Question: My former partner and I are in a dispute about child support.

We share the care of our 7-year-old daughter. My former partner wants to send her to a private boarding school and she also wants me to pay for our daughter’s horse, including the grazing and other ongoing expenses.

She has applied for an administrative review for child support to increase the amount to cover these expenses. Can she do this?

I am finding the whole process draining, particularly as I have other issues I am trying to deal with at the moment. I am due to go into a treatment centre for substance abuse for three months. During this time, I will be taking unpaid leave and will have no income. Do I still need to pay child support when I don’t have an income?

Answer: It sounds as though you are currently paying child support pursuant to a formula assessment.

The IRD’s formula assessment looks at the taxable income of both parents and subtracts standard amounts for personal living costs. It then compares the income with the quantity of care each parent provides, based on the number of nights the child is in each person’s care.

Administrative reviews

If a parent is unhappy with the formula assessment then they can apply to IRD for an administrative review, as your ex-partner has.

There are 11 grounds for which an administrative review can be made:

1. The applicant has a duty to maintain another child (or children) or person.
2. It costs extra to cover the special needs of another child (or children) or person they have a duty to maintain.
3. The applicant has necessary expenses in supporting themselves (such as necessary loans or medical expenses).
4. The applicant has necessary expenses in supporting another child (or children) or person they have a duty to maintain.
5. The costs of contacting the children are more than 5% of the applicant’s adjusted income.
6. It costs extra to cover the child’s special needs.
7. It costs extra to care for, educate or train the child in the way that was expected by either parent.
8. The child support assessment does not take into account the income, earning capacity, property and financial resources of either parent or child (or children).
9. The child support assessment does not take into account that the applicant has previously made payments, transfers or property settlements for the benefit of the child (or children).
10. The applicant still has a financial interest in a property that the other person is entitled to live in.
11. The child support assessment includes extra income earned from additional work to cover costs of re-establishment after separation.

It sounds likely that your ex-partner has applied under ground seven.

The costs relevant to ground seven must be reasonable in relation to the family circumstances. Are there any relevant circumstances as to why it is important for your daughter to attend private school or to have a horse? Was there an expectation your child was going to go to a private school or that both of you were going to fund her horse? Do you have the ability to meet or contribute to these expenses?

If you do not have the capacity to meet or contribute to the expenses, or there was no agreed expectation, then you should have good grounds to defend the review.

The review is normally done with you separately by a child support administrative review officer over the phone. Generally, the reviews take about half an hour.

Lawyers are not generally involved in the reviews but you can seek legal advice from a lawyer or a Community Law Centre before any review .

If your ex-partner is not happy with the outcome of the administrative review, she can take matters further and apply to the Family Court for a departure order. The grounds for departure orders are the same as for administrative reviews.

If you disagree with the outcome of the administrative review, you can file an appeal.

Child support exemptions

You can apply to stop paying child support in certain circumstances. One such exemption is a hospital exemption, which includes stays in treatment centres.

To qualify for a hospital exemption:

• You need to be in hospital or the treatment centre for at least 13 weeks; and
• Your income must only be from investment income and be less than the minimum amount of child support for the year or a benefit paid at the hospital rate.

You have up to three months after leaving the treatment centre to apply for an exemption.

To apply, you need to fill in a prisoner and hospital patient exemption application (IR105) and have someone from the treatment centre sign and stamp the form.

You have said you will have no income during your admission to the treatment centre. As long as the three months is over the 13-week threshold, you should qualify for an exemption for that period.

If successful, your exemption will end when you leave the treatment centre, at which time you must inform IRD.

If you do not qualify to have your payments stopped, you may be able to have them reduced. Your income needs to be at least 15% less than what is used in the formula assessment.

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This article was first published in NZ Herald.