The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

2.6.16 Reason 10 - responsibility of the parent to maintain a resident child

Context

A parent or non-parent carer can apply for a change of assessment in special circumstances if a parent's capacity to provide financial support for the child/ren of the assessment is significantly reduced because of the responsibility of the parent to maintain a 'resident child'.

Act references

CSA Act section 5, section 98C, section 98S, section 117(2)(aa), section 117(4) to 117(10)

FL Act section 60H, section 60HB

Terminology

In this section the term 'child support parent' refers to the parent who is a party to the relevant child support assessment. The term 'legal parent' refers to the people who are parents of the resident child at law. The legal parents may be the child's biological or adoptive parents, or the people who are the parents of a child born as a result of an artificial conception procedure pursuant to FL Act section 60H, or the people who are the parents of a child born as a result of a surrogacy arrangement pursuant to FL Act section 60HB.

Grounds for departure under Reason 10

There can be a reason for changing an assessment if the capacity of either child support parent to provide financial support for the child/ren is significantly reduced because they have a responsibility to maintain a 'resident child'.

The 3 threshold requirements are:

  1. there are 'special circumstances'
  2. the child support parent has the responsibility to maintain a 'resident child', and
  3. the responsibility significantly affects the child support parent's ability to provide financial support for the child of the child support assessment.

The phrase 'special circumstances of the case' is not defined in the CSA Act. The Family Court 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).

A 'resident child' of a child support parent is a child who (CSA Act section 117(10)):

In circumstances where a parent has a 'legal duty' to support a child, an application should be made under Reason 9 (2.6.15).

Normally lives

The term 'normally lives with' is not defined in the CSA Act. Generally a child will be considered to 'normally live with' a child support parent if they live with the child support parent for at least 35% of the time over a 12-month period. This does not exclude an extraordinary circumstance where the child support parent and the child live under the same roof for less than 35% of the year but the child support parent still provides and cares for the child, for example, where a child is at boarding school.

Member of a couple

The term 'member of a couple' is defined (CSA Act section 5) as:

  • 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 (SS Guide 2.2.5.30) in establishing whether people are living together as partners 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.

In addition, a person cannot live with another person as their partner on a genuine domestic basis if they are aged under 16 years. This is because a person is living with another person as their partner on a genuine domestic basis if the relationship has the characteristics of marriage (FO v HAF [2006] QCA 555; Re Kennison and Secretary, Department of Social Security (1985) 8 ALD 560). To have the characteristics of marriage, the persons must be at least 16 years old, which refers to a person's capacity to marry pursuant to the Marriage Act 1961 (Cth).

The child support parent may need to provide evidence to the Registrar that they are or were a member of a couple.

A child support parent does not have to have a current partner to apply under this reason. The resident child can be a child of the child support parent's former partner, if:

  • the child remained with the child support parent after they separated, or
  • the partner is deceased and the child remained with the child support parent

so long as the relationship with the legal parent continued for at least 2 years (CSA Act section 117(10)).

Unable to support the child

When the Registrar is considering whether a legal parent is 'unable to support the child' because of 'ill health' or 'caring responsibilities', an ongoing income stream, although the most obvious way a parent has of supporting the child, is not the only avenue of support available. The Registrar must also consider whether a legal parent has any other way of supporting the child, i.e. savings, social security benefits, compensation, assets etc.

Note: if a legal parent is receiving a social security pension or benefit they would be considered able to support the child, even if this is only at the minimum annual rate. The only exception to this would be if the legal parent's circumstances would otherwise qualify them for a reduction under CSA Act section 66A.

FTB is not a social security pension or benefit. However, it is paid to the legal parent for the children in their care, and is considered to be income from which the legal parent could support the child.

Ill health of a legal parent

If a legal parent has health problems, this may mean that they are unable to earn income to support the child/ren.

The Registrar will take into account any evidence that the legal parent presents about their state of physical and mental health. It would usually be expected that a legal parent's state of health will have been diagnosed by a qualified medical practitioner and they are being treated for the condition. Therefore, the legal parent would usually be able to provide medical certificates or reports from their treating doctor, and/or reports from any specialist to whom the legal parent was referred.

