2.6.15: Reason 9 - the duty to maintain any other child or another person

Context

A payer or payee can apply for a change of assessment in special circumstances if the parent's capacity to support the child is significantly affected by their legal duty to maintain any other child or another person.

Legislative references

Section 5, 98C , 98E, 117 and 151B Child Support (Assessment) Act 1989

Sections 60D, 66L, 67B, 67C, 72 and 75 Family Law Act 1975

Sections 134, 135 and 136 Family Court Act 1997 (WA)

Explanation

There can be a reason for changing an assessment if, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

• the duty of the parent to maintain any other child or another person; or
• the special needs of any other child or another person that the parent has a duty to maintain; or
• the commitments of the parent necessary to enable the parent to support any other child or another person that the parent has a duty to maintain; or
• the 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 (section 117(2)(a)).

The three threshold requirements are:

1. there are 'special circumstances'
2. the applicant has a duty to maintain another child or another person; and
3. that duty significantly affects the applicant's ability to provide financial support for the child.

Special circumstances

The phrase 'special circumstances of the case' is not defined in the Assessment Act. The Family Court has held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary' (Gyselman and Gyselman (1992) FLC 92-279).

Legal duty to maintain

The words 'duty to maintain' are limited to a legal duty and do not include what is only a moral obligation to maintain a person or child (Vick and Hartcher (1991) FLC 92-262).

The principles established in Vick and Hartcher were later adopted in Dwyer v McGuire (1993) FLC 92-420 where it was found that a husband had no legal duty to support his elderly parents and sister.

Examples

• they are supporting their husband or wife (but not a de facto partner) in accordance with section 72 of the Family Law Act;
• the person is male, and supporting the mother of his child (to whom he is not married) for the childbirth maintenance period
• they are supporting a child (including a step-child) who is a relevant dependent child;
• they are supporting an adult child in accordance with section 66L of the Family Law Act;
• they are paying child maintenance for a child (including a step-child) in accordance with a court order made under the Family Law Act, or by a foreign court (i.e. not an administrative assessment of child support)
• they have an obligation to support a child or another person under state legislation (for example an order for child maintenance made under the Family Law Act 1997 (WA));
• the Family Court has made consent orders recognising Kupai Omasker (the Torres Strait Islander traditional practice of adoption). 

A person does not have a legal duty to support a person for whom they have provided an 'assurance of support' as a condition of that other person's migration to Australia. An assurance of support is the assuror's undertaking to repay the Commonwealth for certain entitlements that the assuree may claim while in Australia. It does not create a legally enforceable duty for the assuror to support the assuree.

Children of the payer and payee

Reason 9 does not apply in relation to the children for whom child support is payable (i.e., the children for whom the payer must pay child support to the payee). If the children have a special need, reason 2 may be relevant)

Reason 9 may apply if the payer has a duty to maintain a child other than the child for whom he or she is liable to pay child support to the payee.

Payer's relevant dependant children

The administrative child support formula already takes into account the payer's responsibility to support their relevant dependant children (i.e. the payer's children by birth or adoption, or step-child who live in the payer's household) by increasing the payer's exempt income amount. (See chapter 2.4, the basic formula). The payer's duty to maintain a relevant dependant child will not be a special circumstance that would warrant a change to the assessment, unless the child also has a special need.

Children living with the payee (who are not the payer's children)

The additional allowance for a relevant dependant child only applies to a payer. Therefore, Reason 9 may apply if the payee has a duty to maintain a child other than the child for whom the payer is liable to pay child support, (eg, the child of an earlier or subsequent relationship) and there are special circumstances, or if the child has a special need.

Spouse or partner

A person may have a legal duty to maintain a spouse if the spouse is unable to adequately support themselves by reason of:

• having care and control of a child of the marriage who is under 18;
• their age, physical or mental incapacity to obtain employment;
• or any other adequate reason.

The duty is limited to a married spouse and does not include a de facto partner (section 72 Family Law Act). The Family Law Act also provides that a person is liable to support their spouse only to the extent that they are reasonably able to do so, taking into the matters listed in section 75(2) of the Family Law Act.

