Abner and Abner (No. 2)

[2018] FamCA 281

FAMILY COURT OF AUSTRALIA

ABNER & ABNER (NO. 2) [2018] FamCA 281

FAMILY LAW – CHILD SUPPORT – Application for departure – Competing applications for departure from the current child support assessment the father is liable for – Where the mother seeks that the father pay a greater amount of monthly periodic child support than the assessed rate – Where the father seeks that his annual rate of periodic child support be set at $0 and in lieu he be liable for the children’s school fees – Whether there are special circumstances to ground a departure order – Where it would be otherwise proper to make a departure order but where it would not be just and equitable to do so – Applications for departure dismissed.

FAMILY LAW – FAMILY LAW – CHILD SUPPORT – Payment in a form other than periodic payment – Where the mother seeks that the father pay the children’s school fees and expenses in addition to periodic child support – Where the father seeks to pay the children’s school fees and expenses instead of periodic child support – Where, on the face of the evidence, the parties cannot afford to pay private school fees from income – Order that the private school fees be met from the proceeds of sale of company shares.

FAMILY LAW – INJUNCTION IN RESPECT OF CHILDREN – Where the father seeks an injunction restraining the parents from discussing with the children how school fees and expenses are to be apportioned between the parents or the rate of child support payable by the father – Where the injunction can be made pursuant to s 68B of the Family Law Act 1975 (Cth) – Whether it is in the best interests of the children to make such an order – Where one child has already been exposed to the parents’ financial disputes – Injunctions granted.

Child Support (Assessment) Act 1989 (Cth) ss 3, 116, 117, 124, 125

Family Law Act 1975 (Cth) ss 60CA, 64B, 68B

Family Law Rules 2004 (Cth) r 4.23

APPLICANT: Ms Abner

RESPONDENT:	Mr Abner
INDEPENDENT CHILDREN’S LAWYER:	Robertson Solicitors

FILE NUMBER: SYC 7416 of 2016

DATE DELIVERED: 2 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 12 January 2018; final written submissions received 8 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Jo-Anna F S Moy Solicitor

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Robertson

Orders

1. The parties shall sign all documents and do all things necessary to pay the fees and related school expenses for K born … 2001 at the E School for the duration of her enrolment at that school and unless they otherwise agree, those fees shall be met as they fall due from the proceeds of sale of company shares held in the father’s name.

2. The annual rate of child support payable by the father under any relevant administrative assessment is not to be reduced by reason of the payments required by Order 1 herein.

3. Otherwise, the Applications of the parties for child support departure and for the payment of child support in a form other than periodic payment, instituted by the mother’s Amended Application in a Case filed 3 October 2017 and the father’s Amended Response to an Application in a Case filed 15 December 2017, are dismissed.

4. Pending further order each party is restrained from:

   (a)discussing with the children, or any of them, the apportionment of school fees and expenses as between the parties, or matters related to the rate of child support payable by the father, as ordered by this Honourable Court; and/or

   (b)showing to the children, or any of them, a copy of these orders or any affidavit or application/response relied on by either party to these proceedings.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abner & Abner (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC7416 of 2016

Ms Abner

Applicant

And

Mr Abner

Respondent

REASONS FOR JUDGMENT

1. In this matter Ms Abner (“the mother”) and Mr Abner (“the father”) have made competing applications in respect of child support. The parties each seek a departure from the current child support assessment and they each seek orders under s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) in relation to the payment of certain school expenses. The father also seeks an interlocutory injunction restraining the parties from discussing with the children the matters the subject of their competing child support applications. The applications were heard on 12 January 2018.

2. Also heard on 12 January 2018 were parenting proceedings relating to one of the parties’ children, B (“B”), who was aged 13 years at the time of hearing. Those proceedings were limited to the question of the high school that she should attend from the start of the 2018 school year. That issue was determined on 12 January 2018 and reasons for that decision were published ex tempore on 15 January 2018.

The Applications

1. The orders sought by the mother are contained in a Minute of Orders Sought dated 5 January 2018. Relevantly, she seeks:[1]

   [1] Obvious typographical errors have been corrected. Other errors appear as they did in the original.

   …

   2.Pursuant to s. 117 of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act), the current rate of child support assessment be varied so as to provide that the husband shall pay to the mother by way of monthly periodic child support of $1,666.66 for the children [K] born … 2001, [B] born … 2004 and [G] born … 2008 and that:

   2.1The rate of child support commence as and from 22 December 2017.

