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‘Special circumstances’ in child support departure applications and the very wealthy

Young, L. (2015) ‘Special circumstances’ in child support departure applications and the very wealthy. Australian Journal of Family Law, 29 (1). pp. 24-42.

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Australia’s formula for calculating child support has an inbuilt ‘cap’, the result of which is that there is a maximum liability for child support in any case. The legislation also provides a process by which parents can seek a departure from the normal application of the formula. There are a number of limited grounds for departure, one of which relates directly to the ‘income, property and financial resources’ of the parents. A question which has arisen in some cases is whether the mere fact of a very high income of a parent is sufficient to establish a ground for departure. All of the grounds for departure require that the applicant show ‘special circumstances’. Given the formula relies on income, and has a cap on the costs of children tied to combined parental income, where a parent is already paying the maximum possible rate of child support, does the mere fact of a very high parental income (or indeed extreme wealth) amount to a special circumstance? Different judicial officers have answered this question differently. This papers considers this question, the case law and argues that a special circumstance requires something more; that is, something more than the normal and intended operation of the formula. Further, the paper identifies flaws in decision making in this area which influence how the provisions are applied more generally.

Item Type: Journal Article
Murdoch Affiliation(s): School of Law
Publisher: LexisNexis
Publisher's Website:
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