LEAL & O’HEGARTY

In the matter of *Leal & O’Hegarty*, Rees J of the Family Court of Australia considered applications concerning child support, spousal maintenance, and property settlement. The wife sought a departure from the assessed child support payable by the husband, alleging a significant disparity between his declared income and his actual income, which she contended constituted "special circumstances" under the *Child Support (Assessment) Act 1989* (Cth). The wife also sought to enforce arrears of spousal maintenance and unpaid interim property settlement, alleging the husband’s income was procured through fraud, though the court noted there was no property left for division and the husband's financial future was uncertain.

The court was required to determine whether the disparity in the husband's income amounted to "special circumstances" justifying a departure from the child support assessment under section 117(2)(c)(ia) of the *Child Support (Assessment) Act 1989* (Cth), and if so, whether it was just and equitable to make a departure order. Additionally, the court had to consider whether to exercise its discretion to enforce the spousal maintenance order, given the husband's uncertain financial position and the wife's allegations of fraud.

Rees J found that the significant disparity between the husband's assessed income and his actual income did constitute "special circumstances" for the purpose of section 117(2)(c)(ia) of the *Child Support (Assessment) Act 1989* (Cth). The court determined that it was just and equitable and otherwise proper to make a departure order, resulting in a revised child support rate of $66.66 per child per week. Regarding the enforcement of spousal maintenance, the court declined to exercise its discretion to enforce the existing orders, discharging them as at the date to which they had been paid. The court also vacated the interim property settlement orders to the extent they remained unpaid.