2.6.15 Reason 9 - the Duty to Maintain any Other Child or Another Person
A parent can apply for a change of assessment in special circumstances if his or her capacity to support the child is significantly reduced by their duty to maintain another person.
CSA Act section 5, section 98C, section 98E, section 117(2)(a), section 151B
FL Act section 4, section 4AA, section 66L, section 67B, section 67C, section 72, section 75, section 90SB, section 90SE, section 90SF
Family Court Act 1997 (WA) section 5, section 135, section 136, section 205ZC, section 205ZD
Grounds for departure under Reason 9
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 commitments of the parent necessary to enable the parent to support another person that the parent has a duty to maintain,
- the special needs of another person that the parent has a duty to maintain, or
- the high costs involved in enabling a parent to spend time with, or communicate with, another person that the parent has a duty to maintain (section 117(2)(a)).
The 3 threshold requirements are:
- there are 'special circumstances',
- the applicant has a duty to maintain another person, and
- that duty significantly reduces the applicant's ability to provide financial support for the child.
The phrase 'special circumstances of the case' is not defined in the CSA 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).
Duty to maintain
The words 'duty to maintain' are generally limited to a legal duty. Early case law established that the duty had to be a legal duty and not just a moral obligation to maintain another person (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. The case law preceded recent legislative developments in the FL Act reflecting current community expectations regarding separated de facto spouses. For the purposes of Reason 9, those community expectations also include the recognition of the duty of de facto spouses to maintain each other during an intact relationship.
Example: A person may have a duty to maintain another person if:
- they are supporting their husband or wife in accordance with section 72 of the FL Act,
- they are supporting their de facto spouse with whom they are living on a genuine domestic basis,
- they are supporting their partner in accordance with the relevant state or territory law,
- they are paying spousal maintenance to a former husband or wife in accordance with an order made under the FL Act, or by a foreign court,
- they are paying maintenance to a former de facto partner in accordance with an order made under the FL Act or the Family Court Act 1997 (WA), or by a foreign court,
- the person is male and is supporting the mother of his child (to whom he is not married, nor in a de facto relationship) 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 FL 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 under State legislation (for example an order for child maintenance made under the Family Court Act 1997 (WA)), or
- the Family Court has made consent orders recognising Kupai Omasker (the Torres Strait Islander traditional practice of adoption).
A person does not have a 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.
Generally, parents do not have a duty to support a step-child (2.6.16) without a court order imposing such a duty. From 1 July 2008, a new change of assessment reason commenced (Reason 10 (2.6.16)). This reason enables either parent to seek a change to the assessment because their capacity to provide support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child (2.6.16) (section 117(2)(aa)).
Reason 10 may apply in circumstances where a parent has a second family that includes a step-child and the financial support of the step-child rests with the parent even though there is not a 'legal' duty to support the step-child. Reason 10 covers situations where the biological parents cannot meet the costs of their child due to illness, death, or incapacity to earn an income due to caring responsibilities.
Children of the payer & payee
Reason 9 does not apply in relation to the children for whom child support is transferable between the payer and payee (i.e. the children for whom the payer must pay child support to the payee). If the children have a special need, Reason 2 (2.6.8) may be relevant.
Reason 9 may apply if the parent has a duty to maintain a child other than the child support children.
Relevant dependent children
The administrative child support formula already takes into account a parent's responsibility to support their relevant dependent children (2.4.7) (i.e. the parent's children by birth or adoption) by deducting a relevant dependent child amount from the parent's income before calculating child support. A duty to maintain a relevant dependent child will not be a special circumstance that would warrant a change to the assessment, unless the child also has a special need.
Spouse or partner
A duty to maintain another person arises in relation to a person's spouse or partner where they are in an intact relationship. This is determined by reference to the definition of a 'member of a couple' in CSA Act section 5.
The term 'member of a couple' is defined (section 5) as meaning:
- a person who is legally married to another person and is not living separately and apart from the other person on a permanent basis,
- a person who is living with another person as their partner on a genuine domestic basis although not legally married, or
- a person whose relationship with another person (whether of the same sex or opposite sex) is registered under a prescribed state or territory law and who is not living separately and apart from the other person on a permanent basis.