The following factors are relevant in considering whether a legal parent's state of health affects their ability to support their child/ren:

  • the fact that the legal parent suffers from a medical condition
  • the impact of the medical condition on the legal parent's ability to work
  • the expected duration of the condition
  • any recommended treatment, and the impact that this has on the legal parent's ability to support the child/ren
  • the availability of light duties, if the legal parent could work in a restricted capacity.

The Registrar will weigh up the evidence about these and any other relevant matters in order to decide whether the legal parent's ill health is such that they are unable to support their child/ren.

Caring responsibilities of a legal parent

The type of caring responsibilities that might justify a legal parent's inability to earn income to support their child/ren will only be a personal responsibility to care for another person. Caring responsibilities could include caring for their child, parent, elderly relatives or friends.

The following factors are relevant in considering whether a legal parent's caring responsibilities affects their ability to support their child/ren:

  • the relationship between the legal parent and the person being cared for
  • whether the legal parent has a legal duty to maintain the person for whom they are providing care
  • if the legal parent does not have a legal duty, whether they have a moral duty and the extent of that moral duty
  • the degree and type of care provided
  • whether the legal parent has some capacity for part time or casual work in conjunction with their caring responsibilities
  • the availability of alternative care (personal and institutional)
  • whether that alternative care is suitable and/or affordable, and
  • the previous and proposed duration of the period of care.

The Registrar will weigh up the evidence about these and any other relevant matters in order to decide whether the legal parent's caring responsibilities are such that they are unable to support the child/ren.

A legal parent who has been in the workforce may cease work, or reduce their work commitments to accommodate their caring responsibilities. Where this is a longstanding arrangement (e.g. one that existed prior to becoming a member of a couple for 2 continuous years with the child support parent), the legal parent's ability and opportunity to undertake paid employment is diminished by their caring responsibilities and their absence from the workforce.

If the legal parent's caring responsibilities would not prevent work, or additional work, the Registrar may consider that their caring responsibilities do not affect their ability to support the child/ren.

The resident child requires financial assistance

As the legislation requires that the resident child must require financial assistance (CSA Act section 117(10)(g)), an application under this reason will require the Registrar to consider the circumstances of both the legal parents of the resident child, as well as the income and financial circumstances of the applicant and the other child support parent. If there are other sources of income that already adequately provide for a resident child, or could do so, it would not normally be just and equitable to assess the child support parent's resources as affected by the resident child's needs. A child support parent will not be considered as being required to meet the resident child's costs unless both legal parents are unable to do so due to death, or unable to earn income due to ill health or caring responsibilities.

The Registrar can consider the following in deciding if a change is fair:

  • the source and amount of any benefit paid to or in respect of the resident child (e.g. social security pensions or benefits)
  • whether child support is being paid for the resident child
  • the cost of caring for the resident child
  • the income and resources of the resident child's legal parents
  • whether the assessment has already been adjusted to take the resident child into account
  • whether any other adult who has a legal duty to maintain the resident child has a capacity to do so
  • the total expenditure outlaid to maintain the applicant's household, and
  • any assets and other resources held by, or available to, all the members of the child support parent's household and both legal parents of the resident child.

Privacy considerations

To establish a case under this reason, a child support parent may be asked to provide financial information to the Registrar about a third party. For example, the child support parent may be asked to provide evidence to support their claim that their partner (the resident child's legal parent) is unable to earn income as well as information about that person's financial circumstances.

Before providing this information to the Registrar, the child support parent must discuss disclosure of information with the third party about whom the information relates.

See 6.3 for further information on privacy and secrecy.

'Just and equitable' & 'otherwise proper' - the decisions that the Registrar can make

Once a child support parent has established a reason to change their assessment the Registrar must consider whether it would be fair or just and equitable in relation to the children of the child support assessment, both child support parents, the community and the resident child to make a particular decision (CSA Act sections 98C(1)(b)(ii), 98C(3) and 117(4) to 117(9)).

The Registrar's decision will depend on the circumstances of the case and any other reasons being considered.

If this reason is established, the types of decisions that the Registrar can make are set out in 2.6.4 (CSA Act section 98S).

When making a decision under this reason, the Registrar will usually adjust the parent's self-support amount to reflect their responsibility to maintain the resident child. The Registrar will set out the basis for determining this in the decision.

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