3.1.5.70 Exemptions from the Maintenance Action Test

General exemptions

From 1 July 2008, if a parent has care of a child for less than 35% of the time (less than 128 nights a year) they are no longer required to take maintenance action as they no longer have an entitlement to the child-related components of FTB. They may however be required to pay child support if the other parent and/or guardian have a child support case against them.

Applicants/recipients may be granted an exemption from the maintenance (1.1.M.10) action test in the following circumstances:

• if they fear that if they take action for child support (1.1.C.20) the payer (1.1.P.72) will react violently towards them or their family,
• where seeking child support may have a harmful or disruptive effect on them or the payer,
• if the identity of the other parent of the child or children is unknown,
• if they have had legal advice that paternity could not be proven through a court,
• if they have been unsuccessful in proving paternity, such as failed attempts to locate the father,
• where the child was conceived through AIP and the birth mother was neither married or in a de facto relationship at that time,
• if there are cultural considerations that adversely impact on the applicant/recipient's capacity to take reasonable action, and
• where there are other exceptional circumstances.

These are explained further in this topic. The topic also includes reasons an exemption from maintenance action should not be granted.

Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews, 3.1.5.100 Role of the AILO & Social Worker

Violence or fear of violence

It may be inappropriate for an applicant/recipient to take maintenance action where:

• there is a history of violence towards the applicant/recipient and/or their immediate family by the payer, or
• the payer has stated that this will occur if the applicant/recipient takes maintenance action.

Policy reference: FA Guide 3.1.5.100 Role of the AILO & Social Worker

Harmful or disruptive effect

An applicant/recipient is exempt where for some reason the social worker thinks it would be very emotionally traumatic for the applicant/recipient to seek child support. This includes cases of rape or incest.

Policy reference: FA Guide 3.1.5.100 Role of the AILO & Social Worker

Trauma associated with proving paternity

A social worker may consider that it would be emotionally traumatic for an applicant/recipient to pursue proof of parentage in cases where the parent has not:

• put his or her name on the birth certificate, or
• acknowledged that he or she is the parent of the child.

Policy reference: FA Guide 3.1.5.100 Role of the AILO & Social Worker

The other parent is unknown

If the applicant/recipient states that the other parent of the child is unknown, a full copy of the birth certificate or adoption papers and FTB claim should be sighted before the case is referred to the social worker. If the applicant/recipient knows who the other parent is and the grounds for presumption of parentage are not met, the applicant/recipient must take legal action to seek proof.

If a female applicant/recipient claims not to know who the father of the child is, it may be because they may be afraid of violence or have other good grounds for exemption. The applicant/recipient must be referred to a social worker. If the social worker is satisfied that the applicant/recipient does not know the identity of the father, an exemption may be given.

Policy reference: FA Guide 3.1.6.10 Proof of Parentage

Unsuccessfully tried to prove paternity

An applicant/recipient is exempt where:

• a court has said the person is not the parent,
• Legal Aid will not fund the paternity case, or
• the parent's whereabouts remain unknown and the payee has taken reasonable steps to locate the payer.

If proof of exemption is not provided and the applicant/recipient is reluctant to take legal action, they should then be referred to a social worker. If a social worker considers that it would be very emotionally traumatic for the applicant/recipient, to take court action and the situation is likely to be of a temporary nature, then a temporary exemption may be given.

Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews

Conception through AIP

If a child was conceived through AIP, an exemption can be granted if, at the time of artificial insemination, the mother was:

• not married, or
• in a de facto relationship with a person of the same sex, or
• married, but underwent the procedure without the consent of her partner.

Example: Sarah was a member of a same sex couple when she was artificially inseminated. The Family Law Court holds that a child conceived in these circumstances does not have another parent, even if the sperm donor is identified on the birth certificate. Sarah can be exempted from the requirement to take reasonable action for maintenance.

The applicant/recipient should be referred to a social worker for an assessment of their circumstances. Verification that conception occurred through AIP should be obtained. In instances of self-administered AIP, verification can be obtained through a social worker interview with the mother and any appropriate third party.

Parentage of child conceived through AIP

The following table shows how the parentage of a child conceived through AIP should be determined.

Note: This is for child support purposes only.

Example 1: A married couple have conceived a child through AIP where the ovum and the sperm were donated. The birth mother and her partner are the parents of the child. Both parents are named on the child's birth certificate. If the couple separate, either parent is potentially liable for child support.

