CHILD SUPPORT.........................................................................

2
HOW PAYMENTS WORKED OUT:..........................................................2
NEW CHILD SUPPORT FORMULA.........................................................2
Adjusted Taxable Income............................................................................. 2
The different formulae................................................................................. 2
DEPARTING FROM THE FORMULA & ORDERS FOR NON-PERIODIC AMOUNTS....2
Part 6A Admin system for departure applications.....................................2
Considerations in making departure orders................................................3
117 MATTERS AS TO WHICH COURT MUST BE SATISFIED BEFORE MAKING ORDER.........3
CSA 10 reason summary for change of assessment.................................7
IN MARRIAGE OF GYSELMAN [1992]...................................................................8
Form of Departure....................................................................................... 8
118 ORDERS THAT MAY BE MADE UNDER DIVISION................................................8
Orders for lump sums or non-periodic amounts..........................................9
123A ORDERS FOR PROVISION OF CHILD SUPPORT IN THE FORM OF LUMP SUM PAYMENT
TO BE CREDITED AGAINST AMOUNTS PAYABLE UNDER LIABILITY..................................9
124 ORDERS FOR PROVISION OF CHILD SUPPORT OTHERWISE THAN IN FORM OF
PERIODIC AMOUNTS PAID TO CARER ENTITLED TO CHILD SUPPORT............................10
IN MARRIAGE OF BOLTON [1992].....................................................................11
CHILD SUPPORT AGREEMENTS..........................................................11
New Legislation changes...........................................................................12
80C MAKING BINDING CHILD SUPPORT AGREEMENTS............................................12
COLLECTION OF MAINTENANCE AND CHILD SUPPORT..............................13
SPOUSAL MAINTENANCE.......................................................... 13
AUSTRALIAN APPROACHES:.............................................................13
IN THE MARRIAGE OF BEVAN [1995]................................................................13
Points:....................................................................................................... 13
KEACH AND KEACH [2011]............................................................................. 14
Re spousal maintenance...........................................................................14
After threshold established........................................................................14
PERSONAL CIRCUMSTANCES: 75 (2)..................................................14
age and health of parties 75(2)(a)............................................................14
Income property and financial resources 75(2)(b).....................................15
Commitments necessary for self support & for support of any children or
other person party has duty to maintain. 75(2)(d)....................................15
Eligibility for social security or super pension, benefit, allowance s 75(2)(f)
.................................................................................................................. 15
Standard of living that in all circumstances is reasonable 75(2)(g)...........15
Extent to which maintenance may improve earning capacity s 75(2)(h). .15
Financial Circumstances of Cohabitation s 75(2)(m).................................15
RE: F [1982]............................................................................................... 16
OBLIGATIONS TO OTHERS S 75 CONTD..............................................16
Whether either party has care or control of child of marriage under 18 s
75(f)(c)...................................................................................................... 16
Responsibilities of either party to support another person s 75(2)(e).......16
Protecting Creditors s 75(2)(ha)................................................................16
Protecting the parental role s 75(2)(l).......................................................16
Terms of any property order s 75(2)(n).....................................................17
Child support liability s 75(2)(na)..............................................................17
PAST CIRCUMSTANCES OF THE MARRIAGE...........................................17

Contributions of the applicant to income, earning capacity, property etc s

75(2)(j)...................................................................................................... 17
Duration of the marriage and impact on earning capacity s 75(2)(k)........17
CONDUCT AND FAULT IN MARITAL PROCEEDINGS...................................17
Other circumstances required by justice s 75(2)(o)...................................17

Child Support
There are two types of payments: agency collect and private collect.
Agency collect: where payer pays CS to the agency which passes it on to the payee.
Private collect: Agency makes assessment and payer transfers directly to payee.
*Legislation is the Child Support (Assessment) Act 1989 (Cth).

How payments worked out:

By CSA based on tax returns where they have been filed.

If a tax assessment hasnt been filed then estimates are derive from employer
records or other information available to the agency.

New Child Support Formula

Adjusted Taxable Income

Basis of CSS is to calculate child support from the most recently available tax
returns of payer and payee.
Where a form hasnt been filed, then reference to previous tax returns may be
used and adjusted for inflation, employer records or deemed income set by
statute.
Legislation provides that certain legitimate tax deductions should be ignored.