   2.2The child support is to be paid by a pro rata payment in the first month and then the full amount to be paid in advance on the first day of each calendar month on a monthly basis until each of the children attains the age of 18 years or completes her/his secondary schooling in the year the child attains 18 years of age, whichever is the later.

   2.3The husband make each payment of child support to the Child Support Agency.

   2.4The periodic child support shall be varied on 1 July in each year (commencing 1 July 2018) by increasing the amount payable by the “child Support Inflation Factor” calculated with reference to the annualised MTAWE figure, as [is]sued by the Child Support Agency ( guide/2/4/2).

   3.Pursuant to s.124 of the Assessment Act, the husband, in addition to periodic child support, shall pay the following non periodic expenses in respect of the children:

   3.1100% of each child’s school fees, levies, and education related costs and expenses from the date of the Orders until each child completes her/his secondary school education, including but not limited to all:

   3.2school fees, enrolment fees, non-refundable deposits, tuition fees and levies, school uniforms, school shoes, sports uniforms and sports shoes, excursion or incursion costs and expenses, including school camps:

   3.3textbooks, computers, music equipment, additional classes and activities, sporting equipment and participation costs organised, invoiced or requested by a child’s school; and

   3.4other parent contributions including but not limited to such things and building levies.

   4.That the expenses referred to in Order 3 for which the husband shall not be expenses for which the husband shall be entitled to seek in any way to reduce his periodic support amount referred to in Order 2 and the same shall not be the subject of any claim by the husband for any form of credit in respect of his periodic child support liabilities.

   5.That the husband pay the costs of the mother of and incidental to the proceedings.

2. The father’s orders were set out in a Minute of Proposed Orders dated 11 January 2018 and are relevantly as follows:[2]

   [2] Father’s Minute of Proposed Orders dated 11 January 2018 (Exhibit 13).

   ...

   2.That pursuant to Section 116, Sections 117(1), 117(2)(b)(ii), 117(2)(a)(iii)(A), 117(2)(c)(ia) & (ib) and Section 118(1)(a) of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the current administrative assessment (issued 22 December 2017) for the payment by the Father of periodic child support for the benefit of the parties’ children [K] born … 2001, [B] born … 2004 and [G] born … 2008 (“the children”) such that the Father’s total combined annual rate of periodic child support for the children shall be set at $0 per annum per child for the child support period commencing 1 January 2018 and concluding on 31 January 2019.

   3.That on the basis of and subject to the Court making the Order referred to at 2 above, pursuant to Section 123(1)(a) and Section 124(1) of the Child Support (Assessment) Act 1989 (Cth) the Father shall pay as and when the same falls due and payable all compulsory private school tuition fees and levies and invoiced by [E School] for the child [K] born … 2001 to attend [E School].

   4.IT IS NOTED that the intention of Order 2 and 3 above is to achieve an outcome whereby each of the Father and Mother share approximately equally in the costs of the child [K] born … 2001 (“[K]”) to attend and complete her high school education at [E School]. This is to be achieved through a reduction in the Father’s annual liability to pay periodic child support to the Mother for the benefit of the children equal to almost (but not precisely) on half of the anticipated annual total private school fees amount for the child [K].

   5.Pending further Order each party is restrained from:

   5.1discussing with the children, or any of them, the apportionment of school fees and expenses as between the parties, or matters related to the rate of child support payable by the Father, as Ordered by this Honourable Court;

   5.2Showing to the children, or any of them, a copy of these Orders or any affidavit or application / response relied on by either party to these proceedings.

   6.That the Wife’s Application in a Case filed 21 August 2017 together with any Amended Application in a Case (should same have been filed) be and is hereby dismissed.

   7.That the Wife shall pay the Husband’s costs of and incidental to these interim proceedings.

The Hearing

1. The proceedings came before the Court on 10 October 2017 and were set down on 12 January 2018 to determine the issue that required determination prior to the commencement of the 2018 school year – namely, the choice of school where B would commence Year 7 in 2018. At the same hearing the related applications for child support departure, non-periodic payments and parenting injunctions were also heard.

2. On 12 January 2018 the parents were present and represented.

3. Ms Robertson is the Independent Children’s Lawyer. She indicated her position in respect of B’s schooling and, not having a role in the child support proceedings, sought and was granted leave to withdraw. The hearing proceeded with cross-examination of the parents and oral submissions.

