The ABCs of Child Support

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.