What is Child Support?
Child support is a financial commitment for parents in Australia designed to ensure that the financial needs of their children are met. However, sometimes the standard formula for child support does not take into account all the individual circumstances of the family, and in such cases one parent can request a departure from the standard formula.
The calculation of child support in Australia is based on a formula that takes into account the income of both parents and the amount of time the children spend with each parent. The formula takes into account a number of factors, including:
The taxable income of both parents.
The number of children involved.
The percentage of care each parent provides for the children.
The cost of supporting children in the local area.
Once the formula has been applied, the parent having less time with the children (often the parent with the higher income) is required to pay child support to the parent looking after the children (usually the parent with the lower income).
Child support payments can be made through the Child Support Agency (CSA), which is a government body responsible for collecting and distributing child support payments. The CSA can also help parents reach agreement on child support, and can enforce child support obligations if necessary.
Once there is a Child Support Assessment in place (or a Binding Child Support Agreement), paying child support is a legal obligation, and failure to pay child support can result in serious consequences, including:
Legal action, including fines or imprisonment.
A deduction from the payer's wages or salary.
The suspension of the payer's drivers license.
The seizure of the payer's bank accounts or other assets.
Child Support Departure Order Application is a legal process in which one parent can ask the Court to change the amount of child support they pay or receive. This is possible if there are special circumstances that are not considered in the standard child support formula. There are several reasons why parents deviate from the standard formula. For example, one parent may have significant childcare responsibilities and as a result cannot work full-time. This can lead to reduced income and reduced ability to pay child support. Another common reason for filing is that one parent has irregular income, such as commissions, that cannot be adequately reflected in the standard formula.
To apply for departure order, after all other options have been exhausted to vary the child support assessment through administrative review and Child Support Registrar, a parent must apply to the Federal Circuit and Family Court of Australia. It may also be possible to apply directly to the Court, if the party applying has another matter in Court at the same time, such as a family law property or parenting matter.
The application must be submitted in the appropriate form and accompanied by supporting documents. These documents should include evidence of special circumstances not reflected in the standard formula. For example, if one parent is unable to work full-time due to caring responsibilities, they must provide supporting documentation, such as a doctor's letter or a statement from their employer.
Section 116 the Child Support (Assessment) Act 1989 (Cth) governs this process and states that "a liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child...." provided special circumstances apply.
After filing the application, the court will examine the evidence, the needs of the children and the special circumstances indicated in the request for departure. It is important to know that there is no guarantee that the departure request will be successful. The court will consider all the evidence presented and make a decision based on the best interests of the children. The court may also consider other factors, such as the payor's ability to pay child support and the recipient's ability to care for children not receiving child support.
These types of applications can be complex, and it is important to get legal advice before applying. A family lawyer can help prepare the application and advise on the chances of success. They can also represent you in court, which can be especially helpful if your application for a hearing is contested.
In summary, applying for child support departure order allows a parent to ask the court to change the amount of child support they pay or receive. This is possible if there are special circumstances that cannot be found in the standard child support formula. The court will evaluate the evidence presented and make a decision if satisfied that it is just and equitable as regards the child, the carer entitled to child support and the liable parent.
If you require any further information, please contact our Family Lawyers at Surge Legal for assistance.