excerpt of the legislation in .doc format (74K)
Where the Registrar is satisfied that special circumstances exist, the Registrar may make a determination to depart from the child support formula. The Registrar's powers to make a departure determination are virtually identical to the court's power to make a departure order under Division 4 of Part 7 CSAA.
Parliament intended the departure process to be a way for parties to have special circumstances taken into consideration in a summary manner without having to resort to costly and time consuming litigation. To facilitate this, parliament made Reg free from rules of evidence and gave Reg broad discretion as to how departures are heard. Clients are expected to use Part 6A departure before applying to court for a departure order. Accordingly the court has no jurisdiction to hear departure applications unless an application has been made to Reg and Reg has made a decision or refused to make a determination.
As usual, Reg made a mockery of parliament's good intentions in the implemenation of the departure process. In particular the wording of the forms and the advice given to payers is geared around railroading payers into not claiming their full legal entitlement. Nevertheless, the legislation sets out rules regarding the manner in which departure determinations are made and informed clients can work around Reg's manipulation and bluff.
In any case, a part 6A application is the first step in getting the
matter into a real court, where there are real rules and some semblance
of accountability.
Part 6A application:
CSA's departure application form is here.
You can apply for a departure for any assessment year after July 1992. A departure officer advised CSAwatch that the financial details they want for pages n..n are details for the current year.
The review process
The Registrar receives an application. A copy of the application is
sent to the other party, who is given an opportunity to reply.
CSA advised CSAwatch on December 22 1999 that where an application
is made, the CSA invite the other party to lodge a cross-application.
For the Registrar to make a determination the Registrar must be satisfied:
(from s.98C)
- that one, or more than one, of the grounds
for departure set out in subsection 117(2) exists; and
- that it would be:
(A) just and equitable as regards
the child, the liable parent, and the carer entitled to child support;
and
(B) otherwise proper;
to make a particular determination
The legislation sets out a test for "just and equitable" and "otherwise proper". More on that later. The first step is to establish that a ground for departure exists - this then invokes the A and B tests.
An interesting effect of the departure process is that an assessment
amended under Part 6A becomes an administrative assessment in itself. Thus
on appeal of a Part6A determination the onus shifts onto the aggrieved
party to establish a new ground for departure. For example; say a payer
gets a determination reducing the assessment from $200 a week to $50 a
week. The payee cannot appeal in court on the grounds that the departure
should not have been made, she must establish fresh grounds to depart from
the new assessment.
Grounds for departure
Thus begins CSA spin. CSA's reason's are not all strictly incorrect,
but they do attempt to simplify what is already a simply worded test, and
thus leave out some possible claims.
| Reasons about the children
REASON 1 It costs you more than 5% of your child support income amount to have contact with the children. REASON 2 It costs you extra to cover the children’s special needs. REASON 3 It costs you extra to care for, educate or train the children in the way you and the other parent had initially intended. REASON 4 The child support assessment does not take into account the income, earning capacity, property or financial resources of the children. REASON 5 The children, the payee or someone else has received, or will receive, money, goods or property from the payer for the benefit of the children. REASON 6 You are the payee, you have sole care of the children, and it costs you more than 5% of your child support income amount for childcare, for children 12 years and under. Reasons about the parents REASON 7 You have necessary expenses in supporting yourself that affect your ability to support the children. REASON 8 The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both parents. Reasons about a duty to maintain another person or other children REASON 9 You have a legal duty to maintain another person or other children
not included in the child support assessment, and it costs you:
|
The REAL grounds for departure are set out in ss117(2). There are 3 grounds with 11 reasons for those grounds. The minor discrepancy between CSA's grounds and the legal grounds provides scope for challenging departures.
From s.117:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for
departure are as follows:
(s117 has effect as if "court" refers to the Registrar
and "order" refers to determination.)
| (a) that, in the special circumstances of
the case, the capacity of either parent to provide financial support
for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or (ii) special needs of any other child or another person that the parent has a duty to maintain; or (iii) commitments of the parent necessary to enable the parent to support: (A) himself or herself; or (B) any other child or another person that the parent has a duty to maintain; or (iv) high costs involved in enabling a parent to have contact with any other child or another person that the parent has a duty to maintain; (b) that, in the special circumstances of the
case, the costs of maintaining the child are significantly affected:
(c) that, in the special circumstances of the
case, application in relation to the child of the provisions of this Act
relating to administrative assessment of child support would result
in an unjust and inequitable determination of the level of financial support
to be provided by the liable parent for the child because of:
|
NOTE - (a)(i) specifies "the duty of the parent to maintain any other child or another person". The duty to support, provided one actually does support that person, is a valid ground for departure. The payer does not have to establish "extra to cover the necessary expenses of the children you have a legal duty to maintain" as CSA's reason 9 implies.
