The initial stage of separating from your partner is often the most difficult phase, especially when there are children involved. The transition from sharing care to being the primary carer often leaves single parents struggling to make ends meet. Child support is designed to alleviate this stress.
A child support assessment is made using one of various formulas, with the appropriate formula being determined by your individual circumstances. However, no two families are the same. We each have different lives, different needs and different circumstances. For this reason, it is sometimes arguable that your unique circumstances justify departing from the usual formula.
The Court will consider making a departure from the ordinary formula when:
- a ground for departure in section 117(2)(a) of the Child Support (Assessment) Act 1989 (‘the Act’) applies; and
- it would be just and equitable or otherwise proper to make the order.
Step 1: Grounds for Departure
There are a number of grounds for departure outlined in section 117(2) of the Act. In summary, these grounds are as follows:
- In the special circumstances of the case, the non-carer parent’s capacity to provide financial support is significantly reduced because of their duty to maintain themselves, another child or any other dependant person.
- In the special circumstances of the case, 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, the child;
- because of special needs of the child;
- because of high child care costs in relation to the child; or
- because the child is being cared for, educated or trained in the manner that was expected by his or her parents.
- In the special circumstances of the case, application of the formula would be unjust and inequitable because of the income, earning capacity, property and financial resources of either of the children or the parents.
The common denominator in all of the grounds is the phrase ‘in the special circumstances of the case’. So, what does this mean?
When discussing the meaning of this phrase, the Family Court in Gyselman & Gyselman (1992) 15 Fam LR 219 stated, “Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.”
There is no one definition of what exactly a ‘special circumstance’ is, and this is intentional. The term is broad and flexible enough to cover a wide variety of circumstances. That being said, the following are examples of circumstances which have been held by the Court to be ‘special’:
- In L and L  FMCAfam 223, the liable parent was ordered to contribute to private school fees for a child with special needs. The Court held that the ‘special circumstances’ in this case were the child’s need for medical care, which was not covered by medical insurance, and her need to be encouraged to attend school. As the child was already enrolled in a private school, the non-liable parent was ordered to contribute to the fees.
- In Bassingthwaighte and Leane (1993) 16 Fam LR 918, the father was an airline pilot who owned a farm, which operated at a loss. While the father’s taxable income was significantly reduced, the actual income he received was not. The Court allowed a departure from the usual assessment, in that his income without the reductions for tax losses was considered for the purpose of the assessment.
- In Dwyer and McGuire (1993) 17 Fam LR 42, the father owned a number of farming properties with his family, several of which were in the father’s sole name. The properties were unencumbered and the farming business had little debt. The father’s substantial assets established a ground for departure, and the Court ordered that the assessment would take these assets into account.
Step 2: Just and Equitable
The Court may only make a particular departure order if it is satisfied that doing so would be just and equitable to the child and both parents. Here, the Court looks at the overarching circumstances, having regard to:
- the nature and duty of a parent to maintain a child;
- the proper needs of the children;
- the income, earning capacity, property and financial resources of the child and each of the parents;
- the commitments of each parent that are necessary to enable the parent to support themselves or any other child or dependant;
- the direct and indirect costs incurred by the carer entitled to child support in providing that care; and
- any hardship that would be caused to the child and the parents if the order was either made or refused.
How can a lawyer help?
A lawyer with experience will be able to provide you with the knowledge and assistance you need to determine the grounds of departure which likely apply, whether your circumstances are special, and what kinds of departure order(s) would be just and equitable in your circumstances.
Importantly, a lawyer can also help you gather the evidence you need to support your case through different processes, such as disclosure. This is where both sides to the proceedings have an obligation to provide to the other party all relevant documents and material in their possession.
At Carter Dickens Lawyer, we have the experience and knowledge to help you navigate this complicated area of law to ensure that you put the best case forward, so please do not hesitate to contact our office for more information.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.