105Matters as to which court must be satisfied before making order

1. Where an application is made to the Family Court under section 104 for an order in relation to a child and the court is satisfied that—

2. 1 or more of the grounds for departure mentioned in subsection (2) exists or exist; and
3. it would be—to make a particular order of the type specified in section 106,—
   1. just and equitable as regards the child, the receiving carer, and the liable parent; and
   2. otherwise proper,—
the court may make the order.

4. For the purposes of subsection (1)(a), the grounds for departure are as follows:

5. that, by virtue of special circumstances, the capacity of either parent to provide financial support for the child is significantly reduced because of—
   1. the duty of the parent to maintain any other child or another person; or
   2. special needs of any other child or another person that the parent has a duty to maintain; or
   3. commitments of the parent necessary to enable the parent to support—
      1. himself or herself; or
      2. any other child or another person whom the parent has a duty to maintain; or
6. that, in the special circumstances of the case, the costs of maintaining the child are significantly affected because—
   1. of high costs incurred by a parent or a receiving carer in enabling a parent or receiving carer to have contact with the child; or
   2. of special needs of the child; or
   3. the child is being cared for, educated, or trained in the manner that was expected by either of his or her parents; or
7. that, by virtue of special circumstances, application in relation to the child of the provisions of this Act relating to formula 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—
   1. the income, earning capacity, property, and financial resources of either parent or the child; or
   2. any payments, and any transfer or settlement of property, previously made (whether under this Act, the Property (Relationships) Act 1976 or otherwise) by the liable parent or a receiving carer to the child, to a liable parent or a receiving carer, or to any other person for the benefit of the child; or
   3. an entitlement of the liable parent or receiving carer to the continued occupancy of a property in which the liable parent or receiving carer has a financial interest; or.

Re-establishment costs situation if income increases

8. that the application in relation to the child of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of child support to be provided by the liable parent for the child in respect of a child support year because—
   1. the adjusted income of a parent of the child for the child support year includes income from relevant additional work (see subsections (3A) to (3C)); and
   2. some or all of the income from relevant additional work has been used, or will be used, by the parent to meet, wholly or partly, actual and reasonable costs incurred to re-establish himself or herself, and any child or other person that he or she has a duty to maintain, after the child's parents ceased to live together in a marriage, civil union, or de facto relationship.

10. For the purposes of subsection (2)(b)(i), costs incurred in enabling a parent or receiving carer to have contact with the child are not to be taken to be high unless the total of those costs during a child support year is more than 5% of the adjusted income for the year of the person incurring the costs.

11. In subsection (2)(d), relevant additional work means work done by the parent during the relevant 3-year period that, in quantity or nature or both, is additional to work that he or she did before the child's parents ceased to live together in a marriage, civil union, or de facto relationship.

12. In subsection (3A), the relevant 3-year period means the 3-year period starting on the date on which the child’s parents ceased to live together in a marriage, civil union, or de facto relationship.

13. For the purpose of calculating that 3-year period, the court may exclude a period or periods of resumed cohabitation with, or each with, the sole or main motive of reconciliation if that period does not exceed, or those periods in aggregate do not exceed, 3 months.

14. The ground in subsection (2)(d) applies only in relation to child support in respect of the child support year starting on 1 April 2016 or a later child support year.

15. In determining whether it would be just and equitable as regards the child, a receiving carer, and the liable parent to make a particular order of the type specified in section 106, the court shall have regard to—

16. the objects of this Act, and, in particular, the nature of the duty of a parent to maintain a child and the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
17. the proper needs of the child, having regard to—
    1. the manner in which the child is being, and in which the parents expect the child to be, cared for, educated, or trained; and
    2. any special needs of the child; and
18. the income, earning capacity, property, and financial resources of the child; and
19. the income, earning capacity, property, and financial resources of each parent who is a party to the proceeding; and
20. the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support—
    1. himself or herself; or
    2. any other child or another person that the parent has a duty to maintain; and
21. the direct and indirect costs incurred by the receiving carer in providing care for the child, including the income and earning capacity foregone by the receiving carer in providing that care; and
22. any hardship that would be caused to—
    1. the child or the receiving carer by the making of, or the refusal to make, the order; or
    2. 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.

23. In having regard to the income, earning capacity, property, and financial resources of the child or a parent of the child, the court must—

24. have regard to the capacity of the child or parent to earn or derive income, including having regard to 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
25. 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.

26. The court may have regard to other matters beyond those specified in subsections (4) and (5).

27. The jurisdiction of the Family Court under this section may be exercised by a Family Court Judge or Family Court Associate, and for the purposes of this section a Family Court Associate has the same powers as a Family Court Judge.