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Departure orders

Assessment criteria

For legal aid to be granted to make an application for a departure order in the FMC the following tests must be satisfied:

  • The applicant meets the means test, and
  • The Child Support Agency have made an objection decision that has not been an appealed to the SSAT
  • The child support assessment periods relate to a period more than 18 months earlier but not more than seven years earlier
  • There are grounds for a departure order to be made, and
  • There is a reasonable explanation for delay in appealing the CSA’s objection decision, and
  • The applicant will suffer hardship if leave is not granted to make the departure application, and
  • The applicant has filed tax returns (if required) for the relevant child support assessment periods, and
  • The applicant meets the merits test.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • a completed and signed Legal Aid Queensland application form
  • proof of income and assets (refer to the means test).

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system attaching:

  • proof of income and assets (refer to the means test).

The following documents are retained on file but may be requested by Legal Aid Queensland:

  • a completed and signed Legal Aid Queensland application form.

Interpretation

The applicant cannot adequately represent themselves

Legal Aid Queensland will only consider that an applicant cannot adequately represent themselves if the applicant meets the commonwealth legal aid service priorities - special circumstances of the applicant priorities.

There are grounds for a departure order to be made

The grounds for departure are the same grounds as applying to the CSA for a change of administrative assessment. These are:

  • Reason 1. The costs of maintaining a child are significantly affected by high costs of enabling a parent to spend time with, or communicate with, the child.
  • Reason 2. The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs.
  • Reason 3. The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended.
  • Reason 4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
  • Reason 5. The child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child.
  • Reason 6. The costs of maintaining a child are significantly affected by the high child care costs for the child (and the child is under 12 years of age).
  • Reason 7. The parent’s necessary expenses significantly affect their capacity to support the child.
  • Reason 8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
  • Reason 9. The parent’s capacity to support the child is significantly affected by:
    • their legal duty to maintain another child or person
    • their necessary expenses in supporting another child or person they have a legal duty to maintain
    • their high costs of enabling them to spend time with or communicate with, another child or person they have a legal duty to maintain.
  • Reason 10. The parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child support child.

The child support assessment periods relate to a period more than 18 months earlier but not more than seven years earlier

Up to 18 months earlier

The CSA determines changes of assessments for periods up to 18 months earlier. This is done through the change of assessment and objection process. These are a free internal review processes. There is no available funding to assist applicants with preparation and representation.

The CSA can not change the assessment for a period more than 18 months earlier.

If parties dispute the outcome of the objection, they may apply to the SSAT. The SSAT is also restricted to the 18 month time limit.

More than 18 months earlier

In order to change an assessment that is more than 18 months old, the applicant must commence court proceedings for a departure order. If the period in dispute includes periods that are both less than and more than 18 months earlier, and it is the same issue, the matter can be dealt with by the court at the same time.

The court can not go back more than seven years from the date of the court application.

The applicant has filed tax returns (if required) for the relevant child support assessment periods

The applicant’s income is used in formula for calculating the administrative assessment. In order for the court to determine the administrative assessment is incorrect, the court will need to take into account the applicant’s income. For this reason, it is a requirement that applicant’s have filed tax returns as required by the ATO.

Allocation of a solicitor

Applications to make an application for a departure order will be referred to the in-house family law team unless there is a conflict of interest.

Grant(s) of aid

The grant of aid that issues to read material is CS8.

Extension(s) of aid

The grant of aid that issues to apply for or respond to court proceedings is CS9.

The grant of aid that issues to engage a private investigator to undertake location searches CS6.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

Related links and information

Last updated 24 February 2017

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