4. There is some complexity in relation to the child support issues and indeed it was not possible to conclude the hearing about child support on the day. As the father’s lawyers reported that they had not been served with a complete copy of the mother’s Financial Statement, it was necessary to allow the father’s counsel to provide written submissions after the hearing about the import of that document. The father’s submissions were to be lodged and served within 28 days and any submissions in reply on behalf of the mother, by the last day of February 2018. Subject to the orders about written submissions, judgment was reserved.

5. Further written submissions were received from the father’s counsel on 8 February 2018. The submissions in reply from the mother’s counsel were received outside the ordered timeframe, on 8 March 2018.

The Summary Facts

1. The father was born in 1963 and is currently 55 years of age. The mother was born in 1970 and is currently 48 years of age. The parties were married in 1993 and separated on a final basis on 22 November 2015.

2. The children the subject of the parties’ respective applications as to child support are:

   ·K born in 2001 and aged 16 years eight months at time of hearing;

   ·B born in 2004; and

   ·G born in 2008 and aged nine years six months at the time of hearing.

3. The parents’ oldest child, Mr L, was 18 years of age at time of hearing.

4. On 22 December 2017 the most recent child support assessment issued. It fixed the father’s liability at $257 per week for the period 22 December 2017 to 30 November 2018.

5. On 12 January 2018 orders were made including:

   1.The parties do all acts and things and sign all documents as may be required to cause the child [B] born … 2004 to be enrolled in and attend [C School] at [Suburb D] commencing as and from Term 1 in 2018.

The Law

1. Courts exercising power under the Assessment Act do not have unfettered jurisdiction in relation to child support. For example, they do not automatically have power to depart from a child support assessment unless there have been internal reviews of the child support registrar’s decision and there has been a completed application to the Administrative Appeals Tribunal. However, s 116 of the Assessment Act allows a liable parent or a carer entitled to child support to apply to a court having jurisdiction under the Act in respect of an administrative assessment of child support for the child for an order in relation to the child, in the special circumstances of the case, if:

   (a)The liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under the Assessment Act; and

   (b)The court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made in relation to the child in the special circumstances of the case.

2. The effect of s 117 of the Assessment Act is that the Court may depart from an administrative assessment if the Court is satisfied of the following matters:

   (a)That one of more grounds for the departure under s 117(2) of the Assessment Act exist (each ground being prefaced by the requirement “in the special circumstances of the case”);

   (b)That it would be just and equitable as regards to the children, the carer entitled to child support and the liable parent within the meaning of s 117(4); and

   (c)That it would be otherwise proper within the meaning of s 117(5) to make a particular order.

3. The effect of s 124 of the Assessment Act is that the Court may order the payment of child support otherwise than in the form of periodic amounts paid to the carer entitled to child support, if it is satisfied of the matters referred to at 16 (b) and (c) above.

4. The effect of s 125 of the Assessment Act is that the Court must indicate the impact that any order under s 124 will have on the liability of the liable parent under administrative assessments.

The exercise of discretion

1. Jurisdiction is based on there being a child support assessment. The most recent assessment of is to the following effect:

Assessment issued	Period	Father’s Child Support income	Mother’s Child Support income	Annual Rate	Weekly rate
22/12/2017	22/12/2017 to 30/11/2018	$69,846	$5,959	$13,410	$257.00

1. As to the period during which the departures are sought, the mother’s application calls for a departure commencing from the date of the order and terminating when the children turn 18 years of age or complete secondary schooling in the year they turn 18 years of age. For his part, the father seeks a departure for the period 1 January 2018 to 31 January 2019.

Does s 116 apply?

1. As noted above, s 116 contains two grounds. Here there are proceedings before the Court between the parents. The issue is whether it would be in the interests of the liable parent and the carer entitled to child support for the Court to consider whether a departure order should be made. Each of them has applied to depart from the current assessment. That suggests that they each think that it would be in their respective interests for those departure applications to be determined. In my view, the Court should consider whether a departure order should be made.

Service

1. Rule 4.23 of the Family Law Rules 2004 (Cth) requires that the Child Support Registrar be served with departure applications. I do not recall being told that either application had been so served but I assume that occurred.

Grounds for departure

1. The mother relies on one ground in respect of a departure from periodic child support.

2. The circumstances of this case are remarkable and as will become plain, warrant the description “special”.

3. Pursuant to s 117(2)(c)(ia) it is submitted on the mother’s behalf that, in the special circumstances of the case, the application in relation to the children of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable level of financial support to be provided by the father for the children “because of the income, earning capacity [sic], property and financial resources of each parent”.