The different formulae

Each formula depends on individual circumstances of families.

Departing from the Formula & Orders for Non-Periodic Amounts

Although the objective for CSS was to remove exercise of the courts discretions an
practitioners from the area of child maintenance, deviations are recognised in that the
formula may not cater justly in all circumstances, so it was always contemplated that
the courts have a role in exercising discretion via Part 7, Division 4 departure
orders.
Part 6A Admin system for departure applications
This section gives Child Support Registrar the power to determine that the
formula be departed from, although not to make provision for non-periodic
amounts.
Process is the COA Change of assessment.
A decision is made by a senior case officer, SCO who is independent of the
agency but contracted to it for this purpose. If either parent objects to the
SCOs decision, the objection will in first instance be determined by an officer
of the Agency. Appeal from such a decision goes to Social Security Appeals
Tribunal and appeal from SSAT is only on a point of law.
Considerations in making departure orders
Section 117 is the key section, creates three stages that one must work through before
deciding that departure should be ordered.
1. A departure ground must exist.
2. It must be just and equitable to make an order.
3. It must be otherwise proper to make the order.
A failure to address each of the above will make an order vulnerable to appeal: Will v
Ballard
117 Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
3

(a) application is made to a court having jurisdiction under this Act for
an order under this Division in relation to a child in the special circumstances of the
case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in
subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled
to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are
as follows:
(a) that, in the special circumstances of the case, the capacity of either
parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another
person; or
(ii) special needs of any other child or another person that the
parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to
support:
(A) himself or herself; or
(B) any other child or another person that the parent has a
duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or
communicate with, any other child or another person that the parent has a duty to
maintain;
(aa) that, 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
responsibility of the parent to maintain a resident child of the parent (see
subsection (10));
(b) that, in the special circumstances of the case, the costs of
maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend
time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in
the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation
to the child of the provisions of this Act relating to administrative assessment of child
support would result in an unjust and inequitable determination of the level of
financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial
resources of the child; or
(ia) because of the income, property and financial resources of
either parent; or
(ib) because of the earning capacity of either parent; or

(ii) because of any payments, and any transfer or settlement of

property, made or to be made (whether under this Act, the Family Law Act 1975 or
otherwise) by the liable parent to the child, to the carer entitled to child support or to
any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parents costs involved in enabling the parent to care for a child can
only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that
have been or will be incurred, during a child support period, total more than 5% of the
amount worked out by:
(a) dividing the parents adjusted taxable income for the period by 365;
and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can
be taken into account for the purposes of subsection (2B) are costs related to travel to
enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A) The ground for departure mentioned in subparagraph (2)(b)(ib) is taken
not to exist unless:
(a) the costs are incurred by a parent or a non-parent carer; and
(b) the child is younger than 12 at the start of the child support period.
(3B) Child care costs for a parent can only be high for the purposes of
subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of
the amount worked out by:
(a) dividing the parents adjusted taxable income for the period by 365;
and
(b) multiplying the quotient by the number of days in the period.
(3C) Child care costs for a non-parent carer can only be high for the purposes
of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of
the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4) In determining whether it would be just and equitable as regards the child,
the carer entitled to child support and the liable parent to make a particular order
under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in
section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the
child; and
(d) the income, property and financial resources of each parent who is a
party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding;
and
(e) the commitments of each parent who is a party to the proceeding that
are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to
maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child
support in providing care for the child; and
(g) any hardship that would be caused:

(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent
has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the
making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular
order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in
section 3) and, in particular, the fact that it is the parents of a child themselves who
have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child
support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit
payable to the child or the carer entitled to child support.
Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have
regard to:
(a) the manner in which the child is being, and in which the parents
expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
Income, earning capacity, property and financial resources
(7) In having regard to the income, earning capacity, property and financial
resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income,
including any assets of, under the control of, or held for the benefit of, the child that
do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources
of any person who does not have a duty to maintain the child, or who has such a duty
but is not a party to the proceeding, unless, in the special circumstances of the case,
the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support
to an income tested pension, allowance or benefit.
(7A) In having regard to the income, property and financial resources of a
parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including
any assets of, under the control of, or held for the benefit of, the parent that do not
produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources
of any person who does not have a duty to maintain the child, or who has such a duty
but is not a party to the proceeding, unless, in the special circumstances of the case,
the court considers that it is appropriate to have regard to them; and

