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Family law

Child support

Departures from the formula assessment

Child Support Act 1991, ss 96A, 96B, 104

Either parent, can apply for child support to be worked out on a different basis from the standard formula assessment. This is called applying for a “departure” from the formula assessment; when the decision is made by the Family Court it’s called a “Departure Order”.

Who do I apply to if I want a departure decision?

Child Support Act 1991, ss 96B, 96F, 104

In general, you must apply first to Inland Revenue. You can apply to the Family Court for a departure order only if:

  • Inland Revenue has already made a decision on your application for a departure from the formula assessment, or has refused to make a decision because it thinks the issues are too complex and should be left to the Family Court, or
  • either or both parents are already involved in another case that’s going to be heard by the Family Court, and it’s appropriate for the departure application to be heard along with that other case.

What are the reasons for departing from the formula assessment?

Child Support Act 1991, ss 96C, 105

Inland Revenue or the Family Court, depending on who you’ve applied to, can approve your application for a departure decision if it’s satisfied that:

  • one or more of the reasons for a departure have been made out (see below), and
  • departing from the formula assessment would be “just and equitable” for the children and both parents, and would be “otherwise proper”.

These are the specific reasons for departing from a formula assessment:

  • Reduced financial capacity – Your ability to financially support the child is significantly reduced because of any of the following special circumstances:
  • you’re responsible for supporting another child or person, or
  • you’re responsible for supporting another child or person who has special needs, or
  • of commitments that are necessary for you to support yourself or to support any other child or person you’re responsible for.
  • Higher costs of care – The costs of raising the child are significantly affected by any of the following special circumstances:
  • you’re having to pay particularly high costs in order to have contact with the child, or to enable the other parent to have contact with them, or
  • the child has special needs, or
  • the child is being cared for, educated or trained in a particular way that’s expected by either you or the other parent.
  • Special cases involving money or property – The formula assessment would mean that you have to pay an “unjust and inequitable” amount of child support because of special circumstances involving:
  • the income, earning capacity, property or financial resources of either you, the other parent or the child, or
  • any money or property that you’ve previously made or transferred to the child, or to the other parent or another person for the child’s benefit, or
  • the other parent continuing to live in the family home after the two of you separated, if you own or co-own the home.
  • Re-establishment costs – The formula assessment should be departed from to recognise that, at some time within the three years after you separated from the other parent, you earned additional income to meet the costs of re-establishing yourself and any of your dependents after the separation.

Did this answer your question?

Parents, guardians and caregivers

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide initial free legal advice and information.

Oranga Tamariki / Ministry for Children

www.orangatamariki.govt.nz/adoption/adopting-in-nz

Phone: 0508 FAMILY (0508 326 459)
Email: enquiry@ot.govt.nz

This web page has information about the adoption process.

Family Court

www.justice.govt.nz/family

The Family Court website includes information on the topics in this chapter.

Family Court fee waiver forms

www.justice.govt.nz/courts/going-to-court/court-fees/apply-for-help-to-pay-court-fees

Department of Internal Affairs

www.govt.nz/browse/family-and-whanau/adoption-and-fostering/finding-your-birth-parents

This DIA webpage has information on how to obtain original birth certificates for adopted children.

Parents can now register their baby’s birth online at: www.smartstart.services.govt.nz/register-my-baby

“What happens to your children when you part?” (pamphlet)

www.lawsociety.org.nz/for-the-public/common-legal-issues/what-happens-to-your-children-when-you-part
Phone: (04) 472 7837
Email: pamphlets@lawsociety.org.nz

This New Zealand Law Society pamphlet covers guardianship, care of and contact with children, how disputes are resolved, and other child-focused issues. Access the pamphlet online or order hardcopies from the New Zealand Law Society.

Inland Revenue

www.ird.govt.nz/childsupport

Phone: 0800 221 221

Inland Revenue’s Child Support webpage has a wide range of forms and guides for parents and caregivers.

Alternative dispute resolution

www.resolution.institute – Resolution Institute is a community of mediators, arbitrators, adjudicators, restorative justice practitioners and other DR professionals.

www.aminz.org.nz – AMINZ (Arbitrators and Mediators Institute of New Zealand).

There are many kinds of “alternative dispute resolution” that, depending on your personal situation, may be cheaper and more successful than going to the Family Court. These include counselling, mediation and negotiation. You can find out more at the above websites

Aotearoa New Zealand Association of Supervised Contact Services

www.anzascs.org.nz

The ANZASCS website has information about organisations that are approved as providers of supervised contact services.

“Pregnancy Rights: Your legal options before and after pregnancy” booklet

www.communitylaw.org.nz

This booklet contains practical answers to questions about pregnancy and the law, and includes information on sexual health and consent, options after a positive pregnancy test, healthcare, education, housing and more.

Order hard copies from:
Community Law Wellington and Hutt Valley
Phone: (04) 499 2928

Email: publications@wclc.org.nz or visit www.communitylaw.org.nz to buy a copy or access free online.

Also available as a book

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