4. The mother originally relied on s 117(2)(b)(ii) whereby, in the special circumstances of the case, the costs of maintaining the children are significantly affected because inter alia, they are being educated in the manner that was expected by their parents. However, according to the additional written submissions provided in her case, upon the decision made on 12 January 2018 in respect of B, the mother no longer relies on that ground. I do not understand that changed position given that K is at a private school but there it is.

5. The father submits that the mother has failed to identify a ground in the special circumstances that are a pre-requisite to the Court considering a departure application in the terms sought by her. The father submits that the Court would not be satisfied that any of the grounds relied on by the mother are established so as to persuade the Court that special circumstances exist to ground the mother’s application.

6. Nevertheless, the father submits that three grounds pursuant to s 117(2) support his departure application.

7. Firstly, he submits that pursuant to s 117(2)(a)(iii)(A) there is a need to have suitable accommodation for himself and the four children during periods when they live with him.

8. Secondly, pursuant to s 117(2)(c)(ia) and s 117(2)(c)(ib), it is submitted that the father does not have the income, property or financial resources sufficient to support the orders sought by the mother due to a work related injury. Further, in reliance on s 117(2)(c)(ib) the father submits that the mother has underutilised capacity for employment preventing the Court from making an accurate determination of her capacity to contribute to the children’s support.

9. Thirdly, pursuant to s 117(2)(b)(ii) he argues that there are special circumstances as K is being cared for, educated or trained in the manner that was expected by her parents.

10. The father contends that in accordance with s 4 of the Assessment Act, the Court is required to have regard to his changed financial circumstances to offset what the parties may have previously hoped for with regard to the education of their children.

1. I do not understand the utility of the father challenging the mother’s grounds while proposing grounds himself. If a ground is established, then the Court’s power is enlivened and that power is not limited to the topic or scope of the established ground. I am satisfied that ground s 117(2)(b)(ii) is made out, in the special circumstances of this case. Only one ground is required but I would think that s 117(2)(c)(ia) is also made out.

Just and equitable

1. Going to the relevant matters outlined in s 117(4) of the Assessment Act:

The nature of the duty of a parent to maintain a child

1. The effect of s 3 of the Assessment Act is that the parents have the primary duty to maintain the children. That duty has priority over all commitments of the parents other than commitments necessary to enable them to support themselves and the other children. The duty of each parent is not affected by the duty of any other person to maintain the children.

2. The thrust of this provision is to ensure that child support liabilities are based on the income, earning capacity and financial resources of the parents, to have the parents meet the liability equitably as between themselves and to have eligible children share in the financial fate of their parents.

The proper needs of the children

1. The parties have set out in their respective Financial Statements their estimated expenditure on the children. According to his Further Updated Financial Statement sworn 15 December 2017 the father pays $1,835 per week for the benefit of the mother and the children.[3] He says that he pays child support of $428 per week and $1,407 in living costs for the children.[4] A week after that Financial Statement was sworn the father’s child support assessment was reduced to $257. As to the children’s living costs, they are estimated as follows:

   [3] Father’s Further Updated Financial Statement filed 15 December 2017, Part H.

   [4] Father’s Further Updated Financial Statement filed 15 December 2017, Parts G and N.

Item	Amount
Food	$240
Household supplies	$60
Electricity	$20
Telephone	$25
Petrol	$12
Motor vehicle maintenance	$15
Clothing and shoes	$54
Children’s activities	$69
Child minding	$29
Medical, dental and optical	$62
Entertainment/hobbies	$19
Holidays	$100
Education expenses (excluding private school fees)	$10
Private school fees for K	$637
Chemist / pharmaceutical	$10
Cleaning house/pool	$17
Repairs furnishings appliances	$6
Books and magazines	$12
Gifts	$1
Hairdressing, toiletries	$9
Total	$1,407

1. The mother’s latest Financial Statement is confusing. As to her living expenses, the mother estimates her expenditure for the benefit of the children to be as follows:[5]

   [5] Mother’s Financial Statement filed 28 December 2017, Parts N and O.