(ii) any entitlement of the child or the carer entitled to child support
to an income tested pension, allowance or benefit.
(7B) In having regard to the earning capacity of a parent of the child, the court
may determine that the parents earning capacity is greater than is reflected in his or
her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or
her employment or other work below the normal number of hours per week that
constitutes full-time work for the occupation or industry in which the parent is
employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or
working pattern; and
(b) the parents decision not to work, to reduce the number of hours, or
to change his or her occupation, industry or working pattern, is not justified on the
basis of:
(i) the parents caring responsibilities; or
(ii) the parents state of health; and
(c) the parent has not demonstrated that it was not a major purpose of
that decision to affect the administrative assessment of child support in relation to the
child. [ where someone doesnt work, although capable to do so, because they want to
reduce their child support]
Direct and indirect costs in providing care
(8) In having regard to the direct and indirect costs incurred by the carer
entitled to child support in providing care for the child, the court must have regard to
the income and earning capacity foregone by the carer entitled to child support in
providing that care.
Subsections not to limit consideration of other matters
(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the
court may have regard.
Definition of resident child
(10) For the purposes of this section, a child is a resident child of a person
only if:
(a) the child normally lives with the person, but is not a child of the
person; and
(b) the person is, or was, for 2 continuous years, a member of a couple;
and
(c) the other member of the couple is, or was, a parent of the child; and
(d) the child is aged under 18; and
(e) the child is not a member of a couple; and
(f) one or more of the following applies in respect of each parent of the
child:
(i) the parent has died;
(ii) the parent is unable to support the child due to the ill-health of
the parent;
(iii) the parent is unable to support the child due to the caring
responsibilities of the parent; and
(g) the court is satisfied that the resident child requires financial
assistance.

CSA 10 reason summary for change of assessment for exam.

Costs of maintaining child are significantly affected by high costs of enabling

a parent to spend time with or communicate with child
Costs of maintaining child are significantly affected by high costs associated
with childs special needs.
Costs of maintaining child are significantly affected by high costs of caring
for, educating or training the child in a way both parents intended.
The child support assessment is unfair because of the childs income, earning
capacity, property or financial resources.
The child support assessment is unfair because the payer has paid or
transferree money, goods or property to the child, payee or third party for
benefit of the child.
The costs of maintaining a child are significantly affected by the payees high
child car costs for the child and child is under 12 years.
The parents necessary expenses significantly affect their capacity to support
the child.
The child support assessment is unfair because of the income, earning
capacity, property or financial resources of one or both parents.
The parents capacity to support the child is significantly affected by:
their legal duty to maintain another child or person,
their necessary expenses in supporting another child or person they have legal
duty to maintain.
Their high costs of enabling them to spend time with or communicate with
another child or person they have a legal duty to maintain.
The parents responsibility to maintain a resident child significantly reduces
their capacity to support the child support child.

In Marriage of Gyselman [1992]

H applied for departure order under s 117 of CSA to reduce his liability for paying
child support for his three children. Trial judge based his departure order upon high
costs of access: s 117 (2)(b)(i)(a) and upon commitments of the husband to enable
him to support himself: s 117(2)(a)(iii). H also relied upon s 117(2)(c)(i) relating to
his income, earning capacity and property and financial resources.
W applied to court under s 102 for leave to appeal.
Held: leave to appeal granted.
Nicholson CJ, Fogarty an Nygh JJ:
S 117 sets out grounds.
Although there is no precise meaning for in the special circumstances, this is
drawn from facts of the case that establish something out of ordinary or
special.
The intention of the legislature is that the court not interfere with the admin
formula in ordinary run of cases.
The section sets out three categories of grounds.

