Child Support – Parents Care of a Child – Child at Boarding School

01/11/2016

The Federal Court of Australia considered the basis of the calculation as to each parents’ percentage of care in an appeal from a determination of the Child Support Registrar.  The percentage of care issue determines in part the child support payable.  This particular case involved a dispute between a mother and father whose child attended Boarding School.

Child Support payable is dealt with under the Child Support (Assessment) Act 1989 (“Assessment Act”) which determines an amount a parent may be required to pay for child support.  Section 54A of the Assessment Act refers to a care period and how care may be calculated based on the number of nights that the Registrar is satisfied that the child was or is likely to be in the care a person during that care period.  Section 54A(3) states that for the purpose of this section a child cannot be in the care of more than 1 person at the same time.

Generally the belief of many that the calculation of the child support depends on the number of nights that a child stays with either parent.  This fundamentally is a calculation pursuant to Section 54A.

However, the case referred to above, the Court confirmed that the Registrar is not bound to calculate the parents’ percentage of care based on the number of nights the child is with one parent or the other.  There are many issues that arise and in those cases (such as where the child spends significant time with other members of the family or for example, at Boarding School, it is critical that when preparing cases as to the appropriate child support or an appeal from an assessment, proper care as to the evidence required must be given as to the facts to establish the actual care that each of the parents had or will likely have during a care period.

There are circumstances in which the number of nights basis as set out in Section 54A is inappropriate for example when the child attends a Boarding School.  The Court held there was no obligation on the Child Support Agency to determine the matter based on Section 54A.  Further the restriction in Section 54A(3) namely that a child cannot be in the care of more than one person at the same time does not apply in the determination of the matter.  There are many relevant issues where the child does not stay with the either parent for many nights during any relevant period.

Watson & Watson and our experienced Solicitors can assist you in all matters relating to family law issues in particular matters that do not squarely fit within one generalised process.  If you have circumstances which are significantly different to the normal situation be careful that you obtain the proper advice before you proceed with an Application for Assessment of Case.  It is critical that the appropriate evidence be put before the appropriate Tribunal in the determination of the matter.

If you have any queries please telephone Watson & Watson experienced family Lawyers contacting Richard Watson or his Personal Assistant Shereen DaGloria for advice.

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