resolution to this issue is for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.
As you and your spouse separate and divorce, child support will be a one of the issues you will need to address. The primary purpose of child support is to guarantee that children’s day-to-day needs will be met through regular periodic support payments. Additionally, child support allows children to enjoy the same or similar standard of living of their parents. Child support can be arranged by agreement between the parents, or through an administrative assessment conducted by the Child Support Agency (CSA).
Child Support Agreements
Often the best way to arrange for child support is through an agreement between the parents in the form of a child support agreement. This method allows parties to deviate from the formula used in the administrative assessment used by the CSA to determine support. There are two types of agreements that may address child support: a binding child support agreement and a limited child support agreement.
Child support agreements are considered binding if both parties to the agreement were given independent legal advice (from separate counsel), and the agreement must state that this is in fact the case. Additionally, the counsellor who administered the legal advice must also execute and sign a certificate, which is included in the agreement. A binding child support agreement can be for any amount – including an amount less than prescribed under the CSA formula.
Unlike a binding child support agreement, a limited child support agreement does not require that the parties obtain independent legal counsel. The only requirements for this type of arrangement are that the agreement be in writing, signed by both parties, and that the amount agreed to is at least equal to the amount payable under the child support agency formula.
It is not possible to modify or alter a child support agreement; rather you must terminate the agreement and enter into a new one. The Child Support Assessment Act provides for several ways to terminate a child support agreement:
Child Support Agency and Administrative Assessments
Should you and your former spouse be unable to reach an agreement and execute either a binding or limited child support agreement, you may arrange for child support through the CSA. In order to obtain this, you must first make an application for administrative assessment of child support. The assessment will be made using the appropriate formula and can be subject to private enforcement or registered for collection through the CSA.
Administrative assessments are calculated by using a formula that requires parents to share in the support of their children and is based upon the level of care provided as well as their respective incomes. The various applicable formulas take into consideration a child support income amount, adjusted taxable income, self-support amount, and relevant dependent child allowance, among other figures. There are six formulas available, although the most common is “formula 1.”
The steps to determine formula 1 are as follows:
Parent’s daily child support percentage for the day
X (multiplied by)
Costs of the child for the day
Formulas 2, 3, 4, 5, and 6 are less common. They are variations provided to consider non-parent carers, non-resident parents, multiple cases, and special circumstances or deceased parents.
Should any of the elements used in the formula change, the CSA should be notified so that the child support amount may be recalculated.
It is possible to be awarded an amount that is inconsistent with the administrative assessment of child support. If you are seeking a departure from the assessment you simply need to fill out a form and submit it to the CSA who will then schedule a conference to hear the parties. A written decision is ultimately provided to both parties. In determining whether a departure is proper, grounds for such must be established, it must be just and equitable, and it must be deemed otherwise proper, and there must be a special circumstance. The Child Support (Assessment) Act 1989 has enumerated ten types of special circumstances:
A child support assessment ends upon a child support terminating event. Such an event can occur when the child turns 18, when the child is adopted, or when the child, carer or liable parent dies among other events.
Alternative Payment Methods
While it is most common to receive child support in periodic payments, it is also permissible to receive it in a lump sum payment. The most common situations where lump sum orders are considered are where there are difficulties in enforcement or where the liable parent is asset rich and income poor, although there are many other situations in which a lump sum could be awarded.
Another payment method that has been gaining in popularity is a combination of the periodic payment and lump sum concepts. This results when the liable parent deposits the sum to be held on trust and distributed as child support liabilities accrue.
Finally, a party does have a right to make objections regarding decisions made by the CSA. The objecting party must lodge the objection 28 days from service of the decision, and a decision regarding the objection will be made within 60 days. Additionally, there is a formal process available to allow parties to appeal an objection decision.
Maintenance – The Basics
Maintenance is available to those who were married, and also those who were part of a de facto couple. While there is no automatic right to maintenance, the court may choose to issue an order for maintenance if the facts indicate that it is proper. When faced with whether to issue an order for maintenance, the court will consider a myriad of factors, such as the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.
When an order for maintenance is issued, it is intended to be temporary. The ultimate objective of maintenance is to help the financially disadvantaged party to reach a point of self-support. Most maintenance orders do not last more than three or four years, as the court ultimately wants all parties to reach a point of financial independence so the relationship can be finalised.