In s 117 (4), there are factors that are to be considered, but which may overlap
with subs (2) an some in subs (4).
Its an essential part of s 117 to carry out the obligation under sub (4), however
it doesnt mean that its necessary in each case to slavishly go through each
paragraph. The extent to which its necessary to do so depends on the facts an
conduct of the individual case.
One or more grounds of departure are met, would be just and equitable and
otherwise proper. [exam relevant]

Form of Departure
118 Orders that may be made under Division
(1) The orders that a court may make under this Division are as follows:
(a) an order varying the annual rate of child support payable by a parent;
(b) an order varying a parents or non-parent carers cost percentage for
a child;
(c) an order varying a parents child support income;
(d) an order varying the parents combined child support income;
(e) an order that:
(i) the column in the Costs of the Children Table that covers a
parents child support income or combined child support income that is, or is ordered
to be, greater than 2.5 times the annualised MTAWE figure for the relevant June
quarter, is the column headed 2 to 2.5; and
(ii) the column is to apply as if the second dollar amount in the
heading to that column did not apply;
(f) an order varying a parents child support percentage;
(g) an order varying a parents adjusted taxable income;
(h) an order varying a parents relevant dependent child amount or
multi-case allowance;
(i) an order varying a parents self-support amount;
(j) an order varying the costs of the children.
(2) An order under this section may make different provision in relation to
different child support periods and in relation to different parts of a child support
period.
(2B) A court may only make an order under this Division in respect of a day in
a child support period, being a day that is more than 18 months earlier than the day on
which the application for the order is made under section 116, if the court has granted
leave under section 112 for the order to be made.
(2C) If the court has granted leave under section 112, the court may only make
an order under this Division in respect of a day in a child support period if the day is
within the period specified by the court, under subsection 112(6), in the order granting
the leave.
(3) If the court makes an order under this section, the court must:
(a) give reasons for making the order (including reasons for its
satisfaction as required by paragraph 117(1)(b)); and
(b) cause the reasons to be entered in the records of the court.
(4) Subsection (3) does not apply in relation to an order if:
(a) it is an order made by consent; and

(b) the carer entitled to child support concerned is not in receipt of an

income tested pension, allowance or benefit.
(5) A contravention of subsection (3) in relation to an order does not affect
the validity of the order.
Orders for lump sums or non-periodic amounts.
There are two options under s 123A and 124: lump sum or non periodic amount.
Order under s 123A is always in substitution for periodic sum, but an order under s
124 may be in substitution for periodic sum but in special circumstances be additional
to it.
123A Orders for provision of child support in the form of lump sum payment to be
credited against amounts payable under liability
(1) The court may make an order that a liable parent provide child support for
a child to a carer entitled to child support in the form of a lump sum payment to be
credited against the amount payable under the liability under the relevant
administrative assessment if:
(a) the carer entitled to child support or the liable parent makes an
application to a court under paragraph 123(1)(b); and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child
support and the liable parent; and
(ii) otherwise proper;
to make an order under this section; and
(c) the amount of the lump sum payment equals or exceeds the annual
rate of child support payable for the child under the administrative assessment.
Note:
If the court makes such an order, the lump sum payment is credited under
section 69A of the Registration and Collection Act against the amount payable under
the liable parents liability (rather than reducing the annual rate of child support
payable under the administrative assessment).
(2) A lump sum payment may include a payment by way of transfer or
settlement of property.
(3) An order under subsection (1):
(a) must specify the amount of the lump sum payment; and
(b) must specify that the lump sum payment is to be credited against
100%, or another specified percentage that is less than 100%, of the amounts payable
under the liability.
(4) In determining the application made under paragraph 123(1)(b), the court
must have regard to:
(a) the administrative assessment; and
(b) any determination in force under Part 6A (departure determinations)
in relation to the child, the carer entitled to child support and the liable parent; and
(c) any order in force under Division 4 of this Part (departure orders) in
relation to the child, the carer entitled to child support and the liable parent; and
(d) whether the carer entitled to child support is in receipt of an income
tested pension, allowance or benefit; and
(e) if the carer entitled to child support is not in receipt of such a
pension, allowance or benefitwhether the circumstances of the carer are such that,
10

