Ling and Marden (Child support)

This matter concerned an appeal by the mother, Ling, against a decision of the Federal Circuit Court of Australia regarding child support payable for the parties' two children. The father, Marden, had sought a departure from the standard child support assessment. The primary judge had found that the father had not established the necessary grounds for a departure.

The central legal issue before the court was whether the primary judge had erred in finding that the father had failed to establish that the child support payable under the assessment would be less than the amount of child support that would be a proper and adequate amount for the children, having regard to the child support agreement in place between the parties. This required the court to consider the application of section 117(1)(a) of the *Child Support (Registration and Collection) Act 1988* (Cth).

The Full Court of the Family Court of Australia held that the primary judge had erred in their interpretation and application of section 117(1)(a). The court found that the primary judge had placed undue emphasis on the father's capacity to pay and had failed to adequately consider the terms of the child support agreement, which stipulated a higher amount of child support than the standard assessment. The court reiterated the principle that a child support agreement, while not binding in the same way as a court order, is a significant factor to be taken into account when considering whether a departure from a standard assessment is warranted to ensure a proper and adequate amount of child support is paid.

The Full Court set aside the orders of the Federal Circuit Court and remitted the matter back to that court for redetermination.