Maintenance Act 1965

Spouses: Both husbands and wives may be ordered to maintain the other, and either may be the applicant (complainant) for an order. The Act uses traditional terminology of husband and wife but the orders are available against both.

Parents of children: Both married parents and unmarried parents (fathers and mothers) are within the Act's jurisdiction for child maintenance orders. The Act provides specific jurisdiction for orders against unmarried fathers for preliminary birth expenses and funeral expenses.

Employers: Subject to attachment of earnings orders and attachment notices. Once served with an attachment notice, an employer must make the specified deductions from the defendant's wages and is liable for failure to comply. The Crown in right of the State, ministers, and statutory authorities are all within the definition of employer.

Defendants subject to maintenance orders: Must comply with orders and may be examined about their means. Non-compliance can result in registration of arrears as a civil judgment, attachment of earnings, and in some circumstances, contempt proceedings.

Interstate parties: Persons resident in other Australian states may have maintenance orders registered in Queensland and enforced by Queensland courts. Conversely, Queensland orders may be registered and enforced interstate.

Overseas parties: Persons with connections to reciprocating countries have access to the overseas maintenance regime in Division 3 of Part 4.

Collector: An administrative officer who collects and transmits interstate maintenance payments on behalf of parties.

Payment under maintenance orders: The defendant must pay the amounts specified in any order as and when they fall due. Failure to pay creates registrable arrears and attracts enforcement consequences.

Attendance at examinations (s 450k context, s 115A area): A defendant may be directed to attend before the court to be examined about their means and ability to pay. Failure to attend when directed is a contempt.

Furnishing statements: Defendants and employers may be required to furnish statements about the defendant's earnings, employment, and indebtedness. Documents purporting to be such statements are evidence of the matters stated.

Employers: attachment obligations (Part 3, Division 2): Once served with an attachment notice, an employer must deduct the specified amounts from the defendant's earnings and pay them as required. The employer must not knowingly discharge, dismiss, or prejudice the defendant's employment by reason of the attachment order, except in limited circumstances.

Persons aware of defendant's address: Provisions in the Act create obligations on persons who know the defendant's address to disclose it where the court requires information to serve process.

Preliminary and ex parte orders: The complainant must give notice of intention to apply for a preliminary maintenance order or comply with the procedural requirements for ex parte applications.

Court: making orders (s 8): Wide jurisdiction to make maintenance orders in any of the categories listed in section 8. The court may also make nominal, preliminary, and interim orders.

Court: factors for amount (s 9): Must have regard to the accustomed condition of life of the payee, and the means, earning capacity, and ability to pay of the defendant. May disregard earnings from an occupation taken up by the payee solely because they would otherwise be without support. May disregard the payee's earning capacity in similar circumstances.

Court: variation, suspension, and discharge (s 31): On application by a party, a court may discharge, suspend, or vary a maintenance order where satisfied that: the original order was obtained by fraud or based on a marriage that did not exist; new facts or circumstances have arisen; or other specified grounds.

Court: attachment of earnings orders (Part 3, Division 2): Where a maintenance order is unsatisfied, the court may make an attachment of earnings order directing an employer to deduct and pay specified amounts from the defendant's earnings, subject to a protected earnings rate.

Court: registration of arrears as civil judgment (s 45): Where arrears of $100 or more are unpaid, the court may grant a certificate of the amount due. The person entitled may file the certificate in the appropriate civil court registry, and the amount becomes recoverable as if it were a civil judgment debt.

Court: examination of defendant (s 115A area): The court may direct the defendant to attend, to furnish statements about their earnings and employers, and may direct employers and creditors to furnish information.

Magistrate: ex parte preliminary orders (s 23): A magistrate or two justices may make an ex parte preliminary maintenance order for a child on application without the defendant's participation, where urgency or other circumstances justify the ex parte approach.

Collector (interstate, Part 4): Has power to receive and transmit payments, to register orders, and to take enforcement steps on behalf of parties in other jurisdictions.

Non-payment of maintenance: Arrears may be registered as a civil judgment (s 45). An employer may be served with an attachment of earnings order. The court may examine the defendant about their means.

Employer non-compliance with attachment order: An employer who fails to make required deductions or payments, or who knowingly prejudices the defendant's employment by reason of the attachment order, is subject to penalty.

Proof of ability to pay: In proceedings for non-compliance with a maintenance order, proof that the defendant was for a time able to pay and neglected to do so is proof that the defendant neglected without lawful excuse.

Prosecution for failure to pay: The Act contains offences relating to failure to maintain (including criminal offences for persons who desert their spouse or children and leave them without means of support).

Appeals (s 134): The Justices Act 1886, Part 9 provisions relating to appeals apply to proceedings under this Act. The appeal court may stay an order pending appeal and may make a temporary order.

No imprisonment for debt: The attachment of earnings regime reflects the modern approach that maintenance arrears are recovered through garnishment of wages rather than imprisonment.

Making a maintenance order:

1. Complainant files complaint with the Magistrates Court for the place where the defendant is resident or has their place of business.
2. Summons served on defendant.
3. Hearing at which the court considers the accustomed standard of living, means, and earning capacity of the parties.
4. Court may make a consent order, a contested order, or a nominal order.