NOTE - (c)(i) specifies the "income, earning capacity, property and financial resources". CSA's ground 8 specifies or. Thus Reg chooses to ignore parliament's intent that the financial resources of a parent must be considered in their entirety, not just income in isolation.
| (4) In determining whether it would be just and equitable as
regards the child, the carer entitled to child support and the liable parent
to make a particular order under this Division, the court must have regard
to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and (b) the proper needs of the child; and (c) the income, earning capacity, property and financial resources of the child; and (d) the income, earning capacity, property and financial resources of each parent who is a party to the proceeding; and (e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support: (i) himself or herself; or (ii) any other child or another person that the person has a duty to maintain; and (f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and (g) any hardship that would be caused: (i) to: (A) the child; or (B) the carer entitled to child support; by the making of, or the refusal to make, the order; and (ii) to: (A) the liable parent; or (B) any other child or another person that the liable parent has a duty to support; by the making of, or the refusal to make, the order. |
Note that this test requires that the income, earning capacity, property and financial resources of the child and all parties MUST be considered even if that particular ground is not relied on for the departure.
| (5) In determining whether it would be otherwise proper to make
a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and (b) the effect that the making of the order would have on: (i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or (ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support. |
(b)(i) is the factor Reg appears to place most weight on in making a departure determination.
Al Nicholson CJ wrote an interesting memo whereby he read s.68J Family Law Act (the best interests of the child) into the Maintenance Order part (Part 7) of the FLAct with regard to duty to support step-children. Al himself said he had not heard argument on the matter. CSAwatch is of the opinion that parliament did not intend s68F to apply to part 7 of FLAct. Nevertheless Al's memo provides a nifty opportunity to challenge the weight placed on this particular element of departure orders by the court should a litigant feel inclined to do so. Images of Al's memo can be found here
| (6) In having regard to the proper needs of the child, the court
must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and (b) any special needs of the child. |
Income,
earning capacity, property and financial resources
| (7) In having regard to the income, earning capacity, property
and financial resources of the child or a parent of the child, the court
must:
(a) have regard to the capacity of the child or parent to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child or parent that do not produce, but are capable of producing, income; and (b) disregard: (i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and (ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit. |
(7)(a) means that any money the payee has stashed away in trust funds etc to maximise welfare entitlements must be considered as producing income for child support purposes.
Direct
and indirect costs incurred by the carer
| (8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care. |
(9) Subsections (4) to (8) (inclusive) do not limit other matters
to which the court may have regard.
Determinations Reg can make.
The determinations Reg can make under Part 6A are set out in s98S of
the Child Support (Assessment) Act 1989.
| 98S Determinations that may be made under Part
(1) Subject to section 98A, the determinations that the Registrar may make under this Part are as follows:
(g) a determination varying a factor ascertained under paragraph54(1)(b). (provisions where there are two or more eligible carers) |
In support of the section of the departure application form where it asks what you think a fair determination would be, write a supplementary note in terms of one of the above.
Note that Reg cannot directly credit money or property transferred under
CSA reason 5 "(ii) any payments, and any transfer or settlement of property,
made or to be made (whether under this Act, the Family Law Act 1975 or
otherwise) by the liable parent to the child, to the carer entitled to
child support or to any other person for the benefit of the child."
However he can make a determination to reduce one the factors used to calculate
liability to give effect to a credit amortised over time.
Effect of Departure Determination
Reg changes the child support register for whatever period specified
in the determination. Now, this is where it gets really interesting, you
see s35 specifies that Reg MUST use the basic formula except under three
specific conditions. A departure determination is not one of those conditions.
| Part 5—Administrative assessment of child support
Division 1—The basic formula 35 Application of basic formula to determine annual rate of child support This Division applies in relation to the assessment of child support payable for a child by a liable parent: (a) except to the extent otherwise provided in Division 2 (Modifications of the basic formula for certain cases); and (b) subject to any order made by a court under Division 4 of Part 7 (Orders for departure from administrative assessment in special circumstances); and (c) subject to any provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent. |
Reg's Part 6A departure determinations are not a court order and they certainly aren't made under Part 7. So Reg can make departure determinations 'til the cows come home, he just can't act on them :-)
Parliament apparently "forgot" to fix this unfortunate oversight in 1996, 1998 and 1999. And of course to rectify this oversight now would spill the beans with the resultant massive refunds (with interest) on every Review performed since 1992.
So if you have, or get, a Part 6A departure you don't like, you can
object under Part 6B and get the departure undone.