The factors to be considered (220.127.116.11) in establishing whether people are living together on a genuine domestic basis are:
- financial aspects of the relationship,
- nature of the household,
- social aspects of the relationship,
- presence or absence of a sexual relationship, and
- nature of the commitment.
A person may have a duty to maintain a partner, where they are a member of a couple, if their partner is unable to adequately support themselves by reason of:
- having the care and control of a child of the relationship who is under 18,
- their age, physical or mental incapacity to obtain employment, or
- any other adequate reason.
A person is liable to support their partner only to the extent that they are reasonably able to do so, taking into account the matters listed in section 75(2) of the FL Act.
Example: F is liable to pay child support to M for their child B. F has re-married. Her husband O is unable to work. There are no children of F and O's marriage. F may have a duty to maintain O, depending upon the reasons for O's inability to work.
As noted above, the administrative child support formula already takes into account a parent's responsibility to support their relevant dependent children by deducting an amount from the parent's income before calculating their child support (See 2.4.7). The formula does not take into account a parent's responsibility to support a dependent spouse. However, the fact that a parent'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 parent's income does not meet the needs of the household, as a result of the spouse's unemployment (or under-employment). The applicant must also be able to show that there are special circumstances in their case.
Example: M and F have a child support case for their child A. M has re-partnered and lives with his new partner on a genuine domestic basis. He and his new partner N have a disabled child, C. N is unable to return to the workforce because C's disability prevents C attending school or using childcare. C's disability is a special circumstance and M has a duty to maintain N, as well as a duty to maintain C. M's duty to maintain N and C significantly affects his capacity to provide financial support for A.
F and M have a child support case for their child A. F is married to H who has a child S. S's other parent is deceased. H is not employed and has no personal income. H provides full-time care at home for S, who has special needs. F has no duty to maintain S, as S is not F's child. However, F does have a duty to maintain H because F is married to H.
Where a person applies under this reason because their partner or child has a medical condition, or requires medical treatment, the Registrar will require them to provide appropriate medical evidence (2.6.5) of that condition.
Child birth maintenance period (where the parents are not married nor in a de facto relationship)
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 (FL Act section 4 and section 67B, or Family Court Act 1997 (WA) section 5 and section 135). Section 67C of the FL 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 duty to support the mother of their unborn child, the Registrar will require them to provide appropriate medical evidence (2.6.5) of the pregnancy and the expected date of confinement. The Registrar will also require information about the mother's financial circumstances (see section 67C of the FL Act and section 136 of the Family Court Act 1997 (WA)).
A parent does not automatically have a duty to maintain a child over 18 years of age.
However, 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 (FL Act section 66L). A parent (either the payer or the payee) must be able to show that they have a duty to maintain an adult child before an assessment can be changed. If the Registrar 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).
The Registrar may recommend that an application be made to a court having jurisdiction under the CSA 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, the Registrar 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 duty to maintain another child over 18 years who is proposing to undertake tertiary education, the Registrar 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), and
- the filial relationship between the child and the person from whom maintenance is sought.
A 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.
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).
Example: A child's learning disability.
A condition that is distinct from the usual childhood illnesses suffered by a child may be a condition that is out of the ordinary.
A long-term or short-term physical or mental disability.
In some cases, needs which arise from such special talents that are likely to lead to particular success or prominence may be considered 'special needs'. Gifted sports people could be considered to have special needs (Blamey and Blamey (1995) FLC 92-554).
The person who seeks to rely on this reason will need to provide documentation, such as medical evidence (2.6.5), to substantiate their claim. Similarly, the Registrar 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 (2.6.8)).
Costs of enabling a parent to spend time with, or communicate with, a child or person
If a parent has high costs in enabling them to spend time with, or communicate with, a child or person they have a duty to maintain (other than the child support child), this may also be a reason for a change of assessment. The principles that apply to calculating costs to spend time with, or communicate with, a child or person (2.6.7) under Reason 9 are the same as those applying to Reason 1.