Item	Amount
Household supplies	$60
House repairs	$21
Gas	$26
Electricity	$25
Petrol	$31
Motor vehicle maintenance	$5
Fares / car parking	$4
Clothing and shoes	$28
Children’s activities	$19
Medical, dental and optical	$37
Entertainment/hobbies	$5
Holidays	$33
Education expenses (excluding private school fees)	$49
Chemist / pharmaceutical	$17
Books and magazines	$4
Gifts	$31
Hairdressing, toiletries	$16
Groceries	$197
Mobile phone / internet	$24
Stationery & Philatelic	$2
Transport	$4
Electronics	$44
Birth Certificates	$3
Home security	$55
Total	$740

1. As to schooling, the parties intend that K will complete her last two high school years at E School (“E School”) and G will continue to attend M School. There is no agreement about the choice of high school for G but he will not be in year 7 until 2021 and the parties have deferred that issue. Pursuant to the orders of 12 January 2018, B will attend C School.

The income, earning capacity, property and financial resource of the children

1. K earns $50 per week but otherwise the children have no relevant income, earning capacity, property or financial resources.[6]

   [6] Mother’s Financial Statement filed 28 December 2017, Part E.

The income, property and financial resources of each parent who is party to the proceedings

1. In her Financial Statement sworn 28 December 2017 the mother’s income is said to total $1,424 per week.[7] It is said to be made up of wages of $578 per week from permanent part-time employment as an administrative assistant and a position providing administrative support in a business; $144 and $136 (totalling $280) per week in share dividends from NIB shares; $430 in child support from the father; $119 in Newstart Allowance and $17 by way of Parenting Payment.

   [7] Mother’s Financial Statement filed 28 December 2017, Part D.

2. However, the mother’s Financial Statement is not correct:

   ·On 22 December 2017 a new child support assessment issued, putting the weekly rate at $257;

   ·After the mother gave her evidence in cross-examination, her counsel told the Court that the two dividend figures in her Financial Statement reflected the rate of payment of dividends per annum, not per week. For reasons that were not explained, no application was made to re-open the mother’s case and the written deposition would normally stand. That said, if the mother’s statement at Part I, paragraph 38 of her Financial Statement is correct, it would be remarkable if the mother’s 1,600 NIB shares, estimated to be worth a total of $10,960, produced an annual dividend of $14,560 in 2017 or in any year. In my view it is more probable than not that the mother’s income from dividends from her NIB shares is $280 per annum, not per week. The weekly dividend figure is approximately $5.38 per week.

3. It is submitted on behalf of the father that the mother’s Newstart Allowance and Parenting Payment are not excluded for the purposes of a departure application. I do not understand that submission. In the Additional Written Submissions prepared on behalf of the mother, it is asserted that her Parenting Payment of $17 must be disregarded, but there is no such claim in respect of the Newstart Allowance that she receives. For child support purposes, the mother’s income from income tested pension, allowance or benefit must be ignored.[8] The Newstart Allowance is an income tested allowance. I will ignore for the purposes of this subparagraph, both the Newstart Allowance and the Parenting Payment received by the mother. Therefore the mother’s weekly income, adjusted for the changes referred to above, is $840.38.

   [8]Child Support (Assessment) Act 1989 (Cth), s 117(7)(b)(ii).

4. The only other income earner in the mother’s household is K who receives $50 per week. Unlike her deposition in an earlier Financial Statement, the mother does not disclose receiving any benefit from other regular payments made by the father. That said, in Part N she refers to unclaimed cleaning expenses by reference to “included in maintenance”. I could find no corresponding reference in the document to “maintenance”.

5. Doing the best I can with the mother’s evidence, in the context of child support departure proceedings, she has a weekly shortfall of $186.62 ($840.38 - $1,027).

6. As to assets and liabilities it is the mother’s evidence that she has assets totalling $97,276 made up of funds in financial institutions totalling $68,308, NIB shares worth $10,960, a motor vehicle worth $18,000, and household contents worth $8,000. It is the mother’s evidence that she has no relevant liabilities. The mother’s superannuation with First State Super is estimated at $98,663.

7. The evidence about the father’s financial circumstances is very confusing, but I will set it out as I understand it. He estimates that his income is of the order of $1,791 per week. That figure comes from his estimate of his business income for 2017 at $1,731, $49 in dividends for his AMP shares and $11 per week in bank interest. The father could not identify a reliable basis for his estimate of $1,731 for his weekly business income. It is the evidence of the father that as at the date of the hearing he had received no income from his business for work done in 2017. He received some moneys in early 2017 but that related to work done in 2016. He did work in 2017 in NSW and Victoria. He could not recall whether he did work for any other persons or entities in 2017. As to his work in NSW and Victoria, the father has received no payment. That is understandable because he has not issued any invoices for any of the work undertaken in 2017. When asked how he will make the calculations in order to prepare such an invoice the father said something to the effect that he would discuss the matter with his contacts in the company and would be assisted by his travel records.

