Acton & Burton
[2015] FamCA 469
•22 June 2015
FAMILY COURT OF AUSTRALIA
| ACTON & BURTON | [2015] FamCA 469 |
| FAMILY LAW – CHILD SUPPORT – INTERIM APPLICATION FOR DEPARTURE – S116, S117 - Application refused |
| Babbit & Babbit [2011] FamCAFC 151 Black & Kellner (1992) FLC 92-287 Gyselman (1992) FLC 92-279 In the Marriage of Scott (1994) FLC 92-457 Jacks & Parker (2011) FLC 93-462; [2011] FamCAFC 34 Luton & Lessels (2002) 210 CLR 333 Saberton & Saberton [2013] FamCAFC 89 Scott v Stauder (unreported, Family Court of Australia, Kay J, 20 November 1996) Weir & Weir (1993) FLC 92-338 |
| Child Support (Assessment) Act 1989 (Cth) ss 4, 114, 116, 117, 118 |
| APPLICANT: | Ms Acton |
| RESPONDENT: | Mr Burton |
| FILE NUMBER: | BRC | 9435 | of | 2012 |
| DATE DELIVERED: | 22 June 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 4 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPLICANT: | Murdoch Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Naughton from Rice Naughton, as town agents for Blanchfield Nicholls Partners |
Orders
The Application for interim relief as contained in the Amended Initiating Application filed 9 March 2015 is dismissed.
In the event that either party seeks an order that the other pay the costs of and incidental to the interim application heard on 4 May 2015:
(a)any such party shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the party against whom an order for costs is sought shall file and serve within a further fourteen (14) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(c)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acton & Burton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9435 of 2012
| Ms Acton |
Applicant
And
| Mr Burton |
Respondent
REASONS FOR JUDGMENT
The Applicant seeks[1] that the Court determine her interim Application for a departure[2] from the administrative assessment of child support for the parties’ three children. She also proposes that:
a)the Court order[3] that the Respondent’s child support income for the purposes of child support assessment is $177,073.00 per annum[4]– the consequence of such an order would be that the Respondent’s child support amount would be about $37,186.00 per annum or about $715.11 per week; and
b)the Court further order that such deemed income apply to all child support assessments conducted between 2 April 2014 and 12 January 2022.
[1] As outlined in the Amended Initiating Application filed 9 March 2015.
[2] Pursuant to s 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth).
[3] Pursuant to s118 of that Act.
[4] The maximum amount pursuant to section 41, Child Support (Assessment) Act 1989.
Counsel for the Applicant sensibly did not press that an interim order be made to encompass the entirety of the period of time referred to in the Amended Initiating Application but, rather, sought that an order be made in terms outlined in paragraph 1(a) until further order.
The Respondent opposes the making of any orders departing from the current child support assessment – a determination with which he disagrees, but to which, it seems, he has not formally objected at this time.
The current Child Support Assessment
On 11 April 2014, the Applicant received confirmation from the Child Support Agency that her application for child support assessment had been accepted. The Respondent was assessed to pay $220.00 per month until 1 July 2015.[5] This assessment was made on the basis that the Respondent’s income was $Nil, that her income was $40,630.00, and that she had the care of the children 77 per cent of the time.[6]
[5] Affidavit of the Applicant, filed 9 March 2015, at [10].
[6] Affidavit of the Applicant, filed 9 March 2015, at [10].
The Applicant applied to vary this assessment on the basis of the Respondent’s asserted income, earning capacity, property and financial resources.[7]
[7] Affidavit of the Applicant, filed 9 March 2015, at [11]; Reason 8A.
On 16 January 2015, the Applicant received confirmation from the Child Support Agency that her application for a change to the assessment had been approved. The reasons for such determination are before the Court.[8]
[8] Exhibit 1.
The current assessment, based on a determination that the Respondent’s income for child support assessment purposes is $87,000.00 per annum, requires the Respondent to pay $5,376.00 per annum or $103.38 per week to the Applicant. A further consequence of the change of assessment has been that the Respondent is currently in arrears in an amount of $1,793.00.
It is from this assessment that the Applicant seeks to depart.[9]
[9]The Child Support Registrar has been served with the documents and acknowledged the same in correspondence dated 25 March 2015; see also the Affidavit of Service filed 9 April 2015.