Example

As noted above, the administrative child support formula already takes into account the payer's responsibility to support their relevant dependant children by increasing the payer's exempt income amount. (See chapter 2.4, the basic formula). There is no specific increase in the payer's exempt income amount where the payer has a dependant spouse. However, the mere fact that a payer's spouse is staying home to care for the children of the marriage does not, of itself, meet the reason 9 test. Nor is it sufficient that the payer's income does not meet the needs of the household, as a result of the spouse's unemployment (or underemployment). The applicant must also be able to show that there are 'special circumstances' in their case.

Examples

Where a person applies under this reason because their spouse or child has a medical condition, or requires medical treatment, CSA will require them to provide appropriate medical evidence of that condition.

Mother of the child/child birth maintenance period (where the parents are not married)

A person does not generally have a duty to support their partner if they are not legally married. However, the father of an unborn child may be liable to pay maintenance to the mother and reasonable medical expenses in relation to the birth, in most cases for a period of 2 months prior to the birth and 3 months after the birth (sections 60D(1) and 67B Family Law Act, or sections 134 and 135 of the Family Court Act 1997 (WA)). Section 67C of the Family Law Act sets out the matters that are to be considered in determining the contributions the father is liable to make (or section 136 of the Family Court Act 1997 (WA)).

Where a person applies under this reason because they have a legal duty to support the mother of their unborn child, CSA will require them to provide appropriate medical evidence of the pregnancy and the expected date of confinement. CSA will also require information about the mother’s financial circumstances (see section 67C of the Family Law Act and section 136 of the Family Court Act 1997 (WA)).

Adult children

A child support assessment for a child ends if the child turns 18 years of age unless the payee applies for an extension of child support to the end of that school year when the child is still a full-time secondary student (section 151B). It is not necessary for a payee to apply for a change to their child support assessment.

A parent does not automatically have a legal duty to maintain a child over 18 years of age. A court can make an order for the maintenance of an adult child if it can be established that maintenance is necessary to enable the child to complete their education or because of a mental or physical incapacity (section 66L Family Law Act). A parent must be able to show that they have a legal duty to maintain an adult child before an assessment can be changed. If CSA is satisfied that the child meets the criteria set out in section 66L a reason can be established even if an order has not been made (Bienke v Bienke-Robson (1997) FLC 92-786).

CSA may recommend that an application be made to a court having jurisdiction under the Assessment Act (section 98E) in cases where it is too complicated to determine whether the 'adult' child is continuing education or whether they have a mental or physical incapacity. However, in most cases, CSA will be able to make a finding on the basis of evidence supplied by the applicant and respondent.

When deciding if a parent has a legal duty to maintain another child over 18 years who is proposing to undertake tertiary education, CSA may consider (Cosgrove v Cosgrove (1996) FLC 92-700):

• whether the child's dependence upon its parents had ceased and the application amounts to a reinstatement of that dependence,
• the period between the initial cessation of dependence (if any) and the application,
• whether the child had completed the course of education intended by the parents to outfit them for employment sufficient to support the child,
• other assistance, benefits or education which the child has received,
• the ability of the child to complete the course in question,
• the likelihood of the child completing the course in question,
• the financial capacity of the child to maintain himself or herself to the completion of the education,
• the financial circumstances of those responsible for the support of the child (generally the parents),
• the filial relationship between the child and the person from whom maintenance is sought.

Kupai Omasker

A legal duty to maintain a child will be established where the Family Court has issued consent orders that recognise Kupai Omasker, the Torres Strait Islander traditional practice of adoption.

Special needs

The term 'special needs' is not defined in the legislation. There must be some evidence that the needs of the child, or the other person relate to a condition or disability that is out of the ordinary. This can be because of a physical, mental or learning disability or because of a special talent or ability (Lightfoot v Hampson (1996) FLC 92-663).

Examples

The person who seeks to rely on this reason will need to provide documentation, such as medical evidence, to substantiate their claim. Similarly, CSA will require the parent making the application to provide evidence of the net expenditure associated with the special need.

This reason does not apply in relation to the special needs of a child for whom child support is payable (who would be covered by reason 2)

Costs of contact

If a parent has high costs of contact with a child or person they have a legal duty to maintain (other than the child for whom they are liable to pay child support to the payee), this may also be a reason for a change of assessment. The principles that apply to calculating contact costs under reason 9 are the same as those applying to reason 1.

---

Version 1.5

Issued 24 December 2005

Feedback

<<< Previous | Next >>>