8. There is real doubt about the father’s estimated income. Importantly, as I understand it, that same estimate was the basis for the 22 December 2017 child support assessment. The income figure for the father for the period 11 November 2017 to 30 November 2018 was based on a provisional income figure for the 2016-2017 financial year at $140,755. Two assessments issued on 22 December 2017. Firstly, a new assessment issued based on that same income figure but only for the period 11 November 2017 to 21 December 2017. Secondly, an assessment issued for the period 22 December 2017 to 30 November 2018 based on a provisional income figure for the 2016-2017 financial year at $94,000. The figure of $94,000 represents about $1,800 per week and approximates the estimate that is contained in the father’s Further Updated Financial Statement, referred to above.

9. It is the father’s evidence that the assets in his name have a value of $6,239,074. They are made up of the former matrimonial home at 29 Bannockburn Road, Suburb R valued at $4,500,000, a property recently purchased by the father at O Street, Suburb P for $1,450,000, a total of $41,450 in financial institutions, AMP shares worth $178,127, Company N shares worth $2,122, $16,250 in an AMP Capital China Growth Fund, a 2007 European motor vehicle worth $7,000, a 4WD motor vehicle worth $6,500, household contents at $14,550, vintage car items in the mother’s possession were $3,000, a timeshare interest in the Q Resort worth $1,000 and funds held in his solicitors’ trust account on account of legal fees, in the sum of $19,174.[9]

   [9] Father’s Further Updated Financial Statement filed 15 December 2017, Part I.

10. The father estimates that his liabilities total $1,114,517, made up of a personal loan in the sum of $560,000 raised to purchase the Suburb P property, $8,251 on an NAB credit card, $35 on a Westpac Banking Corporation credit card, $31,500 in estimated personal income tax for the current financial year, $9,000 in estimated Goods and Services Tax, $419,872 as a contingent liability in relation to the possible sale of the Suburb R property and/or on the sale of shares, a contingent liability in respect of land tax payable on the sale of the Suburb R property in the sum of $9,728, $15,000 in estimated rectification work to repair a swimming pool at the Suburb R property, further estimated rectification costs to repair damage at the Suburb R property in the sum of $10,000, a contingent liability in relation to a potential professional liability of the father for the provision of professional services in the sum of $50,000 and unpaid legal fees owing to the father’s solicitors in the sum of $1,131.[10]

    [10] Father’s Further Updated Financial Statement filed 15 December 2017, Part K.

11. The father estimates his superannuation interests at $1,071,868 made up of an interest with AMP superannuation valued at $1,025,061 and an interest with the Australian Eligible Rollover Fund valued at $46,807.[11]

    [11] Father’s Further Updated Financial Statement filed 15 December 2017, Part J.

12. The father discloses certain financial resources:[12]

    ·he has an interest as a beneficiary in the estate of his late father. Remarkably, although the father’s father died in 2001, it is the father’s evidence that the estate is not yet finalised. The father is not aware of the value of his interest in the estate;

    ·the father says that he and the mother and their children may have entitlements as beneficiaries of the estate of the mother’s deceased grandfather. Again the father says he is not aware of the value of those potential interests;

    ·the father has rights as a beneficiary of a discretionary trust known as the Abner Family Trust and again the father is not aware of the value of his interest; and

    ·the father includes in his financial statement a reference as a financial resource to income of $90,000 yet to be received or invoiced for his exertions in 2017. That last figure has already been accommodated in the Financial Statement in the references to the father’s current income.

    [12] Father’s Further Updated Financial Statement filed 15 December 2017, Part L.

13. The father did not change or resile from his evidence during cross-examination.

14. The parties’ marriage was of significant duration and each of them seeks orders for settlement of property. At this stage the overwhelming proportion of the parties’ wealth is held in the name of the father. Even then it is clear from the written submissions made on behalf of the father that he is aggrieved about the mother’s use of the modest funds in her name. Until that settlement is made the legal title to the assets of the marriage reflected in the disclosure referred to above is of little assistance in relation to child support. Presumably going to the reason for him seeking a departure only for 12 months is the submission made in the father’s case that pending the determination of property settlement, it would be unsafe for the Court to take into account the property or financial resources of either party for the purpose of deciding whether it would be proper for an order to be made.