Background
Both parties have remarried. The Respondent has a child of his current marriage: F, born in 2014.
The parties have three children together:
a)B, born in 1998; and
b)C, born in 2000; and
c)D, born in 2004.
Pursuant to the terms of a parenting order made by consent on 13 May 2014:
a)the parties have equal shared parental responsibility for all three children;
b)C and D live with the Applicant during the school term;
c)the Respondent spends time with C and D for up to two weekends each school term; and
d)the Respondent spends time with the children for the duration of all school holidays save for:
i)one week during the June/July school holidays;
ii)up to two weeks preceding the children’s January return to school in each alternate year;
iii)a one week period over Christmas in each alternate year; and
iv)the last two days of all school holiday periods.
The Order also reflects the parties’ agreement that B remain a boarder at her current private school until the conclusion of her schooling at the end of 2015 and that each of C and D continue to attend their current private schools as day students until the last day of 2015.
It is not in dispute that the Respondent meets the costs of B’s and C’s attendance at their respective schools and the Applicant meets the costs of D’s attendance at his school.
No application to vary the existing parenting order so that the children cease attending their current schools has been made or foreshadowed. However, the issue of the schools at which the children C and D will attend at and from 2016 is clearly a matter requiring resolution between the parties.
The Applicant lives in south-east Queensland. The Respondent lives on a rural property located near E Town. This reality means that there are certain travel costs associated with the children spending time with the Respondent pursuant to the terms of the consent order.
The manner in which these costs are to be shared between the parties is also provided by the terms of the Order: namely, the Applicant pays one third of the travel costs for C and D to spend time with the Respondent and the Respondent pays the balance.
The current situation
Given the terms of the May 2014 Order and the current assessment, the Respondent’s contribution to the support of the children (by way of meeting education expenses and costs associated with them spending time with him) is currently no less than about $74,576.00 per year, being:
a)$1,057.69/week (or $55,000.00 per annum) in payment of B’s school fees; and
b)$253.84/week (or $13,200.00 per annum) in payment of C’s school fees; and
c)about $19.20/week (or about $1,000.00 per annum) in meeting travel costs associated with the children’s time with him; and
d)whatever actual costs are incurred during the time the children actually spend with him; and
e)$103.38 per week (or $5,376.00 per annum) pursuant to the current assessment.
The Applicant’s evidence is that her total cost of supporting the children[10] is $723.14/week (or about $37,603.28 per annum).
[10] Exclusive of any apportionment of accommodation costs.
When the approximately $1,311.53 per week paid by the Respondent toward school fees and expenses is added to this, the total weekly cost of the children is about $2,034.67 (or about $105,802.84 per annum).
With the current assessment and his current payment of B’s and C’s school fees, the Respondent will pay about $73,575.32 per year toward this – that is, he currently is to meet about 69.54 per cent of the annual costs.
It is with this in mind that the Court assesses whether there are special circumstances justifying a departure from the current administrative assessment and whether it is just and equitable and otherwise proper that the order sought by the Applicant is made.
The consequences if the Application is successful
If the Applicant is successful, the Respondent will be required to pay about $715.11 per week by way of periodic child support payment (about $37,185.72 per annum) in lieu of the $103.38 ($5,375.76 per annum) currently required by the assessment. As he will continue to meet the costs of B’s and C’s attendance at school, his total contribution to the costs of supporting the children will be about $105,385.28 or about 99.60 per cent of their total costs (exclusive of accommodation).
The Applicant’s Financial Statement reveals a gross weekly income of $620.00 (excluding any entitlement to child support). She asserts that her weekly expenses amount to $2,034.55 including $723.14 for the children. She further indicates that her husband contributes $500.00 towards expenses (including $100.00 for D’s school fees and a contribution for food, electricity and fuel).
The Respondent has prepared three Financial Statements, the most recent of which was filed on 24 April 2015. That document reveals that, despite being self-employed, his weekly income is $Nil. His weekly expenditure is approximately $6,703.00. Of this sum, E$1,262.00 represents school fees for C and B. Approximately $4,134.00 represents mortgage and other loan repayments. His liabilities are approximately $4,942,277.00. His Financial Statements indicate that, since separation, he and the entities controlled by him have disposed of significant assets - the proceeds have been used to reduce debt: for example, the Respondent’s debts reduced from $9,021,536.00 as at October 2013 to $6,625,134.00 as at August 2014 and then $4,079,259.00 as at April 2015.