taking into account the effect of the order proposed to be made by the court, the carer
would be unable to support himself or herself without an income tested pension,
allowance or benefit.
(5) In determining whether it would be just and equitable as regards the child,
the carer entitled to child support and the liable parent to make an order under
subsection (1), the court must have regard to the matters mentioned in
subsections 117(4), (6), (7), (7A) and (8).
(6) In having regard to the earning capacity of a parent of the child under
paragraph 117(4)(da), the court may determine that the parents earning capacity is
greater than is reflected in his or her income for the purposes of this Act only if the
court is satisfied as mentioned in subsection 117(7B).
(7) In determining whether it would be otherwise proper to make an order
under subsection (1), the court must have regard to the matters mentioned in
subsection 117(5).
(8) Subsections (4), (5), (6) and (7) do not limit the matters to which the
court may have regard.
124 Orders for provision of child support otherwise than in form of periodic
amounts paid to carer entitled to child support
(1) Where:
(a) a carer entitled to child support or a liable parent makes an
application under paragraph 123(1)(a); and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child
support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the
child otherwise than in the form of periodic amounts paid to the carer entitled to child
support;
the court may make the order.
(2) In determining the application, the court must have regard to:
(a) the administrative assessment in force in relation to the child, the
carer entitled to child support and the liable parent; and
(aa) any determination in force under Part 6A (departure determinations)
in relation to the child, the carer entitled to child support and the liable parent; and
(b) any order in force under Division 4 (departure orders) in relation to
the child, the carer entitled to child support and the liable parent; and
(c) whether the carer entitled to child support is in receipt of an income
tested pension, allowance or benefit or, if the carer entitled to child support is not in
receipt of such a pension, allowance or benefit, whether the circumstances of the carer
are such that, taking into account the effect of the order proposed to be made by the
court, the carer would be unable to support himself or herself without an income
tested pension, allowance or benefit.
(3) In determining whether it would be just and equitable as regards the child,
the carer entitled to child support and the liable parent to make an order under
subsection (1), the court must have regard to the matters mentioned in
subsections 117(4), (6), (7), (7A) and (8).
(3A) In having regard to the earning capacity of a parent of the child under
paragraph 117(4)(da), the court may determine that the parents earning capacity is
greater than is reflected in his or her income for the purposes of this Act only if the

11

court is satisfied as mentioned in subsection 117(7B).

(4) In determining whether it would be otherwise proper to make an order
under subsection (1), the court must have regard to the matters mentioned in
subsection 117(5).
(5) Subsections (2), (3), (3A) and (4) do not limit the matters to which the
court may have regard.
*Note, no 69A in current legislation.

In Marriage of Bolton [1992]

Where wife has cancer.
Two points in this case:
How it is possible to depart from formula.
To decide that the liability should be discharged by way of lump sum payment.
This is a case where the husband left his job to avoid paying child support. Wife
sought a departure after the admin assessment of child support of zero dollars, which
was deemed unjust and inequitable by Cohen J.
Evidence provided by mother include all costs related to school for child, home costs
such as food, etc. Then there is the mothers income per fortnight.
Judge not impressed by husbands manipulation tactics to avoid paying child support,
so in this scenario, the lump sum is an option to avoid these probable issues that may
arise.
Lump sum will be equivalent to two years of child support

Child support agreements

Tool for lawyers, provide means by which school fees, health insurance and
other similar things can be dealt with as part of a property/financial settlement.
Facilitate private ordering.
Lump sum payments can be organised through agreements
An application is made to the Registrar to accept a child support agreement
and the registrar must accept it if it is properly made complies with
formalities.
If the provisions in the agreement concern periodic payments, they take effect
as if they were a departure order by consent.
If provisions concern non periodic payments, then they take effect as if they
were a substitution order by consent, s 95.

New Legislation changes

2 types of agreements.
Limited child support: in writing, signed but no need for legal advice: s 80E.
They must be for a periodic sum that is not lower than what the formula would
provide. They may be terminate if there is at least 15% change in child support
payers income which was not contemplated at time of agreement.

12

Binding child support agreements are to replicate the effect of binding

financial agreements and require independent legal advice: s 80C. They can be
terminated by agreement, s 80, but less easy to set aside, s 136.