The earning capacity of each parent who is party to the proceedings

1. The father is a self-employed consultant. He estimates his income for 2017 at $1,791 per week. He estimates that he worked in the range between one hour and two days each week in that year. It is the father’s evidence that he was injured on a work trip in 2002. After treatment he returned to work on limited duties and was ultimately made redundant in 2008. He was successful in making workers compensation and travel insurance claims in respect of his injuries.

2. In at least one year in this decade the father had a taxable income of the order of $500,000. However, he will argue that his income in that year was an aberration. His income for the 2014 and 2015 years were $39,874 and $116,391, respectively. There is reference in the father’s case to physical limitations on his capacity for paid employment. However, he also deposes to devoting time to these proceedings. There is no definitive evidence about the limits of the father’s earning capacity and it is not possible within the limits of these proceedings to make a useful finding about that issue. The father deposed that he has considered changing careers to an information technology role but also says that he would like to retire from the workforce.

3. The mother works for one and one half days a week as an office assistant and for five to six hours each week as an assistant in a business.  It may be that she would have some capacity for a marginal increase in her working hours. It is the father’s evidence that the mother holds a professional qualifications.. However, she has never held a full-time position in the field of this qualification. The scope of the evidence in the proceedings does not permit probative findings to be made about that issue. For example there is no evidence about whether additional hours might be available to the mother in either of her current paid roles. There is no evidence about the mother’s prospects, if any, of securing a position 28 years after qualifying, about any additional or updating training required, let alone whether she wishes to follow such a path.

4. Ironically, the father is aggrieved about the mother’s limited hours of work despite her making a greater weekly commitment to paid employment than him.

The commitments of each parent who is a party to the proceedings that are necessary to enable the parent to support himself or herself or any other child or another person that the person has a duty to maintain

1. As to the mother’s liabilities, again her Financial Statement is unclear but as I understand it, she claims to spend a total of $1,027 per week. That is made up of $104 in fixed expenses (income tax, home and contents, motor vehicle and health insurance)[13] and $923 in living expenses of which $183 is for her expenses and $740 is applied to the children. There are problems with those figures in that the total figure for groceries is recorded as $245 but the mother’s expenditure is put at $49 and the children’s at $197. In addition, $1 and $3 spent on birth certificates is recorded as totalling $3.

   [13] In the Financial Statement the total of the mother’s fixed expenses is incorrectly recorded in Part B and at item 33 as $60 per week.

2. There was no challenge to any particular item or quantum of the mother’s expenditure but at the time of cross-examination the father’s counsel did not have a complete copy of the mother’s Financial Statement, making the items and totals in Part N of the document confusing. Doing the best I can with the mother’s evidence, in the child support context she has a weekly shortfall of $186.62 ($840.38 - $1,027).

3. In addition to credit card payments which total $1,596 and rent, the father deposes that he spends $3,508 per week. It is not clear to me why the father excludes his credit card payments for the purposes of calculating his current expenses unless they would represent a double counting of his expenses. Of the claimed total expenditure, his living expenses are estimated at $1,927 per week which would mean that his ongoing fixed expenses total $1,581 per week. Of the fixed expenses the claimed child support of $428 has been reduced to $257. That will reduce the father’s estimated expenditure to $3,337.

4. Doing the best I can with the father’s evidence, he has a weekly shortfall of $1,546 ($1,791 - $3,337).

The direct and indirect costs incurred by the carer entitled to child support in providing care for the child

1. I have referred to the mother’s evidence about those expenses.

Any hardship that would be caused to the child, the carer entitled to child support, the liable parent or any other child by the making of, or the refusal to make an order and to any resident child of the parent by the making of, or the refusal to make, the order.

1. In my view there is no evidence that either of the parents would suffer hardship by the granting or refusal to grant a child support departure. They are each drawing on capital to meet the shortfall in their weekly budgets and will continue to do so.

Conclusion

1. Each of the parties is engaged in paid employment for less than three days a week. It is unsurprising then that their expenses are greater than their incomes. The father has a weekly shortfall of $1,546. The mother has a weekly shortfall of $186.62. Each of the parties is living on capital which comes from a matrimonial pool of about $5 million. Most of those assets are in the father’s name.  The parties have a bit over $1 million in superannuation. Again, most of that is in the father’s name. There are said to be financial resources to which the parties have or may have access. There is no indication of the monetary value of those resources. In that regard, again, the father is linked to more sources of potential financial benefit than the mother.

