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Can cat 8 capacity to earn be applied to carer?

Hi, I'm the mother and primary carer of a profundly disabled child. My capacity to earn is limited by the 24/7 care that my child needs. My ex husband is a very high income earner (above the CSA cut off). His income is about 6-7 times mine. I'd like to know if I can appeal under cat 8, capacity to earn or if anyone else has a similar situation?
Who do you think has the capacity to earn that is not reflected? A capacity to earn has 3 must be met criteria:

1) the parent is not working despite ample opportunity (the other parent appears to not meet this according to the information that you have provided), or has reduced their working hours to below full-time (again this would appear to not be the case for the other parent), or has changed their occupation, industry or working pattern (this cannot be determined from the information given).

2) the parent's decision to change the work arrangements is not justified by their caring responsibilities or their health.

3) the parent has failed to show that the decision was not substantially motivated by the effect it would have on the child support assessment.


Thus it would appear that a reason 8 under capacity to earn against the other parent would be unlikely. As for yourself and the fact that a capacity to earn can only increase the parent's income, such a move would be disadvantageous to yourself, if successful.

I would suggest that you would have more chance of a reason 2, special needs of the child, change of assessment. However, this could then result in the other parent considering counter claiming for a reason 8 if the capacity to earn criteria could be applied to yourself. A relatively recent (Ryan v Ryan) decision had SSAT increase the recipient's income by way of capacity to earn as the parent had worked extra then usual time over Christmas increasing the taxable income from $25,000 to $42,000.

P.S. your post as guest, as it's the same post, will be deleted and thanks for taking the trouble of joining.
Mike thanks for your reply. My query was really the reverse in that my capacity to earn a decent income and be free of centrelink is limited by the need to care for a disabled child.
When property settlement ocurred a few years ago no allowance was made for spousal maintenence because the csa calculation was generous. However over the years "improvements" to the csa formula have whittled that away. One of the first changes in the revamped csa fromula was to reduce the upper limit of ex's income that would be considered in calculation. Result reduction in csa of 9k and that was the start.
As the sole carer of a profoundly disabled child you would have received a very generous property settlement regardless of child support.

From memory the old C$A formula had an income cap of 90K prior to the 2008 changes. Many payers whose income was over 90k ended up paying more as a result of the change. Perhaps your ex has been lawfully reducing their taxable income.

As Mike suggests you can claim special circumstances such as the extra costs associated with caring for a disabled child.
Fairgo, you assume property settlement was very generous when in fact it was average and tied to private child support agreement. There was some haste at the time of these negotiations because member of ex's close family was dying. Private child support agreement never signed and years later close family member alive and well.
I was assuming that you went to trial over the settlement and care and the Judge gave a decision that took into account of your earning capacities and caring responsibilities. However you are now indicating that you negotiated your settlement which is a different kettle of fish. As mentioned before I think you could claim the extra child care costs associated with a child that is profoundly disabled so you could get out and work.
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