117Matters as to which court must be satisfied before making order

#### 117 Matters as to which court must be satisfied before making order Court may make departure order (1) Where: (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 parent’s 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 parent’s 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 parent’s 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 parent’s 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 parent’s 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 parent’s caring responsibilities; or (ii) the parent’s 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. 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.