The interim nature of the proceedings
The interim hearing proceeded on the papers and with the receipt of both written and oral submissions by the legal representatives who appeared for each party. Given that Rule 5.10(2) of the Family Law Rules (2004) provides that cross-examination at the hearing of an interim or procedural application will be allowed only in exceptional circumstances, it is, perhaps, unsurprising that no application was made by either legal representative for leave to cross-examine the other party.[11]
[11] Rule 5.10(2) Family Law Rules (2004).
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them: significant matters or assertions in respect of which contest is taken may well need to be the subject of cross-examination and, perhaps, expert evidence before definitive findings about the same can be made.
This reality means that the current interim Application for departure from the existing child support assessment falls to be considered and determined in the context of some disputed issues and an inability to resolve the same via the mechanism of cross-examination: consequently, orders – if made – are arrived at on the basis of matters which are either agreed or which cannot seriously be seen to be the subject of challenge, at least for the purposes of this interim hearing.
Any findings expressed in the course of disposing of the current application must be seen in this context. Matters outlined here may, ultimately, be shown at a further hearing or trial to be different.
The obvious limitations inherent in interim proceedings do not relieve the party seeking relief from the obligation of establishing the necessary prerequisites for the grant of the relief sought. The Applicant, therefore, must still prove, to the requisite standard, those matters fundamental to the successful prosecution of her claim.
Whilst not, for a moment, suggesting that this is in any way exhaustive, there appear to be a number of fundamental disputes between the parties - namely:
a)the extent of the Respondent’s financial capacity and ability to make contributions to the further financial support of the children in amounts additional to the amount payable pursuant to the existing assessment and the costs of the attendance of two of them at private schools; and
b)how the Respondent can meet his asserted significant weekly expenses in circumstances where his asserted weekly income is ‘Nil’; and
c)the extent of the disclosure provided by the Respondent during the course of the proceedings for property settlement orders.
Counsel for the Applicant submitted I would be persuaded the Respondent has been so deficient in providing disclosure that, consistent with the “guidelines” established in cases such as Black and Kellner[12] and Weir and Weir[13], I should not be unduly cautious about making findings in favour of the Applicant. The thrust of his submission was that I should adopt a robust approach to the interim ascertainment of the Respondent’s capacity to make further contribution - over and above meeting the school fees for the two oldest children and the impost imposed by the current child support assessment - to the financial support of the children and should conclude that this capacity was properly quantified by determining that his child support income is $177,073.00 per annum.
[12] (1992) FLC 92-287
[13] (1993) FLC 92-338
The difficulty for the Applicant’s case in this respect is, it seems to me, that one of the very issues in dispute between the parties is whether the Respondent has complied with the general duty of disclosure imposed upon parties by the Rules.[14]
[14] Rule 13.01.
The Respondent strongly resists the contention that he has failed to comply with this general duty. There is certainly correspondence from his solicitor to the Applicant’s legal representative outlining his disclosure and refuting the – often repeated – assertion that he has failed to provide documents which should properly be provided to the Applicant.
Whatever may ultimately be found to be established at a hearing at which cross-examination is permitted, I am not persuaded that the current state of the evidence permits a conclusion that the Respondent has failed to comply with his ongoing duty of disclosure.
My conclusion about the inability to determine whether the Respondent has failed to comply with his obligation to disclose disposes of Counsel’s submissions as to the inferences which are asserted should be drawn from an asserted – but not, for now at least, established - failure to disclose.
For completeness, I note that, even if such conclusion could be reached on an interim basis, the comments of the Full Court in Jacks & Parker (2011) FLC 93-462 at [151] are apposite:
…We accept that non-disclosure by one party can be time consuming and costly for the other party. However, the failure of a party to provide full and frank disclosure does not absolve the other party from presenting his or her case to the required standard, nor the Court from its obligation to evaluate all aspects of the case and to undertake a proper assessment of the evidence.
