Parents Pay For Kids – Married, Defacto or Other!

Rumours have circulated online about a proposed case against the Child Support regime proposing that only children from marriage are intended to receive Child Support, implying that children from defacto relationships are not liable to receive financial support from their parents.

This is of course complete rubbish. Not only does the law state it as necessary, it’s ethically proper that you support your children!

The Acts are available in the links on this website under Legislation, with excerpts of the relevant sections listed below.

So if you are being approached with the idea you can avoid your child support obligations because you weren’t married when your child was conceived, do not waste your time and money. Instead, understand the law as it applies to you, deal with the Child Support regime armed with knowledge of your rights and responsibilities.


Section 3 of the Child Support (Assessment) Act makes it clear that a parent (regardless of marital status) is liable for their children:

 

3  Duty of parents to maintain their children

             (1)  The parents of a child have the primary duty to maintain the child.

             (2)  Without limiting subsection (1), the duty of a parent to maintain a child:

                     (a)  is not of lower priority than the duty of the parent to maintain any other child or another person; and

                     (b)  has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

                              (i)  himself or herself; and

                             (ii)  any other child or another person that the parent has a duty to maintain; and

                     (c)  is not affected by:

                              (i)  the duty of any other person to maintain the child; or

                             (ii)  any entitlement of the child or another person to an income tested pension, allowance or benefit.

Sections 5 and 6 of the Child Support (Registration and Collection) Act make it clear that the Act considers married and de facto parents as equivalent for the purposes of child support:

5  Extension and application of Act in relation to maintenance of exnuptial children

Extension of Act to States (except Western Australia)

             (1)  Subject to subsections (4) and (5), this Act in so far as it relates to the maintenance of exnuptial children extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.

Extension of Act to Western Australia

             (2)  If:

                     (a)  the Parliament of Western Australia refers to the Parliament of the Commonwealth the matter of the maintenance of exnuptial children or matters that include that matter; or

                     (b)  Western Australia adopts this Act in so far as it relates to the maintenance of exnuptial children;

then, subject to subsections (4), (5), (5A) and (5B), this Act in so far as it relates to the maintenance of exnuptial children also extends to Western Australia.

Application of Act to Territories

             (3)  This Act in so far as it relates to the maintenance of exnuptial children applies in and in relation to the Territories.

Limitations on extension of Act to States

             (4)  This Act extends to a State by virtue of subsection (1) or (2) only for so long as there is in force:

                     (a)  an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:

                              (i)  the matter of the maintenance of exnuptial children; or

                             (ii)  matters that include that matter; or

                     (b)  a law of the State adopting this Act in so far as it applies in relation to the maintenance of exnuptial children.

Note:          See subsections (5A) and (5B) for the extension of this Act to Western Australia if the Act is amended in relation to the maintenance of exnuptial children.

             (5)  This Act extends to a State at any time by virtue of subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to:

                     (a)  the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or

                     (b)  matters incidental to the execution of any power vested by the Constitution of the Parliament of the Commonwealth in relation to those matters.

          (5A)  The Parliament of the Commonwealth intends that this Act, so far as it is amended by one or more other Acts in relation to the maintenance of exnuptial children, not extend to Western Australia, unless and until one of the following events occurs:

                     (a)  the Parliament of Western Australia refers to the Parliament of the Commonwealth the matter of the maintenance of exnuptial children or matters that include that matter;

                     (b)  Western Australia adopts this Act, as so amended.

          (5B)  The Parliament of the Commonwealth also intends that, unless and until one of those events occurs, this Act continue to extend to Western Australia in relation to the maintenance of exnuptial children as if those amendments had not been made.

Note:          If this Act is amended by one or more other Acts in relation to the maintenance of exnuptial children, unless and until one of the events mentioned in subsection (5A) occurs, there are effectively 2 versions of this Act that apply in Australia. This Act, as amended, applies:

(a)    in all States and Territories in relation to children of marriages; and

(b)    in all States and Territories, except Western Australia, in relation to exnuptial children.

                   This Act continues to apply in Western Australia in relation to exnuptial children as if those amendments had not been made.

             (6)  Nothing in this section affects the operation of the provisions of this Act to the extent that they give effect to an international maintenance arrangement.

6  Additional application of Act in relation to maintenance of children of marriages

             (1)  Without prejudice to its effect apart from this section, this Act in so far as it relates to the maintenance of children also has effect as provided by this section.

             (2)  By virtue of this subsection, the provisions of this Act (other than subparagraph (a)(ii) of the definition of collection agency maintenance liability in subsection 4(1) or subparagraph 17(a)(ii)) in so far as they relate to the maintenance of children have the effect that they would have if:

                     (a)  each reference to a child were, by express provision, confined to a child of a marriage; and

                     (b)  each reference to the parents of the child were, by express provision, confined to the parties to the marriage;

and have that effect only in so far as they make provision with respect to the rights and duties of the parties to the marriage in relation to the child, including, without limiting the generality of the foregoing, provision with respect to the rights and duties of those parties in relation to the maintenance of the child.

             (3)  Nothing in this section affects the operation of the provisions of this Act to the extent that they give effect to an international maintenance arrangement.