80C Making binding child support agreements

(1) An agreement is a binding child support agreement if:
(a) the agreement is binding on the parties to the agreement in
accordance with subsection (2); and
(b) the agreement complies with subsection 81(2).
(2) For the purposes of subsection (1), an agreement is binding on the parties
to the agreement if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the parties to the agreement; and
(c) the agreement contains, in relation to each party to the agreement, a
statement to the effect that the party to whom the statement relates has been provided,
before the agreement was signed by him or her, as certified in an annexure to the
agreement, with independent legal advice from a legal practitioner as to the following
matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice
was provided, to the party of making the agreement; and
(d) the annexure to the agreement contains a certificate signed by the
person providing the independent legal advice stating that the advice was provided;
and
(e) the agreement has not been terminated under section 80D; and
(f) after the agreement is signed, either the original agreement or a copy
of the agreement is given to each party.
Note:
For the manner in which the contents of a binding child support agreement
may be proved, see section 48 of the Evidence Act 1995.
*strict compliance is necessary. Has to contain 80(2)(c)

Collection of Maintenance and Child Support

Both child support assessments an child support agreements are registrable

maintenance liabilities, i.e. they may be registered with the CSA.
Purely voluntary spousal maintenance or child maintenance is not capable of
being collected through the system.
Once a liability is registered, the debt becomes a debt to the Commonwealth,
not the payee and so only the Commonwealth can enforce it: s 30. If the payer
is not physically present in Australia then the liability may be enforce through
reciprocal arrangements with jurisdictions overseas.
If payer avoids: garnishing, etc.

Spousal Maintenance

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Australian Approaches:
In the Marriage of Bevan [1995]
Parties had been married for 32 years. 3 children were over age of 18 at date of
hearing. At date of hearing, H was 51, self employed and W aged 51 in part time
employment, receiving interim spousal maintenance of $175 per week.
Asset: marital home at $280,000
Hs super: 53K current value, but $166K upon vestment.
Trial judge made order: parties contributions were equal, adjustments in favour of s
75(2), house division: W 150K and H 100K and continuation of spousal maintenance
husband appealed against orders.
Held: appeal allowed in part, maintenance of 175 per week, altered to 50 per week.
What an award of maintenance requires:
A threshold finding under s 72; [s 72(1)(a-c)] concerned with prospective
factors.
Consideration of ss 74 and s 75(2)(n);
No fettering principle that pre-separation standard of living must automatically
be awarded where the respondents means permit and
Discretion exercise in accordance with the provisions of s 74 with reasonable
in the circumstances as a guiding principle.
Points:
Need measured against the ability to pay the party called upon to pay is reasonably
able to do so and that other party is unable to support themselves adequately.
In the course of making a maintenance order, the court is bound to consider the
proposed property orders and their effect either on wifes needs or the husbands
capacity to pay maintenance.
Keach and Keach [2011]
Where one of the submissions from W was to receive $1350 per week of spousal
maintenance.
Wife had one primary school age child and one pre school aged child, studying by
correspondence. But having the care of the children did not prevent her from seeking
employment. Also the children were placed in child care, so there had been ample
opportunity for casual or part time employment
Re spousal maintenance
When comparing the wifes income with her expenditure, she has a need for
maintenance, but judge does not accept that it is a need that arises by reason of her
having the care and control of a child of the marriage or her age or incapacity for
gainful employment or for any other adequate reason. So does not satisfy the
threshold test:

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She had children in childcare full time.

Has capacity to have casual employment and did have capacity to have gainful
employment, but chose not to.

Although the wife may be able to establish a need for $1350 per week, the evidence is
that the husband is not reasonably able to pay the amount to the wife. This is based
on records provided.
Claim for maintenance fails on basis that the husband cannot reasonable afford the
amount sought.

After threshold established

After this has been satisfied, court may make orders as it thinks proper via s 74.
What is proper: determined in light of factors listed in s 75(2). Broad application.

Personal Circumstances: 75 (2)

age and health of parties 75(2)(a)

May be used to justify maintenance for middle aged women where it is not
reasonable to expect them to seek paid work after a lifetime of homemaking.
This state and health doesnt have to be linked to the marital relationship.

Income property and financial resources 75(2)(b)

Concerned with comparing the relative financial positions of the parties to the
marriage.
Important in maintenance but also property adjustments due to the broad range
of financial resources that it can include.
Its relevant under this section to take into account a partys future entitlement
to superannuation, a beneficial interest under a discretionary trust or a
prospective inheritance where the person from whom the inheritance is
anticipated is terminally ill.
Spousal maintenance may be the only avenue to do justice when there is little
existing property, but considerable financial resources: Marriage of Best
where H has little property but high income.
Commitments necessary for self support & for support of any children or other
person party has duty to maintain. 75(2)(d)

This justifies court looking into claims of higher self support requirements, i.e.
duty to children.
About the payers duty to maintain another child, not the resident parents
entitlement to child support which is covered under CSS: Marriage of Stein.