As outlined above, one of the issues in the proceedings is the Respondent’s capacity to meet the payments met by him in circumstances where his sworn income is ‘Nil’. The Applicant’s case is that his ability to meet expenses in amounts asserted by him in such a circumstance is indicative of the existence of a (non-disclosed) source of funds or income and that, in such circumstances, the Court should readily infer that his financial position is such that his child support income should be declared at $177,073.00 per annum.
The submission that such an inference should be drawn acknowledges that there is no evidence to establish that the Respondent’s income is greater than the amount determined by the Senior Case Officer.
The Respondent has provided a prima facie answer to the Applicant’s assertions: he swears that, whilst he has no income, he meets the payments from the periodic sale of assets and by incurring further debt.
As I understand his explanation, the Respondent’s Financial Statements contain details of the liabilities and/or expenses for which he is responsible – calculated on a weekly basis – but these liabilities are not necessarily actually paid on a weekly basis. For example, whilst he incurs liability for interest payable to a commercial lender in the weekly amount outlined in his Financial Statements (filed over the course of the proceedings), he ceased paying the interest payments on the borrowings in about June 2014 because he did not have the capacity to do so; instead, he thereafter paid lump sums toward this liability when assets were sold and, otherwise, the interest on the borrowings has been capitalised. The impact of this can be seen when regard is had to the following: as at 6 October 2014, the interest payable by the Respondent to the commercial lender was $188,000.00 but, by 19 March 2015, it stood at $274,000.00.
It is, perhaps, opportune at this point to remark that the Applicant’s contention that a figure of $87,000.00 per annum does not accurately measure the Respondent’s income because of the quantum of debt he services appears to ignore this evidence: that is, such contention appears to ignore that he is not in fact servicing it - at least, not on a regular weekly basis – with the result that the amount of interest repayable increased by about $86,000.00 in about 5 ½ months.
At this stage, given the nature of interim proceedings and the absence of any contradictory evidence, I am not persuaded that the Respondent’s sworn assertions that he meets expenses by the sale of assets and by incurring further borrowings should simply be dismissed.
The legislative framework[15] and applicable principles
[15]See discussion of aspects of the child support scheme in Luton v Lessels (2002) 210 CLR 333 per Gaudron and Hayne JJ at pp 350-351.
The principal object of the Child Support (Assessment) Act 1989 (Cth) is to ensure that children receive a proper level of financial support from their parents.[16] One of its particular objects is to ensure that persons who provide ongoing daily care for children are able to have the level of financial support to be provided for such children readily determined without the need to resort to Court proceedings.[17]
[16] s 4(1) Child Support (Assessment) Act1989 (Cth).
[17] s 4(2)(c) Child Support (Assessment) Act1989 (Cth).
Further objects to Divisions 4 of Part 7 include[18] ensuring:
a)that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
b)that parents share equitably in the support of their children.
[18] s 114 Child Support (Assessment) Act 1989 (Cth)
It is with these objects in mind that the current application must be considered.
The limitations on making an application for a departure order are contained in s 116 of the Act, which relevantly provides as follows:
116 Application for order under Division
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) 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 under this Division in relation to the child in the special circumstances of the case.
If persuaded that the provisions of s 116(1)(b) are met, a Court exercising jurisdiction under the Assessment Act may permit the application to proceed.[19]
[19] Babbit & Babbit [2011] FamCAFC 151at [134]; Saberton & Saberton [2013] FamCAFC 89.
Both parties are parties to an application pending in a Court having jurisdiction under the Act. Thus, the requirement imposed by s 116(1)(b)(i) of the Act is satisfied.
Counsel for the Applicant submitted that the fact that the Respondent was able to meet his claimed expenses and proposed to take on significant educational expenses for C and D in 2016, despite asserting a ‘Nil’ income, established the prerequisite imposed by s 116(1)(b)ii) of the Act – namely that, in the special circumstances of this case, it is in the interests of the parties for the court to consider now whether a departure order should be made now in relation to the children.
I am not persuaded that a future proposal to meet significant expenses is cogent evidence of an existing ability to do so. It may, after all, prove to be nothing more than a hope which fails to be achieved. It cannot be forgotten that the current application falls to be determined on the basis of the current financial circumstances of each party and not on the basis of what it is hoped these circumstances will be at some future point in time.
