Child support is a payment made by one parent to the other to assist him or her to meet the expenses of raising their child/children. The legislation provides that parents of a child/children have a duty to maintain the child/children. This applies even if one parent is not presently spending time with the child/children or is spending less time than he or she would like. It is therefore common that one parent will seek the payment of child support from the other upon their separation.

This article runs you through the central aspects of child support - from usual procedure, to departure orders, to parental requirements.

Usual procedure

Parents can apply to the Department of Human Services ('Child Support Agency' or 'CSA') to make an assessment for child support. The assessment depends on a number of factors; in particular both parents' income, the ages of the child/children, and the number of nights the child/children spend with each of them.

A parent might consider the assessment to be insufficient in a number of circumstances. If the parents agree to pay a different amount of child support, they can enter into a Limited or Binding Child Support Agreement. It is also open to either parent to object to the assessment by applying to the CSA, or, if they object to the decision subsequently made by the CSA, to apply to the Administrative Appeals Tribunal.

There are limited circumstances in which parents can ask a Family Law Court ('the Court') to determine their child support dispute. This article focuses on situations where parents seek orders for departure from an assessment in special circumstances. The Court may exercise its jurisdiction to deal with an application for a departure order when parents already have other proceedings in the Court.

Departure orders

When making departure orders, the Court will need to consider if

  1. one or more grounds of departure have been established;
  2. whether it would be "just and equitable" to make the order; and
  3. whether it would be "otherwise proper" to make the order.

There are a number of grounds of departure from an assessment of child support by the CSA if either parent is unhappy with same. The grounds of departure include, amongst other things, where:

  • the costs of maintaining the child are significantly affected because of high costs involved in enabling a parent to spend time with or communicate with his or her child/children, for example, where the parents live far away from each other
  • the costs of maintaining the child are significantly affected because of special needs of the child/children, for example, due to a hearing impairment or orthodontic work
  • the costs of maintaining the child are significantly affected because the child/children is being cared for, educated or trained in the manner that was expected by his or her parents, for example, where the parents agree, before or after separation, that the child/children should attend private schools. If the child/children were enrolled by both parents in a private school it would clearly show that this was their expectation.
  • the assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child/children because of the income or earning capacity of either parent, for example, an assessment may not take into account the actual income of the paying parent if he or she earns in excess of the CSA's income "cap" ($177,073 in 2015).

When establishing the grounds of departure, the facts of the case must also establish that there are 'special circumstances', that is, that there is something which is special or out of the ordinary which gives ries to those grounds.

What is required?

It is therefore important for parties to provide their lawyers with a list of all the expenses of the child/children. Detailed information including but not limited to invoices and receipts for travel costs, for medical, dental and other health related treatments, for school fees and school related expenses will be helpful. Parties should also include invoices and receipts for food, entertainment, sporting related expenses, and so on.

Copies of any communications between the parties as to their intentions for financial support of the child/children and enrolment forms for the child/children into private schools may also be helpful.

When listing the expenses of the child/children, parents need to ensure they are not conflating the costs of the child/children with their own costs. For instance, previous cases have seen parents claim alcohol expenses for their underage children. Parents also need to ensure that purchase of items such as spas, barbecues or luxury bed linen are appropriately allocated.

Parents should also provide evidence of their (and, as much as reasonably possible, the other parent's) income, earning capacity, property and financial resources.

Why is this important?

It is important that parents are aware of the circumstances in which they can obtain a child support departure order or circumstances in which they can challenge same. For example, in the case of Stirling & Dobson, it was contended on behalf of the mother that in addition to the schooling, supplementary schooling, medical, dental and health expenses for their 3 children, that the average weekly amount required for their care were $2,518. The Court reviewed these expenses and found a more appropriate allowance was $2,207, and further divided this according to what was considered to a reasonable proportion for the father to pay.

The amount of child support received or ordered to be paid can therefore be significant depending on each family's individual circumstances.

Child support is generally payable for the child or each of the children until they turn 18 (if they turn 18 while in full time secondary education, a parent may apply to the CSA for child support to be payable until the last day of school in that year). While it is incumbent for parents to meet their child/children's needs, these needs should be correctly determined.

For more information please contact:

Greg Parker, Partner
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.