Child Support Departure Orders – What Are They?

In Australia, Services Australia’s Child Support Agency calculates child support using a formula to determine the amount one parent pays to the other after separation to assist a parent financially to raise the children of the parties.

While the formula aims to be fair, it may not account for every family’s circumstances. In those cases, a Departure Order may provide a more appropriate outcome providing you with certainty.

How Do You Qualify For A Departure Order?

A Departure Order may be made either by consent or, following an application to the Federal Circuit and Family Court of Australia (‘the Court’) while satisfying the provisions of s117 of the Child Support Assessment Act 1989 (Cth)(“the Act”). Ultimately, such an order should be just and proper for the Court to grant.

Before making a Departure Order, in relation to a child in the special circumstances of the case, the Court must satisfy itself of three (3) things;

1. that one or more grounds for departure set out in subsection (2) exists or exist; and
2. that it would be just and equitable as regards the child, the party entitled to child support, and the liable parent or payer; and
3. it is otherwise proper to make such and order under this Division of the Act.

The Court has a discretion when finding if a proposed order is “just and equitable” and whether it would be “otherwise proper” to grant it.

As an applicant for a Departure Order is it vital to demonstrate to the Court why the formula assessment in your case leads to an unjust or inappropriate result.

Grounds For Departure Orders

One must satisfy certain grounds which include, but are not limited to:

“S117 (2) (a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

• the duty of the parent to maintain any other child or person; or
• special needs of any other child or another person that the parent has a duty to maintain; or
• commitments of the parent necessary to enable the parent to support:

  (A) himself or herself; or

  (B) any other child or another person that the parent has a duty to maintain; or

  high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain.

  (b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

  (i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or

  (ii) because of special needs of the child; or

  (iii) because of high child care costs in relation to the child; or

  (iv) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;

  (c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

  (i) because of the income, earning capacity, property and financial resources of the child; or

  (ii) because of the income, property and financial resources of either parent; or

  (iii) because of the earning capacity of either parent; or

  (iv) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

  High costs involved in enabling parent to care for a child; and

  High child care cost.”

  How Our Family Lawyers Can Assist You At PCL Lawyers

  1. Early identification of your possible grounds for Departure Order.
  2. Negotiating and settling Departure Orders by consent.
  3. Providing solid legal advice.
  4. Drafting and filing your application for a Departure Order.
  5. Court representation throughout the Departure Order court process.

  Professional Advice to Guide You

  The nature of Child Support is complex and guidance and professional legal advice is a must. If you have a unique family situation where you have concerns about meeting a child or your children’s school, medical or other expenses then please call us for a confidential consultation about your child support situation.

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.