If certain specific circumstances have arisen since the order has been issued, the order may be varied. The court may only take this action, however, if one of the circumstances proscribed in the Family Law Act has occurred. An example of when an order for maintenance may be varied is where the cost of living has changed to justify a variation.
Orders for maintenance will terminate upon the occurrence of an event, for instance if either party dies or remarries. However, termination of an order does not affect your right to collect an arrearage.
Maintenance – The Details
When there is a disparity between parties’ income and earning capacity, the Family Law Act allows this disparity to be remedied through the something called “maintenance.” Typically, maintenance is only available for a short-term period – about three to four years. The idea behind only allowing a party to receive maintenance for a relatively brief period of time is that the maintenance payments are intended to compensate the recipient while that person takes steps to enter the workforce or re-establish him or herself.
Much like the approach to property division, the objective of maintenance is to work towards a “clean-break” between the parties. Maintenance is intended to be a temporary crutch to help the financially disadvantaged party get back on their feet and subsequently be able to independently support themselves.
An action for maintenance can be brought before divorce, after divorce (but within 12 months), even if the parties’ marriage is void, and after the breakdown of a de facto relationship. The two major limitations with regard to orders for maintenance are that you must get leave or court (special permission) to seek maintenance after 12 months of the divorce being final, and you cannot seek maintenance if there is a binding financial agreement that addresses maintenance.
Who Is Entitled to Maintenance?
The Family Law Act provides for three circumstances that warrant an order for maintenance for formerly married couples. Said circumstances are:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any adequate reason,
Additionally, the court must consider relevant factors in making this determination. Those factors include: the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.
There is a similar provision regarding maintenance for de facto couples. While there is no automatic right to maintenance, one party may be liable to pay maintenance towards the other party to the extent that the party can reasonably do so and only in circumstances where the other party is unable to support himself or herself adequately. The test used by the courts is not whether the applicant is in need of maintenance, but rather if that person is in a position to support themselves with their own resources.
Types of Maintenance Orders
An order awarding maintenance can be made several ways; by consent, after a contested hearing or to meet urgent needs. The Family Law Act gives courts the authority to issue an urgent maintenance order without a detailed enquiry, which would normally be required upon application for maintenance. These cases are rare, and only exist where one party is in immediate need of financial assistance. These orders differ from regular maintenance orders and only last for a limited duration.
Another type of maintenance order is referred to as a secured maintenance order. This occurs where the court makes a requirement that a maintenance order be secured by some type of collateral. These orders minimize the risk of default, and also make the enforcement of a maintenance order easier.
Maintenance can be in the form of periodic payments, a lump sum, or use of the car or home. The modern trend is for maintenance to be issued in a lump sum amount. This is preferable because the objective of awarding maintenance is to provide the financially disadvantaged party temporary help to reach a level of self-support. Often, a lump sum works towards this objective better than periodic payments.
Varying and Terminating Maintenance Orders
Maintenance orders differ from other family law orders in that they may only be varied on limited grounds. In order to have the amount of a maintenance order increased or decreased, the following circumstances must have occurred since the order was made or last varied:
While the court enjoys slightly more discretion when varying other orders in family law proceedings, it is clear that they may only vary maintenance orders for the reasons laid out above.
Once a maintenance order requiring the payment of a lump sum has been executed, and the money paid, that order can no longer be varied. Such orders are deemed to have completed and at that point cannot be altered.
An order for maintenance will terminate upon the happening of various events. It will terminate at a time prescribed in the order, when the order is discharged, when one of the parties dies, or when a party remarries. However, it is important to keep in mind that once a maintenance order terminates, your rights to collect arrears do not also terminate. If you are owed maintenance, you may still collect it despite the fact that the order is no longer in affect.
Child Support Enforcement and Collection
Australia has come a long way when it comes to child support enforcement. In 1988, les than 30% of child maintenance was paid, and in response, Australia passed the Child Support (Registration and Collection) Act. This required child support obligations to be registered, and thus become a debt to the Commonwealth. Prior to making this change, child support collection was a major issue for many Australians.
The legislation was passed in hopes of ensuring that children receive child support on a regular and timely basis. Fortunately, since the Act was passed non-payment issues have decreased significantly.
Child support, child maintenance, and spousal maintenance may all be registered for collection. Once registered, and the details entered into the child support register, the Child Support Agency (CSA) may enforce payment. When payment is not timely, the CSA reserves the right to impose penalties, which are retained by the CSA and not given to the payee.
