Family Law Library

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Mathews Family Law have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


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Maintenance in De Facto Relationships

De facto partners can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for a de facto maintenance Order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the Order set aside.

Can De Facto Couples Turn to the Courts on Issues of Property, Maintenance and Superannuation?

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

1. The relationship existed for at least two years OR

2. The couple has a child together OR

3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR

4. The relationship was registered

 

Child Support after Divorce

Under Australian family law, child support following a divorce is governed under the Child Support (Assessment) Act of 1989. Child Support Agency is the institution responsible for evaluating how much child support should be paid and also for collecting it from the parent. This agency falls under the control of the Department of Human Services. The Child Support Agency performs functions such as evaluation upon receiving an application from the parent who has custody of children. A specific formula is being used to determine the amount of child support that the other parent is liable to pay.

The formula takes into account a number of factors such as the annual income of both the parents, the age of the child and the costs that may be reasonably expected in taking care of the child. In order to arrive at a more equitable assessment, the formula also takes into consideration how much time the mother and father spends with the child. To further prevent overburdening either parent, the formula also considers whether the parent is already liable to pay child support as a result of an earlier divorce. The formula is also available on the website of the Child Support Agency and can be used by the parents independently.

In few special circumstances, however the law permits some deviation from the prescribed formula. One such situation might involve either parent incurring substantial expense in traveling over to spend time with the child. In cases where the actual financial resources of the parent differ from their declared income, the difference may also be taken into account to arrive at a fairer assessment.

In most cases, the child support payments are made to the Child Support Agency every month, from where they are then forwarded to the parent in custody of the child.

 

How much child support will I owe?

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Parent who Moves the Children Must Carry Financial Burden

Lorreck & Watts – [2012] FMCAfam 977

This appeal was brought before the Family Court in Canberra and raised the question of which parent has to pay for the travel costs for children’s visits to the other parent.

Ms. Lorreck, the mother, and Mr. Watts, the father, had two children.  In June 2012, the court gave orders allowing the mother and the two children to relocate to Cairns from Canberra.  The father remained in Canberra.  The order also included seven trips from Cairns to Canberra in a two year period.  The decision regarding the costs of travel to and from Canberra was remitted to the Federal Magistrates court.

Both the mother and the father submitted their travel expense requests to the Federal Magistrate.  The mother asked that she be required to pay for only one trip per year for the children to visit their father until she could earn $1,300 per week, at which time she would pay for every second trip.  The father asked that the mother pay for every two out of three trips.

The Federal Magistrate ruled that the parents should share the burden of travel expenses equally.  He noted both the mother’s proposal to pay for every second set of airfares and also noted that she had earlier offered to pay half of all of the flights.  The Federal Magistrate recognized that the mother would need time to readjust to her new circumstances before imposing a financial burden on her, but concluded that this did not give her permission to forego her responsibility for the children.

The mother appealed the decision arguing that the Federal Magistrate did not provide adequate reasons for his decision, did not rely on the financial evidence she submitted to the court and disregarded the best interests of the children.  The mother’s income was based solely on child support and social security and after deducting her expenses she was left with $26 per week of disposable income, or $1,352 per year.   The Family Court agreed that the Federal Magistrate did not explain why he rejected the mother’s proposal.   While the Family Court assumed that the Federal Magistrate did this on the basis of the mother’s original offer to pay for half of the travel costs, the Federal Magistrate did not explain his reasons for giving the order on travel expenses.  Therefore, the Family Court found that the appeal should be allowed “on the basis of the challenge to the adequacy of his reasons.”

The Family Court, however, rejected the mother’s claim that the Federal Magistrate’s decision did not take the children’s best interests into consideration.   The mother referred to section 60CC of the Family Law Act, 1975, a list of factors a court uses to determine what the best interests of the children are when granting parenting orders.  While the mother specifically referred to section 60CC(3)(e) of the Act, which allows the court to consider the practical difficulty and expense of a child spending time with the other parent, she did not raise this issue in the context of her financial burden.   The Family Court did not view it as a valid claim on appeal.

Mother to Pay Three of the Seven Trips

The Family Court ruled that the mother must pay for three out of seven trips over a two year period.  This was the mother’s alternative suggestion if the court chose not to accept her proposal that she begin paying only once she started to earn $1,300 a week.

