Kelbarch and Kelbarch (Child support)

This matter concerned an application for a child support assessment to be changed, brought by the applicant parent, Kelbarch, against the respondent parent, also named Kelbarch. The dispute centred on whether a departure from the standard child support assessment was warranted due to special circumstances.

The court was required to determine whether the respondent's decision not to work was justified by his state of health, and consequently, whether his earning capacity was not greater than his actual income. The core legal issue was whether these circumstances constituted "special circumstances" sufficient to justify a departure from the standard assessment under the relevant legislation.

Senior Member S De Bono found that the respondent's decision not to work was indeed justified by his mental health condition. The evidence presented established that his earning capacity was not greater than his current income, thereby satisfying the criteria for special circumstances. The Senior Member concluded that the existing assessment did not properly reflect the respondent's actual financial situation due to his health limitations.

Consequently, the decision under review was set aside and substituted with a new assessment that took into account the respondent's justified inability to earn at a higher capacity.