2. In my view there is no value in changing the current assessment. I cannot confidently identify a figure different to the current assessment that would strike a balance between the parties that could be said to be just and equitable. The parties are clearly anxious about the uncertainty in their financial circumstances. For example, the father has sought that any departure order be for limited duration.

Otherwise proper

1. Section 117(5) of the Assessment Act provides that in determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:

   (a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

   (b)      the effect that the making of the order would have on:

   (i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

   (ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

2. The mother is in receipt of an income tested allowance in the form of the Newstart Allowance as well as a Parenting Payment. As is conceded in the most recent submissions made in the mother’s case at paragraph 24, if the father’s child support assessment increases the mother’s allowances will be reduced.

3. The parties have assets of the order of $6 million in value. I am satisfied that it would be otherwise proper that the proportion of the costs of their children met by the community be reduced and that the parents take more of the financial load.

Conclusion

1. The Court has jurisdiction to consider a departure application notwithstanding that the requirements of the administrative scheme have not been fully met. I am satisfied that thee parents should have access to the Court. The father has established a ground for departure in the special circumstances of this case. For a departure to be granted both subsections 117(4) and (5) must be satisfied. I am satisfied that it would be otherwise proper to grant a departure by increasing the father’s child support liability but I cannot be satisfied that it would be just and equitable. The parties’ departure applications will be dismissed.

Payment of Child Support in a form other than Periodic Payments

1. The mother seeks that the father pay the children’s school fees and related expenses in addition to his periodic child support. The father seeks that he pays those fees and expenses instead of, but not as well as, his periodic child support.

2. I refer to the findings made above in relation to ss 117(4) and (5).

3. The overwhelming component of the children’s school fees and expenses are those associated with K’s two final years at E School. Her fees will be about $33,139 in 2018 and $36,300 in 2019.[14] Those fees alone are more than one half of the father’s after tax income for two years. I gather that both parents want K to complete her secondary schooling at that school.

   [14] Father’s affidavit sworn 15 December 2017, paragraph 122.

4. As I said in giving reasons for judgment in the earlier interlocutory proceedings, it would be highly unusual for a Court to impose on parents the obligation to meet school expenses from capital (or borrowings). However, the parents have left no other choice. They have left in place an arrangement whereby K will attend E School for two years. On the face of the evidence the parents cannot afford to pay those fees from income. I will order that the parties jointly meet the fees associated with K’s attendance for years 11 and 12 at E School.  The father has greater control of the parties’ wealth than the mother and unless the parties otherwise agree the required fees shall be met from the proceeds of sale of company shares held in the father’s name.

5. The effect of that order will be to have the parties meet K’s school fees and expenses in the same proportion as their ultimate property settlement. For the purposes of s 125 of the Assessment Act, the father’s periodic child support liability is not to be reduced by reason of that order.

Injunctions

1. Finally, the father seeks that the mother and he be restrained in the interim from:

   5.1discussing with the children, or any of them, the apportionment of school fees and expenses as between the parties, or matters related to the rate of child support payable by the Father, as Ordered by this Honourable Court;

   5.2Showing to the children, or any of them, a copy of these Orders or any affidavit or application / response relied upon by either party to these proceedings.

2. Section 68B of the Family Law Act1975 (Cth) provides, among other things, that:

   …

   (2)  A court exercising jurisdiction under this Act ... may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

3. In considering such an order, the best interests of the children is the paramount consideration.[15] There was no mention of this issue in the submissions made on behalf of the mother. On that basis the injunctions may not be opposed.

   [15]Family Law Act 1975 (Cth), ss 60CA and 64B.

4. The father’s evidence is at paragraphs 82–84 of his affidavit sworn 15 December 2017. There was email communication between B and the father in July 2017 and two conversations in July and September 2017. The mother confirms that she had discussions with B during 2017 about which school she would attend in 2018. As I understand her case, she thought that there was an agreement about B’s secondary schooling until late in the piece. Although the damage is done in respect of those particular communications, it may be useful for the parties to be reminded about the entitlement of the children to maintain a positive view of each of the parents and to be spared direct exposure to the parties’ financial disputes.

5. I will make the orders sought by the father.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 2 May 2018.

Associate:

Date:  2 May 2018