Enforcing a maintenance order:

1. Payments fall due as specified in the order.
2. On non-payment, complainant may apply ex parte for a certificate of arrears (arrears must be at least $100) (s 45).
3. Certificate may be filed in the relevant civil court registry and enforced as a civil judgment.
4. Alternatively, complainant may apply for an attachment of earnings order (s 49). Court considers whether the defendant has earnings and the appropriate deduction and protected earnings rates.
5. Attachment notice served on employer. Employer must make deductions from specified pay period.

Varying, suspending, or discharging an order (s 31):

1. Application made by a party to the court for the place where payments are required.
2. Court considers whether any of the specified grounds for variation, suspension, or discharge are made out.
3. Court makes the order it considers appropriate.

Interstate registration (Part 4, Division 2):

1. Maintenance order made in another Australian state.
2. Registered with the Magistrates Court in Queensland.
3. Treated as a Queensland order for enforcement purposes.
4. The Queensland collector facilitates collection and transmission.

Overseas registration (Part 4, Division 3):

1. Order made in a reciprocating country.
2. Confirmed by a Queensland court (or registered).
3. Enforceable in Queensland as a local order.

Family Law Act 1975 (Cth): The most significant interaction. The Family Law Act has largely displaced the Maintenance Act 1965 for married couples and children of marriages. Commonwealth courts now have exclusive jurisdiction over maintenance of parties to a marriage and their children under the Family Law Act. The Queensland Act continues to apply to de facto couples not captured by the federal regime, to the enforcement of pre-existing Queensland orders, and to situations outside Commonwealth family law jurisdiction.

Child Support (Assessment) Act 1989 (Cth): The administrative child support scheme has further displaced the Queensland Act for child maintenance, with formula-based assessments through the Child Support Agency for children where the Commonwealth scheme applies.

Criminal Code 1899 (Qld) (s 286 context): Section 286 of the Criminal Code imposes a duty on persons who have the care of a child under 16 to provide necessities of life. As noted in Fitch v Migration Review Tribunal [2004] FCA 1673, Queensland law (including the Maintenance Act 1965) addresses parental maintenance obligations including through criminal sanction.

Justices Act 1886 (Qld): Appeals under the Act follow the Justices Act appeal procedures (s 134).

Interstate maintenance statutes: Part 4, Division 2 creates an integrated interstate maintenance system under which other Australian states' maintenance orders can be registered in Queensland and Queensland orders can be registered and enforced interstate.

Reciprocating countries: Designated overseas countries whose maintenance orders can be confirmed and enforced in Queensland under Part 4, Division 3. The list of reciprocating countries is set by regulation.

Family Law Act displacement: Many maintenance obligations that would previously have been addressed under this Act are now governed by the Family Law Act 1975 (Cth). Practitioners must first assess whether the Commonwealth regime applies before seeking relief under the Queensland Act. For parties to a marriage, the Family Law Act is the primary legislation.

Attachment of earnings protected earnings rate: When making an attachment of earnings order, the court specifies a normal deduction rate and a protected earnings rate. The protected earnings rate is the minimum income the defendant must retain after deductions. Employers must not make deductions that would reduce take-home pay below the protected rate. This may mean a week's deduction is less than the normal rate if the defendant's earnings are below a threshold.

Employer obligations are statutory, not contractual: Once an attachment notice is served, the employer's obligation to deduct and pay arises from the statute, not from any agreement with the defendant. The employer cannot ignore a properly served attachment notice by claiming the defendant has not consented.

Arrears minimum for civil judgment registration (s 45): The minimum arrears amount for registration as a civil judgment is $100. Smaller amounts cannot be registered, though they remain recoverable by other means.

Interstate orders are confirmed, not just accepted: Orders from another Australian state do not automatically become enforceable in Queensland. The registration or confirmation process under Part 4 is necessary before a Queensland court can enforce them.

The nominal order preserves the payee's position: A nominal order for a minimal amount does not prevent the payee from seeking a variation later when circumstances change (for example, when the defendant's financial position improves). The nominal order avoids the need to make a fresh application.

Spouse maintenance on separation: A husband separates from his wife who has no independent income. The wife files a complaint with the Magistrates Court. The court considers both parties' means, earning capacity, and accustomed standard of living, and makes a periodic maintenance order specifying weekly payments. The order is immediately enforceable.

Attachment of earnings: The husband falls into arrears. The wife applies for an attachment of earnings order. The court makes the order specifying a normal deduction rate of $300 per week and a protected earnings rate of $500 per week. The attachment notice is served on the husband's employer. Each week, the employer deducts $300 (subject to the protected earnings floor) and remits it to the court.

Unmarried father's obligation: An unmarried father is ordered under section 8 to pay maintenance for his child. He moves interstate. The mother registers the Queensland order in the other state under the interstate provisions. The other state's collector receives payments on behalf of the mother and transmits them through the Queensland collector.

Overseas reciprocal enforcement: A parent in a reciprocating country has obtained a maintenance order for a child against a parent now residing in Queensland. The overseas order is sent through the reciprocal enforcement channels, confirmed by a Queensland court, and is then enforceable in Queensland as a local order. The Queensland collector manages collection and remittance overseas.

Variation on changed circumstances: A maintenance order was made when the defendant had high earnings. The defendant loses their job and can no longer pay the full amount. The defendant applies to the court under section 31 on the basis of new facts and circumstances (the job loss), and the court may suspend or vary the order temporarily or permanently.