The Family Court gave several reasons for this decision.  The judge held that the question of best interests as laid out in section 60CC of the Act does not apply to issues of travel costs.  Instead, the court found that it was the mother’s decision to move the children in the first place and therefore “must bear a significant responsibility or obligation to ensure that they are able to spend time with their father”.  In addition, while the father’s income was higher, he was not in a position to pay most of the travel expenses, particularly since he was already paying child support.  The court also found that just as the financial burden on the mother could impact negatively on the children, the mother’s failure to contribute to the travel costs might increase the father’s anger and bitterness and therefore impact negatively on the children as well.  Finally, the court argued that waiting until the mother reached a certain income level was unrealistic because she might never reach that level and because “income levels can be contrived”.   Instead, the court made the mother responsible for three out of seven trips, beginning from a specific date, January 1, 2014.

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Dividing the property in Australia

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How is child support calculated?

Both parents are responsible for financially supporting or maintaining their children.   The laws covering child support are the Child Support (Registration and Collection) Act, 1988 and the Child Support (Assessment) Act, 1989.

Child support – how much is paid by each parent for the needs of the child – is calculated by looking at each parent’s income, each parent’s expenses and the amount of care each parent provides.   First each parent’s “child support income” is considered.  This is the parent’s taxable income , minus what he or she needs to support him or herself .  So if a mom makes $35,000 a year and needs $20,000 to live on, her child support income is $15,000.  These two incomes are then added together to determine how much total child support is available from both parents combined.

Each parent’s individual child support income is divided by the total child support amount to figure out what percentage of each parent’s income should go to child support.   This is called the “income percentage”.

Then child care is taken into consideration.  The parent taking greater care of the child is making a financial contribution that is also recognized and that parent is entitled to pay less child support.  This is called the “care percentage” and it’s based on the number of nights a child spends with each parent.   This is used to determine how much that care costs in actual dollar terms.   The Department of Human Services has a fixed chart to make this determination.  This number, which is a percentage, is called the “cost percentage”.  This cost percentage for each parent is then subtracted from each parent’s income percentage.  If the number is negative, this indicates they are providing most of the child care and they do not need to pay child support.  If the number is positive, this is the parent who will pay child support.

The next step is to figure out the actual cost for each child, which is based on the parent’s combined child support income, the number of children and their ages.   There is a fixed chart that is updated each year.

The final amount to be paid is calculated by multiplying the child support percentage (of the parent with the positive percentage) by the costs of the child.

The Child Support Agency provides a clear, thorough example to demonstrate exactly how the process works, brought below.

M and F have three children, A aged 9, B aged 7, and C aged 5, who live mostly with M. The children spend 75 nights a year with F, who has regular care of the children. M has an adjusted taxable income of $30 000 and F has an adjusted taxable income of $50,000.

Step 1: Work out each parent’s child support income by deducting the self-support amount of $18,252 from their adjusted taxable income.

M has a child support income of $11,748 ($30,000 less $18,252)

F has a child support income of $31,748 ($50,000 less $18,252)

Step 2: Work out the parents’ combined child support income.

$11,748 + $31,748 = $43,496

Step 3: Work out each parent’s income percentage.

M = $11,748 ÷ $43,496 x 100 = 27.01%

F = $31,748 ÷ $43,496 x 100 = 72.99%

Step 4: Work out each parent’s percentage of care for each child.

M has care of all the children for 290 nights, 79.45% of the nights, rounded to a care percentage of 80%.

F has care of all the children for 75 nights, 20.55% of the nights, rounded to a care percentage of 20%.

Step 5: Work out each parent’s cost percentage for each child by looking up the table in section 55C.

M has a cost percentage of 76%

F has a cost percentage of 24%

(Note: a percentage of care is calculated for each child. As the care arrangements for these children are the same, the percentage is the same for all the children. If there are different care arrangements for different children, then they will have different percentages of care).

Step 6: Work out each parent’s child support percentage for each child by subtracting their cost percentage for that child from their income percentage. As the care arrangements are the same for all the children we will show the one percentage that is used for all the children.

M = 27.01% – 76% = -48.99%

F = 72.99% – 24% = 48.99%

(This means that F is responsible for 72.99% of the children’s costs because they have 72.99% of the combined child support income. As F meets only 24% of the costs through care they need to transfer 48.99% of the costs to M through child support.)

Step 7: Work out the costs of each child.

The combined child support income is $43,496.

From the 2012 Costs of Children Table the total costs of the children (three children 12 or under) =

$8,757 + ($0.26 for every $ over $32,433)

$8,757 + ($43,496 – $32,433 = $11,063 x $0.26 = $2,876)

Therefore: $8,757 + $2,876 = $11,633

The cost of each child = $11,633 ÷ 3 = $3,878

Step 8: Work out the annual rate of child support payable by the parent with a positive child support percentage.

48.99% x $3,878 = $1,900

$1,900 x 3 (children) = $5,700

F is liable to pay M child support of $5,700 (annual rate).

(From “The Guide”, the CSA’s online guide)