Example 2. A woman conceives a child through AIP without her partner's consent. The woman is the birth mother of the child, but the child is deemed not to have another parent. Neither the partner nor the sperm donor is liable for child support for the child.

The applicant/recipient should be referred to the social worker for a recommendation on whether they should be exempted from taking reasonable action if the child was conceived through AIP.

Cultural considerations

Particular care should be given to an applicant/recipient's cultural background. There are also wide differences in attitudes to marriage, and the roles of men and women among different ethnic groups, and these factors should be taken into account as they affect individual cases. An assessment of cultural considerations may indicate that maintenance action would not be successful and might cause hardship to the applicant/recipient and/or their community.

If the social worker considers that pursuing child support would be unsuccessful or cause hardship to the applicant/recipient and/or their community, an exemption may be granted.

Policy reference: FA Guide 3.1.5.100 Role of the AILO & Social Worker

Cultural considerations - Aboriginal & Torres Strait Islander applicants/recipients

In some situations applicants/recipients may refuse or be reluctant to take action to receive child support because of their cultural beliefs. Aboriginal or Torres Strait Islander applicants/recipients should generally be referred to an AILO, rather than a social worker, for a recommendation about exemption. If it is deemed inappropriate for an AILO to be involved in a particular case, then it may be appropriate to involve the social worker.

Situations where it may be culturally inappropriate for the applicant/recipient to take child support action include:

• where the child is born as a result of a prohibited relationship involving wrong skin or clan groupings,
• situations involving polygamous marriages,
• where extended family responsibilities require the family to share in the care of the child and maintenance action would cause undue disruption to these arrangements, and
• where action to obtain child support might cause hardship to the applicant/recipient and/or the community.

Example: It would be inappropriate for an applicant/recipient to take maintenance action when they are living in a small remote community and requiring them to take such action would result in them being ostracised by the community. The recommendation to the delegate should outline the full impact and ramifications of taking action for the applicant/recipient and the community.

Exemptions for Aboriginal or Torres Strait Islander applicants/recipients on the basis of fear of violence or the identity of the other parent is unknown should still be referred to the social worker as the social worker still has primary responsibility for these cases. However, it is recognised that the AILO can provide valuable assistance to both the applicant/recipient and the social worker in obtaining the necessary information to help decide these cases. The assessment of these cases should be undertaken jointly by the AILO and the social worker. In these cases it is appropriate for a joint interview involving both the AILO and the social worker.

Policy reference: FA Guide 3.1.5.100 Role of the AILO & Social Worker

Other exceptional circumstances

There may be other situations where the social worker considers that it is inappropriate for the applicant/recipient to take maintenance action. If the social worker considers that the applicant/recipient should be exempt due to exceptional circumstances, policy advice should be sought from the local policy unit.

Example: It may be appropriate to grant an exemption where:

• the payer has threatened violence against other people connected with the applicant/recipient including friends and relatives not of their immediate family.

Backdating of exemption

In certain circumstances, backdating of an exemption in relation to a past period claim may be undertaken by a social worker. For this to occur, the social worker will undertake a professional assessment that the circumstances warranting the granting of an exemption at the time of claim also existed for the duration of the time covered by the past period claim.

Example: Fiona lodges an instalment claim on 10 October, and a past period claim for the period 1 August to 9 October. Fiona applies for an exemption from maintenance action. During the assessment with the social worker she reports she separated due to domestic violence and produces a copy of an apprehended violence order (AVO). She indicates she fears seeking maintenance due to further violence. The social worker determines that the current circumstances in regards to violence existed at 1 August and the exemption is backdated to that date.

Review of exemption

The customer service adviser determines the types of review required at the end of the review period. The review does not necessarily have to take the form of a referral to Legal Aid, but will depend on whether the recipient's circumstances have changed.

Example: The review may consist of a telephone call to the recipient to confirm that their circumstances have not changed.

If the customer service adviser is unsure as to what form the review should take, they should discuss the matter with the social worker and/or the child support unit.

Reasons exemption from maintenance action should not be granted

Exemptions should not be made for the following reasons:

• the applicant/recipient never lived with the payer, and/or
• the applicant/recipient does not want any involvement with the payer.

Explanation: If either of these reasons is given, a social worker referral should be made. In many cases one or both of these reasons may be given when the underlying concern is a fear of violence or other acceptable justification for not taking action.

Policy reference: FA Guide 3.1.5.90 Maintenance Action Test Reviews, 3.1.5.100 Role of the AILO & Social Worker

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Last reviewed: 1 July 2009