Child Support and Maintenance Answer Guide PDF

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Child Support and Child Maintenance Answer Guide WHAT TO LOOK FOR:   

Look for facts telling you an assessment has been made against a party to pay a certain amount per month You would be looking at whether there can be a departure If asked to look at whether they can make an application to not pay, look at s 116 – application to court.

Advise the client to apply to the Child Support Agency for an administration assessment. An application can be made at any time by either parent, ongoing, or for a time period up to 18 months before. (s. 98B CSAA);

STATE: The amount of child support in the assessment is determined in accordance with a legislative formula. There are 8 steps within that formula (Section 35 CSAA). Those steps take into account the income of both parents and the extent to which each parent is already meeting the costs of the children. There are key concepts within the formula. They are: a) Child Support Income: Which is a Parent’s adjusted taxable income less a selfsupport amount (s. 41CSAA); b) A Parent’s Income percentage: obtained by dividing one parent’s income against the total of both parent’s income (s. 55B CSAA); c) Costs percentage: deemed by a sub-formula (s55C CSAA). d) Costs of children: determined by a table (schedule 1 CSAA) Party X may argue that this amount seems unfair or unjust or inequitable and may apply for a departure from it. The reasons why there is departure from the administrative process if because it does not take into account all factors – e.g. apply to facts Legislation provides two avenues: – 1) Part 6A Child Support (Assessment) Act deals with the Process (S. 117 deals with the content.) – 2) Departure orders Part 7 Division 4 – judicial orders made by the court. Limited availability and limited appeal rights. Not often used. Likely to apply for assessment under part 6A and to do so, one of the parties must have lodged an application initially, as advised above. [Party X]’s application will be determined by a Senior Case Officer of the Child Support Agency.

Child Support & Maintenance Answer Guide

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The formula for determining a child support assessment has a maximum amount payable, which is determined in each year. The amount calculates the cost of children using a multiple of male total average weekly earnings, and the highest multiple is 2.5 times those earnings. (Sections 55G & Schedule 2 CSAA); A parent is a person who can apply for a child support assessment – Section 23 CSAA. A person who applies for a child support assessment uses the prescribed form supplied by the child support agency – section 29 CSAA.

Change of Assessment Applications – Child Support Agency

Refer to

Preliminaries

above for calc of rate of child

Child support administrative assessment issued in accordance with formula

support

Formula takes into account taxable income of parties Part 5 CSAA applies to determine formula Quote s35 CSAA – 8 steps to be applied

Process Part 6A CSAA sets out the administrative system for administrative departures.

Part 6A CSAA

Can the application be made An application will only be made when an administrative assessment is in force in relation to a child where parent or carer is of the view that, because of special circumstances that exist the administrative assessment of child support should be departed from. The parent or child may make written application to the Registrar.

Parent – s 98B(1)(a) Carer – s 98B(1)(b)

s 98H(1)(a)(i)   

 

The registrar can look to documents accompanying the application The register can, but not required to, conduct an inquiry or investigation into the matter A person is not precluded from subsequently making another application in respect of the previous assessment Rules of evidence do not apply Application is commenced by lodging a change

Child Support & Maintenance Answer Guide

s 98H(1)(b) s 98J

s 98C(1)(a) Page 2

State:

of assessment in special circumstances application  If Child Support Registrar satisfied o 1 or more grounds for departure exist, o That it would be just and equitable and o otherwise proper …then Registrar can make determination.

s 98C(1)(b) (i) (ii)(A) (ii)(B)

The person making the application is [parent/carer]. An application [should/should not] be able to be made pursuant to [relevant s98B section]. Is a ground for departure from administrative assessment established?

Gyselman v Gyselman

Follow the 3 step departure from administrative assessment 1. Establishing a ground 2. Determining whether just and equitable 3. Must be otherwise proper

s 117(2) CSAA s 117(4) s 117(5)

Element 1: Can there be a departure from the administrative assessments? Is there a ground for departure from an administrative assessment established? STATE: Any application for a departure from an administrative assessment must meet one of the grounds in section 117(2) of the Child Support (Assessment) Act. A court must be satisfied that s98C of Act 1. If one of the grounds for departure exists; and s117(2) 2. Just and equitable as regards the child, the liable parent, and the carer entitled to child support; and s117(4) 3. Otherwise proper. S117(5)

These rules were established in Gyselman v Gyselman. Write which relevant and apply 1. The costs of maintaining a child are significantly affected by high costs of enabling a parent to spend time with, or communicate with, the child. (2)(i)(ia) 2. The costs of maintaining a child are significantly affected by high costs associated with the child's special needs (2)(i)(ib) 3. The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended. (2)(b(ii) 4. The child support assessment is unfair because of the child's income, earning capacity, property or financial resources. (2)(c)(i)

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5.