Counsel for the Applicant invited the Court to conclude that special circumstances exist despite there being no evidence adduced by the Applicant as to the quantum of the Respondent’s earning capacity. Rather, it was submitted, in essence, that the combination of the disparity between the Respondent’s asserted ‘Nil’ income and his sworn expenses and his asserted future willingness to take on significant additional education expenses itself constitutes ‘special circumstances’ such that the application of the administrative assessment would result in an unjust and inequitable determination of the amount of child support payable by him to the Applicant.
In expanding this submission, Counsel submitted that the stark contrast between the Respondent’s asserted ‘Nil” income (as deposed to in a number of previous Financial Statements[20]) and the following constitute the ‘special circumstances’ required by s 116(1)(b)(ii) of the Act:
a)his asserted weekly expenses, which have been said to be $6,703.00 at 24 April 2015, $13,836.00 at 6 August 2014 and $20,157.00 at 23 October 2013 and; and
b)his ability to meet the costs of B’s attendance at her boarding school (about $55,000.00 per annum) and C’s attendance as a day student at her private school (about $13,200.00 per annum); and
c)his proposal that, from 2015, C attend at the school previously attended by B (at a cost of about $55,000.00 per annum) and D attend at another private school (at a cost of about $55,000.00 per annum).
[20]Filed 4 May 2015, 6 August 2014, and 23 October 2013.
As noted above, the Respondent answers these assertions by saying that:
a)he meets expenses via the sale of crops, wool, animals and property as well as undertaking further borrowings; and
b)he prioritises meeting the children’s educational expenses.
The Respondent’s evidence about the manner by which he has obtained the funds used by him to meet the expenses referred to above needs to be assessed in the context where consideration of the entirety of the affidavit material he relies upon suggests that, over the last couple of years, he has been engaged in significant dispositions of real property in order to reduce debt - which, at one stage, appears to have been in the vicinity of $13,000,000.00 – owed to a commercial lender.
I do not accept the submission made by Counsel for the Applicant that I should simply draw inferences adverse to the Respondent’s case and, in essence, be completely dismissive of his sworn account. This is not a case where a party has refused to answer an allegation or provide a response to an issue clearly in dispute: rather, an answer that is clearly not accepted by the Applicant but one which is not immediately so lacking in credibility as to warrant immediate dismissal has been both provided and sworn to. Whether this evidence withstands the challenge of cross-examination can only be determined at trial.
I consider that, given the Respondent’s current contribution to the costs of supporting the children and his explanation for the manner by which such contributions are made, the Applicant has failed to established the existence of special circumstances such as to warrant the Court now considering whether a departure order should now be made.
In the event that I am wrong in arriving at this conclusion, I turn to consider, on an interim basis, whether an order departing from the administrative assessment of child support for the children should be made.
How is a departure application determined?
In determining an application for an order for departure from an administrative assessment, the Court must follow the three stage approach provided by the legislation.[21] As the Full Court emphasised in Babbit & Babbit[22] … “the mandatory considerations and dispositive powers of the Court in respect of such applications are delineated by ss 117 and 118 of the Assessment Act.”
[21]See: Gyselman & Gyselman (1992) FLC 92-279 and authorities which followed such as Saberton & Saberton [2013] FamCAFC 89.
[22] [2011] FamCAFC 151at [134].
In Gyselman and Gyselman[23] the Full Court[24] explained the approach the Court must take in considering whether to make a child support departure order and, at 79,064, outlined the “three step process” that must be followed:
[23] (1992) FLC 92-279.
[24] Nicholson CJ, Fogarty & Nygh JJ.
Division 4 of Part 7 of the Assessment Act provides a procedure by which the Court may make an order which “departs” from the administrative assessment. Where the Court concludes that it is appropriate to “depart” from the assessment, s 118 (if necessary coupled with s 141), gives the Court wide powers to vary or discharge the assessment including, although not limited to, varying one or more of the component parts of the formula.
Section 114 sets out “additional particular objects of this Division” in the following terms:
“(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b) that parents share equitably in the support of their children.”
Section 115 defines the cases in relation to which the Division applies, namely:
“This Division applies where, in the special circumstances of a case, a custodian entitled to child support, or a liable parent, wants a court having jurisdiction under this Act to make an order having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to a child in the special circumstances of the case.”
