In Australia, parents have a legal responsibility to provide financial support for their children. This obligation exists regardless of whether the parents are biological or adoptive and regardless of their gender or sexuality. Provided certain conditions are satisfied, same-sex couples who have had a child via adoption, surrogacy or artificial conception are considered to be parents in the context of child support arrangements. When a couple with children separates, one member of the couple will generally have primary responsibility for caring for the child. The other parent will typically provide financial assistance to assist with carrying out that responsibility. If parents cannot agree about the amount of child support to be paid, they may apply to the Department of Human Services for an assessment.
A parent can only apply for a child support assessment if they are not living with the other parent of the child as their partner on a genuine domestic basis. The Child Support (Assessment) Act 1989 (Cth) provides a formula to assess the amount of child support payable to a parent. Because both parents are assessed in respect of the costs to the children, this formula is based on the incomes of both parents and the care they each provide for their children.
A non-parent carer can also apply for a child support assessment, provided they are an eligible carer of the child, are not a partner of either parent who is living with that parent on a genuine domestic basis, and they do not have joint care of the child. A non-parent may be an eligible carer irrespective of their sexuality and/or gender if they are either the sole or principal provider of ongoing daily care for the child, have major care of the child or share ongoing or substantial care of the child. If a child was born as the result of a surrogacy arrangement and the court had made an order declaring parentage, that person may also be an eligible carer.
It is important to note that if a non-parent carer providing at least shared care of the child does not satisfy two specific requirements, they are not an eligible carer and therefore cannot seek child support. Firstly, the non-parent carer must be the legal guardian of the child. Secondly, the child’s parent or legal guardian must not be opposed to that person caring for the child. Additionally, a non-parent carer is not eligible to seek child support if it is not unreasonable for the parent or legal guardian to care for the child.
Nicholes Family Lawyers has extensive experience in providing legal advice and litigious representation for LGBTIQA+ parents and caregivers, particularly when it comes to child support.