The child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child. (2)(c)(ii) 6. The costs of maintaining a child are significantly affected by the high child care costs for the child (and the child is under 12 years of age).(2)(a)(iv) 7. The parent's necessary expenses significantly affect their capacity to support the child. (2)(a)(iii) 8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents (2) (c) (ia) & (ib) 9. The parent's capacity to support the child is significantly affected by: – their duty to maintain another child or person, – their necessary expenses in supporting another child or person they have a duty to maintain, – their high costs of enabling them to spend time with or communicate with, another child or person they have a duty to maintain (2)(a)(i) 10. The parent's responsibility to maintain a resident child significantly reduces their capacity to support the child support child. (2(aa))

Is the proposed amount just and equitable? STATE: When determining whether a proposed amount is just and equitable, the Senior Case Officer must have regard to: - The nature of the duty of a parent to maintain a child. and - The proper needs of the child; and - The income, earning capacity, property and financial resources of the child; and - The income, property and financial resources of each parent who is a party to the proceeding; and - The earning capacity of each parent who is a party to the proceeding; and - The commitments of each parent who is a party to the proceeding that are - Necessary to enable the parent to support:  himself or herself; or  any other child or another person that the person has a duty to maintain; and - The direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and - Any hardship that would be caused to the child; or the carer entitled to child support; or the liable parent, or any other child or another person that the liable parent has a duty to maintain, or any resident child of the parent, by the making of, or the refusal to make, the order.

Whether the amount is ‘otherwise proper’? STATE: There [is/no] evidence of any impact of a change on any entitlement of the child or either parent to any income tested pension or benefit, therefore [is/no] suggestion that the change would not be otherwise proper. OVERALL CONCLUSION: Departure from assessment [will/will not] likely succeed because...

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Special circumstances” in s117(2) of the Assessment Act means party seeking departure must show that case is out of “the ordinary run of cases”. Gyselman & Gyselman (1992) FLC 92-279.

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Application to a Court Step 1: Can [Party X] be able to establish a ground under the Child Support (Assessment) Act? STATE: An application can be made to a Court with jurisdiction for a departure from administrative assessment where one the requirements of s 116 Child Support (Assessment) Act are met, they are: - The Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment: s 116(a)(i) CSAA; or - An objection to the refusal has been lodged: s 116(a)(ii) CSAA - The registrar has disallowed the objection; s 116(1(iii) CSAA - The same circumstances apply as above, but the objections officer has refused to make a determination, or - The same circumstances apply but the SSAT has refused to make a determination, or - There are other pending proceedings before a Court and a Court is satisfied that it would be in the interests of the parties to consider the application.

Step 2: Can [Party X] be able to establish a ground under the Family Law Act? STATE: [Party X] can only go to Court in very limited circumstances. A Court will only be able to deal with periodic support of children where: (a) One of the circumstances under the Family Law Act is established, i.e. i. Maintenance of an ‘adult child’; ii. Otherwise, where the child support agency is unable to issue an i. Administrative assessment (e.g. Where a liable parent is in a non-reciprocating jurisdiction). ii. Step-parent maintenance.

Step 3: Pending Process [pre-requisites to an application] STATE: There are two pre-requisites in order to make the application, they are: - The liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under the Act: s 166(b)(i) CSAA - The court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case: s 166(b)(ii) CSAA OVERALL CONCLUSION: [Party X] [will/will not] be successful in applying to the Court because...

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Applications for Paternity applications [Exam tip: Look at this when being asked to pay for a child that isn’t the liable parent’s] STATE: Disputes arising out of circumstances in relation to the liable parent or payer parent can be resolved by declarations of paternity. There are two ways which issues arising from paternity of child may be rectified: i. By the Child Support Registrar, and ii. By way of an application to a Court exercising jurisdiction under the Child Support (Assessment) Act.

Option 1: Application to the Court Step 1: Applications can be made to Court, subject to the time limits, without the need for an objection to the child support agency. An application may be granted by the registrar under s 106A(2), where the person assessed in respect of the costs of the child is a parent of the child: s 106A(2)(b). If the child is not the parent’s, or if it’s uncertain: Step 2: After the registrar accepts an application for administrative assessment of child support, a declaration can be made to a court that a person should not be assessed in respect of costs of a child, because the person is not a parent of the child: s 107(1) Step 3 Time Limits: A person must file an application for a declaration under subsection 106A (2) or 107 (1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act. However, court has power to extend this time.

