The Family Court must consider certain principles before a de facto maintenance application is made into a Court Order, these principles are the same to those considered in spousal maintenance applications. In de facto maintenance applications the Court is required to apply the principle that a party to a de facto relationship ordinarily must maintain the other party in the de facto relationship:-
- only to the extent that that party is reasonably able to do so; and
- only if the person making the de facto maintenance application is unable to support himself or herself due to factors such as: being the primary parent of a child (under 18 years of age) from the de facto relationship or by reason of age or the physical or mental incapacity to obtain gainful employment
This test may look relatively easy to satisfy but the Courts have generally imposed a high standard of proof for applicants to satisfy in order to receive actual maintenance payments
The changes to the Act also benefit children of de facto couples as now a parent of a child in a de facto relationship can apply for child support payments from the other parent.
Child support is the financial support each child is entitled to receive from both of their parents. The Child Support Agency (‘the Agency’) is the organisation that the parent who is predominantly caring for the children must apply to in order to receive payments from the other parent.
When a parent in need of payments first contacts the Agency that parent will be asked to provide information such as whether both parents are Australian residents or citizens, what the citizenship of the children is, the income of both parents and the current care arrangement in place for the children. Once this initial process is completed the Agency will contact the other parent and also the Australian Tax Office to confirm the paying parent’s income.
Factors that are taken into account by the Agency when determining how much child support should be paid are for example: the costs of raising children, the income of both parents, the care each parent provides to the children and whether the paying parent is responsible for supporting any other dependent, biological or adopted children.
The nature of the breakdown in relationships usually makes it difficult for these matters to be resolved without third party intervention. Nonetheless parties to a breakdown should first try all avenues to resolve their differences.
Erin Smyth is a Lawyer at Camatta Lempens Adelaide who specializes in Family Law matters and de facto matters
