Section 79(4) Family Law Act - Capon & Hubert Lawyers & Mediators

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:
1. himself or herself; and
2. 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;
1. any law of the Commonwealth, of a State or Territory or of another country; or
2. 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:
1. that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
2. that it would be:
  1. just and equitable as regards the child, the carer entitled to child support and the liable parent; and
  2. 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:
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 that the parent has a duty to maintain; or
4. 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:
1. because of:
  1. high costs involved in enabling a parent to have contact with the child; or
  2. special needs of the child; or
2. 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:
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, 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:
1. himself or herself; or
2. 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:
1. to:
  1. the child; or
  2. the carer entitled to child support; by the making of, or the refusal to make, the order; and
2. to:
  1. the liable parent; or
  2. 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:
1. any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
2. 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:
1. 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
2. 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:
1. to enable the child to complete his or her education; or
2. 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:
1. to enable the child to complete his or her education; or
2. 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.
1. 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).