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Eligibility for social security or super pension, benefit, allowance s 75(2)(f)

This is subject to s 75(3) which requires court to disregard the applicants entitlement
to any income tested social security. Policy is that a womans entitlement is ignored,
therefore has fewer resources and man pays more, but this type of benefit is relevant
for the payer as is any pension received from super fund.

Standard of living that in all circumstances is reasonable 75(2)(g)

This is a relative assessment. For example, wife used to a high standard and husband
has the financial resources may receive order to maintain this standard or close to it or
approximate.
Extent to which maintenance may improve earning capacity s 75(2)(h)
Directs the court to take account of rehabilitative function of maintenance.
E.g. In the Marriage of Hope: after 22 yrs of marriage a woman was awarded
maintenance to enable her to complete a training course after which she would be slef
supporting after two years.
Financial Circumstances of Cohabitation s 75(2)(m)
Re: F: wife was cohabitating with man who made no financial contribution to the
household, though able to do so. She applied for maintenance for her husband,
Fogarty J refused her application.
Re: F [1982]
Wife forms relationship with Mr T toward end of marriage, after separation he starts
cohabiting with her each weekend he is on leave from army. So JJ of view they were
in a de facto relationship, but the couple disagreed and referred to the absence of Mr
Ts financial contributions, but this doesnt mean that the wife may continue to
impose upon her husband the responsibility for her support in those circumstances.
Relevant section here: s 75 (2)(m), if a party whose maintenance is under
consideration is cohabiting with another person, the financial circumstances relating
to cohabitation. The financial circumstances relating to cohabitation are not confined
to any actual financial arrangements between the relevant persons: it may include
financial arrangements that would be appropriate in those circumstances.
Inappropriate for wife to live in a de facto relationship with another person,
who contributes nothing to that household even though able to do so, and still
expect the husband to pay for her and the household.
He is obliged to contribute for the children, but not obliged to contribute to the
support of Mr T and wifes maintenance.

Obligations to Others s 75 contd

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Whether either party has care or control of child of marriage under 18 s 75(f)(c)
Care and control seems to be a non technical term it doesnt require a court order.
The fact that either party has responsibility for a child who is not a chil of the
marriage is still relevant.
Responsibilities of either party to support another person s 75(2)(e)
Doesnt solely relate to duties. Paragraph d and e raise difficult questions about the
balance between first and subsequent families of the payer.

Protecting Creditors s 75(2)(ha)

Requires court to consider the effect of any proposed order on the ability of a creditor
of a party to recover the creditors debt.
Protecting the parental role s 75(2)(l)
Very little case law here.
Effect is that where there are no dependent children a woman is expected to make
genuine efforts to find employment. Where there are children, the court scrutinizes
less.
Terms of any property order s 75(2)(n)
Requires the court to take into account what property order has been made or is
proposed to be made.
Child support liability s 75(2)(na)
Court to take account both of fact that non resident parent will have less resources to
pay for spousal maintenance because of child support and that there is undoubtedly an
improvement in the financial position of carers under that scheme.

Past Circumstances of the Marriage

Contributions of the applicant to income, earning capacity, property etc s 75(2)(j)
Only provision that looks back to contributions. Relevant where one partyer has
worked in order to pay the others way through education. But there is still a
requirement that an applicant satisfy the threshold test and this limits the sorts of cases
in which spousal maintenance can be used to compensate for past contribution.

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Duration of the marriage and impact on earning capacity s 75(2)(k)

In context of spousal maintenance, scope is limited by threshold requirement of s 72

Conduct and Fault in Marital Proceedings

Other circumstances required by justice s 75(2)(o)
One of the issues that court has had to deal with is whether this paragraph enables
questions of matrimonial fault to be introduced. None of the relevant paragraphs
makes any mention of fault based considerations, although neither does any
specifically say that matrimonial fault is irrelevant. But its assumed, with
introduction of no fault divorce, the previous punitive use of relief would have no
place.

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