The Child Support (Assessment) Act 1989 (Cth) provides that parents have the primary duty to support their children and provide for parents to have an administrative assessment mathematically created regarding child support payments. But what if you do not agree with that assessment?
Grounds to vary/depart from an assessment
In the absence of error in the calculations of the Child Support Assessment or agreement from the parent seeking child support, you can seek that there be a departure from the usual assessment due to special circumstances. Those special circumstances are:
Ground 1 – High costs in enabling a parent to spend time with, or communicate with, a child
The Act provides that costs are considered high if the parent’s costs to spend time with or communicate with the child are greater than 5% of their adjusted taxable income for the period. That parent must be spending at least 1 night a fortnight with the child. Your adjusted taxable income will be stated within the assessment.
Ground 2 – The special needs of the child
This has been held by the Courts to include things such as unusual medical expenditure, facilities for a child with a disability, or special needs in relation to education.
Ground 3 – High costs of caring for, educating, or training the child in the manner expected by the parents
This ground tends to be relevant in relation to private school fees. The Courts have held that generally a parent should not be obliged to contribute towards private school fees unless they have consented to do so. However, if there is clear evidence that the child would derive a benefit from attending a private school it may be appropriate for a non-consenting parent to contribute.
Ground 4 – Income of the child
While it is increasingly uncommon, a child that is earning an income is expected to contribute to their own maintenance. However, in cases where the child is earning a small income (part-time work or pocket money), it would be rare for a Court to expect the child to contribute to their own maintenance.
Ground 5 – Money, goods or property received by the child, the payee or a third person
Where separated parents have completed their property settlement and as part of that settlement a specific property adjustment was made in lieu of child support, an adjustment to the assessment may be necessary.
Ground 6 – High costs of childcare
This ground has a number of conditions attached to it. Firstly, the costs must be incurred by a parent or non-parent carer; secondly, the child must be less than 12 years of age; and thirdly, are greater than 5% of their adjusted taxable income for the period. That parent must also be spending at least 1 night a fortnight with the child.
Ground 7 – Necessary commitments of self-support
This is a common ground that payers will rely upon, but the payer will require proper supporting evidence to demonstrate that their capacity pay is reducing because of their commitments to support themselves.
Ground 8 – A parent’s income, property, financial resources, or earning capacity
Taxable income is starting place for considering someone’s capacity to pay child support but the Court has held that it is not the only evidence that can be relied upon. A payer may have recently a large lump-sum payment, arranged their finances to limit their taxable income, or have substantial property interests.
Alternatively, a parent who is to receive child support may have a greater earning capacity. However, to be successful in such an assertion you must demonstrate that:
The parent is either:
- Not working despite ample opportunity to do so;
- Has reduced their weekly hours of work to below full-time work; or
- Changed their occupation, industry, or working pattern.
AND
The parent’s decision about their work arrangements is not justified by either:
- Their caring responsibilities; or
- Their state of health.
AND
The parent has failed to show that the decision about their work arrangements was not substantially motivated by the effect it would have on the child support assessment.
Ground 9 – The duty to maintain any other child or another person
This relates to other children, spouses, or another person that the parent has a duty to maintain.
Ground 10 – Responsibility of the parent to maintain a resident child
This includes any child (whether biologically related or not) that lives with a parent.
Would a change be just & equitable?
This involves a consideration of a number of factors including the needs and costs of the child, the earning capacity of the parents, and what hardship may be caused to either the parents or child.
Would a change be otherwise proper?
This final requirement requires consideration of the duty of the parent to maintain a child and the effect a change would have on the child or parent’s income-tested pension, allowance, or benefit.
Child Support is a very technical and complex aspect of family law. Legal advice is essential before seeking a change in the assessment. If you have a child support dispute please contact our office at (02) 4944 3322 to speak with one of our family law solicitors.
