DEPARTURE FROM CHILD SUPPORT ASSESSMENT – LEGAL PRINCIPLES
- The parents of a child have the primary duty to maintain that child and that duty has priority over all commitments of the parent other than commitments necessary to enable the parent to support themselves.
- Under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), where there is a child support assessment in force, a child support departure application can be dealt with by a court if there are already other proceedings before the court and the court is satisfied that it would be in the interests of the parties to consider whether a child support departure order should be made for a child in the special circumstances of the case.
- The application is required to be served upon the liable parent and the Child Support Registrar.
- An application for a departure order must establish three things:
- That in the special circumstances of the case there is a ground for departure;
- That it is just and equitable to make a departure order; and
- That a departure order would be otherwise proper.
- Circumstances will be ‘special’ if there are facts peculiar to this case that set it apart from other cases.
- When assessing whether a person’s earning capacity is greater than their income, the court must be satisfied of a number of matters set out in subs 117 (7B) of the Assessment Act including that the person has reduced their hours of employment or changed their occupation or working pattern and that decision is not justified on the basis of the parent’s caring responsibilities or state of health and the person has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support.
- In determining whether it would be just and equitable to make a child support departure order the Court must have regard to the matters set out in s 117(4) of the Assessment Act.
- In determining whether it would be otherwise proper to make a particular child support departure order the Court must have regard to the matters set out in s 117(5) of the Assessment Act.
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