The Legal Practitioner's Guide
3. Applying to court for departure orders
If parents cannot or do not wish to make an agreement about child support, but wish to depart
from the standard formula assessment, they may also seek a departure decision in certain
circumstances.
In most circumstances, parents will be required to use the administrative departure processes
(Change of Assessment, and, if necessary, administrative objection and subsequent appeal to
the SSAT) to have formula assessments changed. Provisions relating to administrative departure
processes are contained in Part 6A of the Assessment Act.
Part 7, Division 4 of the Assessment Act provides that parents with a child support formula
assessment can, in limited circumstances, apply directly to a court for a departure from their
assessment. The court can make a departure order if one of the legislated grounds for departure
exists and it would be just, equitable and otherwise proper to do so (section 117).
A person's right to apply directly to a court for a departure order will arise when:
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a parent or non-parent carer's application to CSA for a change to the administrative
assessment has been refused because the matter is too complex (section 98E or section 98R),
and subsequently an objection from either parent or carer has also been disallowed
(sections 116(1)(a) and 116(1)(aa)); or
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the payer and/or the payee are a party to other proceedings, such as a property settlement
or enforcement proceedings, before a court with jurisdiction to hear a departure
application and the court is satisfied that it would be in the payer and payee's interests
to consider the matters together (section 116(1)(b)); or
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the person is assessed to pay child support at the minimum annual rate according to
section 66(1) (section 116(1)(c)), to have this rate reduced to nil.
A court may also make a departure order in certain other circumstances.
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An administrative departure order cannot be made for a period more than 18 months before
the application was made (section 111) without express leave from a court under section
112. If a court grants leave, it may also continue to make the departure decision itself.
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A court may also make a departure order if it sets aside a child support agreement under
section 136.
Section 118 specifies the types of departure orders that a court can make.
It should be noted that, unlike for child support agreements, the entitlement of the parent to
Family Tax Benefit will be based on the child support that they receive according to the
departure decision (rather than according to a Notional Assessment, see 2.3 above).