|
Section 79(4) Family
Law Act
79(4)[Matters to be taken into account] In considering what order
(if any) should be made under this section in proceedings with
respect to any property of the parties to a marriage or either of
them, the court shall take into account;
- the financial
contribution made directly or indirectly by or on behalf of a
party to the marriage or a child of the marriage to the
acquisition, conservation or improvement of any of the property
of the parties to the marriage or either of them, or otherwise
in relation to any of that last-mentioned property, whether or
not that last-mentioned property has, since the making of the
contribution, ceased to be the property of the parties to the
marriage or either of them;
- the
contribution (other than a financial contribution) made directly
or indirectly by or on behalf of a party to the marriage or a
child of the marriage to the acquisition, conservation or
improvement of any of the property of the parties to the
marriage or either of them, or otherwise in relation to any of
that last-mentioned property, whether or not that last-mentioned
property has, since the making of the contribution, ceased to be
the property of the parties to the marriage or either of them;
- the
contribution made by a party to the marriage to the welfare of
the family constituted by the parties to the marriage and any
children of the marriage, including any contribution made in the
capacity of homemaker or parent;
- the effect of
any proposed order upon the earning capacity of either party to
the marriage;
- the matters
referred to in sub-section 75(2) so far as they are relevant;
- any other
order made under this Act affecting a party to the marriage or a
child of the marriage; and
- any child
support under the Child Support (Assessment) Act 1989 that a
party to the marriage has provided, is to provide, or might be
liable to provide in the future, for a child of the marriage.
Section 75(2)
75(2)[Matters] The
matters to be so taken into account are:
- the age and
state of health of each of the parties;
- the income,
property and financial resources of each of the parties and the
physical and mental capacity of each of them for appropriate
gainful employment;
- whether either
party has the care or control of a child of the marriage who has
not attained the age of 18 years;
- commitments of
each of the parties that are necessary to enable the party to
support:
- himself or
herself; and
- a child or
another person that the party has a duty to maintain;
- the
responsibilities of either party to support any other person;
- subject to
subsection (3) the eligibility of either party for a pension,
allowance or benefit under;
- any law of
the Commonwealth, of a State or Territory or of another
country; or
- any
superannuation fund or scheme, whether the fund or scheme
was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being
paid to either party;
- where the
parties have separated or the marriage has been dissolved, a
standard of living that in all the circumstances is reasonable;
- the extent to
which the payment of maintenance to the party whose maintenance
is under consideration would increase the earning capacity of
that party by enabling that party to undertake a course of
education or training or to establish himself or herself in a
business or otherwise to obtain an adequate income;
- the extent to
which the party whose maintenance is under consideration has
contributed to the income, earning capacity, property and
financial resources of the other party;
- the duration
of the marriage and the extent to which it has affected the
earning capacity of the party whose maintenance is under
consideration;
- the need to
protect a party who wishes to continue that party's role as a
parent;
- if either
party is cohabiting with another person , the financial
circumstances relating to the cohabitation;
- the terms of
any order made or proposed to be made under section 79 in
relation to the property of the parties;
- any child
support under the Child Support (Assessment) Act 1989 that a
party to the marriage has provided, is to provide, or might be
liable to provide in the future, for a child of the marriage;
and
- any fact or
circumstance which, in the opinion of the court, the justice of
the case requires to be taken into account.
D. We can
assist you with child support matters by
- Preparing a
draft child support assessment if you have your children's
details and your respective income positions
- advise on the
formula for child support;
- If you need to
depart from the child support formula then the factors are as
set out in the child support assessment Act. Periodic income is
not the only criteria . It is only a formula and other matters
can be considered by an administrative review or by the courts
as set out below.
Section 117
117(1)[Circumstances
where court may make order] Where:
- 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
- the court is
satisfied:
- that one
or more of the grounds for departure mentioned in subsection
(2) exists or exist; and
- that it
would be:
- just
and equitable as regards the child, the carer entitled
to child support and the liable parent; and
-
otherwise proper;
to make a particular order under this Division; the
court may make the order.