This registration process is how the liability becomes a debt to the Commonwealth, and thus enforceable by the CSA. The CSA can enforce child support using the traditional court enforcement process.
A payee may enforce child support payments even if the debt has been registered for collection. As long as the payee notifies the Registrar in writing, 14 days before instituting the proceeding, the payee may sue and recover the debt due. A shorter notice period may be appropriate if there are exceptional circumstances.
Alternatively, the CSA may use the Federal Magistrates Court to enforce child support payments. Under these proceedings the court is not permitted to vary the child support liability or remit any penalties, the proceedings are strictly intended to be enforcement summons. The court is charged with the task of making an inquiry into the financial circumstances of the payer, and subsequently assessing his or her ability to pay the arrears.
Once the debt has been proved, the court may enforce the payment through a variety of methods, including garnishment, seizure of property, sequestration of the estate, sale of an interest in real property, or any other method necessary.
The CSA has several methods it may use to enforce collection of child support payments. They are as follows.
In sum, there are several ways in which you can ensure any child support obligation due to your child will be paid. Thanks to the legislation passed in 1988, non-payment issues have been on the decline as it provides for easy and effective ways to enforce and collect payments owed.
The issue of paternity can sometimes present problems for a party who is seeking child support from someone who is claiming not to be the father of the child. While the court does not have power to order paternity testing simply to satisfy doubts of a parent, the court may order such testing where the parentage of a child has been at issue in proceedings. There must be some evidence that places the issue of paternity in question before the court will order testing.
If paternity is disputed in your case, you may make an application directly to the court seeking a declaration. If the parties have not agreed to parentage testing, the court will order the parties to do so in order to resolve the issue and make a declaration.
Once paternity has been determined, either through parentage testing or by the court’s determination, the court may make a declaration of parentage that is considered conclusive and binding for all future hearings. Additionally, upon establishing parentage, a party may seek child support through the regular process.
Impact on Child Support
Paternity tends to be at issue in child support disputes more than any other area in family law. The reason for this is that the Family Law Act provides that only a “parent” may be liable to pay child support. It may come as a surprise, but determining if someone is a “parent” by definition is often difficult. Recent cases have addressed the complexity of determining parentage in same sex couples, as well as couples who use artificial conception.
Unfortunately, because only a parent is liable for child support, it is not uncommon for an alleged father to dispute paternity in hopes of avoiding this liability. The Family Law Act has provided a list of circumstances in which paternity can be assumed, however the challenging party may still dispute the assumption.
Paternity is to be assumed by the Child Support Agency where the birth certificate names the father, if the child was born during marriage, the person’s name is found in a register of births, a court has found that the person is the parent, the person has executed an instrument acknowledging parentage, or the child has been adopted by the person.
Who can be ordered to undergo testing?
Anyone who is at least eighteen years old may be asked to undergo parentage testing, regardless of whether they are a party to the proceedings. The court is granted broad discretion in this area, and may order anyone whom it believes could aid in determining the parentage of the child to undergo testing.
Should the party asked to take a paternity test be less than eighteen years old, his parent or guardian will have to provide consent. If the parent or guardian fails to provide consent, this action alone could have an impact on the case. In a situation where the parent or guardian refuses to consent to the testing, the court is permitted to draw conclusions as it sees fit. Refusal, however, is not automatic grounds for the court to conclude paternity; the court is still required to consider the circumstances for the refusal, such as religious or cultural reasons.
Methods of Testing
There are several ways to test parentage. Provisions in the Family Law Act discuss in detail the procedures to be followed in prescribing a parentage test; the methods range from blood group testing to genetic fingerprinting. The court is given discretion with regard to this testing and may impose any terms or conditions it sees fit, including requiring a person to submit to a medical procedure, provide a bodily sample, or disclose a medical or family history.
DNA testing formerly required a blood sample, however now the kit can be completed from using a swab from the inside of the cheek. DNA testing is both painless and accurate, typically showing a probability of parentage of at least 95%.
An accredited laboratory must carry out the test, and a list of those laboratories can be found at www.nata.asn.au.
Non-Paternity: Recovering Child Support
The Family Law Act permits the court to make just and equitable orders if child support has been paid by a person declared not to be the father. The court will consider a myriad of factors, including whether either party knew or should have known that the payer was not the parent, the relationship between the payer and the child, and the financial circumstances of both the payee and payer among other factors.
Partners in a same sex couples can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.
One difference for same sex couple maintenance order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.