For separated parents, the need to contact the Child Support Agency (CSA) regarding child maintenance payments is inevitable if you cannot reach an agreement between each other. The CSA is the administrative body that assists in making assessments of child maintenance payments on behalf of parents. The parents may contest these assessments by requesting for a departure order at the CSA. There are also further review processes available through the Administrative Appeals Tribunal, the Family Court, or the Federal Magistrates Court. This article will explain the legislative framework surrounding departure orders as contained in the Child Support (Assessment) Act 1989 (‘the Act’) and the duty to maintain the child.

Section 117 of the Act

This section of the Act sets out the test that an administrative body or court will use to decide whether a departure order is necessary.

Firstly, the Act states that a departure order is only possible in “special circumstances”.

Secondly, the Act also requires that the child maintenance assessment has led to an inequitable level of financial support from the parent who is making the child maintenance payments. This inequity can be due to the “income, property and financial resources” of either parent.

For example, inequity could arise because the parent who receives child maintenance payments has not declared a significant pay rise from their employer.

Income, Property and Financial Resources

In determining whether a “special circumstance” has arisen, the Act specifically disregards the “income, property and financial resources” of persons who do not have a duty to maintain the child.

The courts have discussed this issue in the following cases:

SBT & CMT [2005] FMCAfam257 

The court needed to decide whether payments from a mother’s parents towards her existing loan would be considered a financial resource and/or income.

The court stated that the mother’s parents had no liability to support the mother’s children, emphasising that third parties (such as grandparents) have no legal duty to maintain the child.

Babbit & Babbit [2011] FamCAFC 151

The father responsible for making child maintenance payments stated that the court should not take into account his new partner’s financial resources.

The court decided that it will not take into account the income, property and financial resource of a person who does not have a duty to maintain the child. These individuals included partners and step-partners.

However, the court disagreed with the father in the matter and considered the new partner’s financial resources. This disagreement was because the new partner was, in essence, holding the financial resources in trust for the father’s benefit.

Who has the Duty to Maintain the Child?

The two cases above indicate the court’s general reluctance to require other parties, including grandparents and step-parents to have a duty to maintain the child – the duty to maintain the child should lie with the parents. It is important to note that special circumstances do exist, and legal advice should be obtained if you or the other parent are involved with departure order proceedings either at the CSA or the courts.

If you have any further questions, get in touch with our family lawyers on 1300 544 755.

Kristine Biason

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