117(2)
[Grounds for
departure] For the purposes of subparagraph (1)(b)(i), the grounds
for departure are as follows:
- 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 duty
of the parent to maintain any other child or another person;
or
- special
needs of any other child or another person that the parent
has a duty to maintain; or
-
commitments of the parent necessary to enable the parent to
support:
-
himself or herself; or
- any
other child or another person that the parent has a duty
to maintain; or
- high costs
involved in enabling a parent to have contact with any other
child or another person that the parent has a duty to
maintain;
- that, in the
special circumstances of the case, the costs of maintaining the
child are significantly affected:
- because
of:
- high
costs involved in enabling a parent to have contact with
the child; or
-
special needs of the child; or
- because
the child is being cared for, educated or trained in the
manner that was expected by his or her parents;
- 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
because of:
- the
income, earning capacity, property and financial resources
of either parent or the child; or
- 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.
117(3)
[Costs of access] For
the purposes of subparagraph (2)(a)(iv) and sub-subparagraph (2)(b)(i)(A),
costs involved in enabling a parent to have contact with the child
are not, if those costs are costs of a parent and not costs of
another person, to be taken to be high unless the total of those
costs during a child support year is more than 5% of the child
support income amount for the year in relation to the parent
concerned.
117(4)
[Determination whether
just and equitable to make order] 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:
- the nature of
the duty of a parent to maintain a child (as stated in section
3); and
- the proper
needs of the child; and
- the income,
earning capacity, property and financial resources of the child;
and
- the income,
earning capacity, property and financial resources of each
parent who is a party to the proceeding; and
- the
commitments of each parent who is a party to the proceeding that
are necessary to enable the parent to support:
- himself or
herself; or
- any other
child or another person that the person has a duty to
maintain; and
- the direct and
indirect costs incurred by the carer entitled to child support
in providing care for the child; and
- any hardship
that would be caused:
- to:
- the
child; or
- the
carer entitled to child support; by the making of, or
the refusal to make, the order; and
- to:
- the
liable parent; or
- 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.
117(5)
[Determination whether
otherwise proper to make order] In determining whether it would be
otherwise proper to make a particular order under this Division, the
court must have regard to:
- 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
- the effect
that the making of the order would have on:
- any
entitlement of the child, or the carer entitled to child
support, to an income tested pension, allowance or benefit;
or
- the rate
of any income tested pension, allowance or benefit payable
to the child or the carer entitled to child support.
117(6)
[Proper needs of
child] In having regard to the proper needs of the child, the court
must have regard to:
- the manner in
which the child is being, and in which the parents expected the
child to be, cared for, educated or trained; and
- any special
needs of the child.
117(7)
[Income, earning
capacity etc. of child or parent] In having regard to the income,
earning capacity, property and financial resources of the child or a
parent of the child, the court must:
- have regard to
the capacity of the child or parent to earn or derive income,
including any assets of, under the control of, or held for the
benefit of, the child or parent that do not produce, but are
capable of producing, income; and
- disregard:
- 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
- any
entitlement of the child or the carer entitled to child
support to an income tested pension, allowance or benefit.
117(8)
[Direct and indirect
costs incurred by carer] 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.
117(9)
[Other matters]
Subsections (4) to (8) (inclusive) do not limit other matters to
which the court may have regard
- We can always
put into a clear enforceable form an agreed arrangement and have
it registered with the child support agency as a child support
agreement.
- We can seek
support for a child over 18 in certain circumstances See
section 66L
Section 66L
-
66L(1)[Maintenance for child 18 or over] A court must not make a
child maintenance order in relation to a child who is 18 or over
unless the court is satisfied that the provision of the
maintenance is necessary:
- to enable
the child to complete his or her education; or
- because of
a mental or physical disability of the child.
- 66L(2) [When
maintenance may extend beyond child turning 18] A court must not
make a child maintenance order in relation to a child that
extends beyond the day on which the child will turn 18 unless
the court is satisfied that the provision of the maintenance
beyond that day is necessary:
- to enable
the child to complete his or her education; or
- because of
a mental or physical disability of the child.
- 66L(3)
[Cessation of order] A child maintenance order in relation to a
child stops being in force when the child turns 18 unless the
order is expressed to continue in force after then.
- If you are
eligible we can seek spouse maintenance for you :
See section 72
Section 72
72 A party to a
marriage is liable to maintain the other party, to the extent that
the first-mentioned party is reasonably able to do so, if, and only
if, that other party is unable to support herself or himself
adequately whether ;
- by reason of
having the care and control of a child of the marriage who has
not attained the age of 18 years;
- by reason of
age or physical or mental incapacity for appropriate gainful
employment; or
- for any other
adequate reason, having regard to any relevant matter referred
to in sub-section 75(2).
|