Step 4: Pending Process [pre-requisites to an application] STATE: Before any application can be made to a Court for a declaration that a person is, or is not, entitled to an Administrative assessment, there must be: (a) An Application to the Child Support Registrar for an assessment of child support, and; (b) A Notice under ss. 33 or 34 Child Support (Assessment) Act – which is a notice confirming that the application has been accepted or rejected.

Step 5: Determination of parentage by the child support Registrar STATE: When considering whether or not a person is, or is not, a parent of a child, the Registrar must make such a determination in accordance with s 29 Child Support (Assessment) Act, which states: 2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied: (a) that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or (b) that the person's name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or (c) that, whether before or after the commencement of this Act, a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction has: (i) found expressly that the person is a parent of the child; or (ii) made a finding that it could not have made unless the person was a parent of the child; Child Support & Maintenance Answer Guide

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and the finding has not been altered, set aside or reversed; or (d) that, whether before or after the commencement of this Act, the person has, under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that the person is a parent of the child, and the instrument has not been annulled or otherwise set aside; or (e) that the child has been adopted by the person; or (f) that the person is a man and the child was born to a woman within 44 weeks after a purported marriage to which the man and the woman were parties was annulled; or (g) that the person is a man who was a party to a marriage to a woman and: (i) the parties to the marriage separated; and (ii) after the parties to the marriage separated, they resumed cohabitation on one occasion; and (iii) within 3 months after the resumption of cohabitation, they again separated and afterwards lived separately and apart; and (iv) the child was born to the woman within 44 weeks after the period of cohabitation but after the dissolution of the marriage; or (h) that the person is a man and: (i) the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and (ii) no marriage between the man and the woman subsisted during any part of the period of cohabitation; or Step 6: Will the Court be able to exercise their powers in applications under ss 106A and 107? STATE: The court may make an order requiring a `parentage testing procedure' to be carried out to help determine the child's parentage: s 69W(1). The court can make an order for a parentage testing procedure at the request of a party to the proceedings, or on its own initiative: s 69W(2). However, there must be some evidence to enable a Court to find that there is, in effect, a ‘case to answer’ concerning parenting. Application: On the facts, there [is/is no] case to answer because...

Step 6.1: Refusal to undergo a test? STATE: As a general rule, there will be an inference as to the state of mind of the person who has contravened the order made under s 66W(1) and another as to the question whether he or she is the parent of the child concerned: G v H

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Application for repayment of child support STATE: Where the payer of the amount is not liable to pay this amount then they may recover the amount in a court that has jurisdiction to hear the matter: s 143 CSSA; DPP v AJL i. The state of knowledge and conduct of the parties. ii. Any acquiescence or delay on the part of the payer, once aware of relevant information (which may be as little as circumstances giving rise to reasonable doubts as to paternity), would generally be a significant factor against an order for repayment. iii. The relationship of the payer with the child in particular the extent to which the payer has taken on the role of a parent and provider for the child. Write if relevant:  Evidence as to the circumstances of the biological father. The biological father's relationship with the child and capacity to provide support will always be relevant. However, its absence will not, of itself, be determinative.  The financial circumstances of the parties.  In many cases it will also be relevant that the mother has received an adjustment in her favour pursuant to s 75(2) in the property settlement on the basis that the child is a biological child of the payer. Circumstances Where Family Law Act Applies   

Children over 18 Step-parents Where a child support assessment cannot be done (payer parent non-resident in Australia and reciprocating jurisdiction)

Parent’s duty  Parents have a duty to maintain and support their children: s 3 Child Support (Assessment) Act o Priority over all commitments of the parent other than commitments necessary to enable the parent to support themselves or any other child that parent has a duty to maintain o Not affected by –  Duty of any other person to maintain the child  Entitlement of the child or another person to an income tested pension, allowance or benefit  Parent – s 5Child Support (Assessment) Act o Includes adoptive parent and a person who is regarded as a parent under the Family Law Act Child bearing expenses A father is labile to contribute to the maintenance and expenses of a mother in relation to the bith of the child including reasonable medical expenses: s67B  Only applied to unmarried parents

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Adult children  education  Court only allowed to make provisions for an adult child for maintenance in order to allow the child to complete their education: s 66(1)(a)  What is reasonable in regards to paying educational expenses for adult children: Cosgrove o whether the ``nexus'' of dependence between the child and parents had ceased and the application amounts to a ``resurrection'' of that dependence; o the period between initial cessation of dependence (if any) and the application; o whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself; o other assistance, benefits or education which the child has received; o the ability of the child to complete the course in question; o the likelihood of the child completing the course in question; o the financial capacity of the child to maintain himself/herself to the completion of the ``education''; o the financial circumstances of those persons responsible for support of the child (generally the parents); o the filial relationship between the child and the person from whom maintenance is sought. Step-Parents  step-parent...