Section 116 sets out largely procedural requirements for an application under Division 4. Section 117 is the critical provision.
The structure of that section is that s 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
1. Whether one or more grounds of departure in s 117(2) is established.
If so:
2. Whether it is “just and equitable” within the meaning of
s117(4) to make a particular order.3. Whether it is “otherwise proper” within the meaning of
s 117(5) to make a particular order.It is clear from the careful way in which s 117 has been structured that the Court must address each of those three separate issues.
That is, an Applicant must establish the existence of one of the grounds for departure contained within s 117(2) of the Act and, if the Court is satisfied of the existence of the same, then the Court has a discretion to make an order changing the terms of the assessment if it is just and equitable (as regards the children, the Applicant, the Respondent and the type of child support) and it is otherwise proper within the meaning of the legislation.
Is a ground for departure established?
In deciding whether to make a departure order, the first step is to determine whether, in the special circumstances of the case[25] one or more of the grounds for a departure order outlined in s 117(2) of the Act are made out.[26]
[25] s 117(1)(a) of the Act.
[26] s 117(1)(b)(i) of the Act.
Section 117(2) relevantly provides as follows:
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(ia)because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent.
The meaning of the phrase “in the special circumstance of the case” was discussed by the Full Court in Gyselman as follows:[27]
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p. 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
[27] at p 79,065.
Broadly, the Applicant submits that the current administrative assessment produces a result which is unjust and inequitable given the Respondent’s income, property and financial resources.[28] As noted above, she relies heavily on her assertion that he has failed to provide full and frank disclosure of his financial position and also on inferences she has drawn from transactions she asserts he has made – transactions which she asserts indicate that he has access to undisclosed income or financial resources.
[28] s 117(2)(c)(ia).
As also outlined above, I am not persuaded that I can conclude on an interim basis that the Respondent has failed to provide full and frank disclosure of his financial position. Additionally, given his evidence that expenses are met from the sale of assets or increased borrowings, I am not persuaded at this stage that transactions made by the respondent compel a conclusion that he has access to undisclosed income. Again, such a preliminary conclusion may well be displaced at a more substantive hearing at which cross-examination is permitted.
When regard is had to the totality of the Respondent’s contribution to the financial support of the children, the fact that the children currently attend private schools as a consequence of the parties’ agreement and the basis on which the current child support assessment is calculated, I am not persuaded that the Applicant has established special circumstances at this point in time.
However, if I am wrong in arriving at this conclusion, I turn to consider whether, having regard to the parties’ financial circumstances as outlined above, it would be just and equitable to make the order sought by the Applicant.
Is it just and equitable within s 117(4) to make the proposed order?
In Gyselman the Full Court said:[29]
Section 117(4) provides that ''in determining whether it would be just and equitable as regards the child, the custodian entitled to child support and the liable parent to make a particular order under this Division, the Court must have regard to . . .''the matters set out in paragraphs (a) to (g) of that sub-section. The Legislature has made it clear that the Court is required to undertake that task. However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).
[29] at 79,078.
I have taken into account the nature of the duty of each parent to maintain their children. I have also had regard to the evidence as to the proper needs of the children, noting that there was no challenge to the Applicant’s quantification of these in her Financial Statement, nor to the quantum of the costs met by the Respondent.
I rely on those matters outlined above and, having regard to the financial contribution the Respondent is currently required to make to the financial support of the children as a consequence of the combination of the terms of the 2014 order and the current assessment, I am not persuaded, on an interim basis, that it is just and equitable on the evidence before me to make the order proposed by the Applicant.
In the event that I am wrong in arriving at this conclusion, I turn to consider whether it would be “otherwise proper” to make the order proposed by the Applicant.
Is it ‘otherwise proper’[30] to make a departure order?
[30] s 117(1)(b)(ii)(B) of the Act.
I have had regard to the fact that the parties have the primary duty to maintain their children. As it was not submitted that the Applicant is entitled to an income tested pension, allowance or benefit, there is no need to consider the effect of the proposed order on any such entitlement or the rate of the same.
In so far as they are relevant, I again rely on those matters outlined above in support of my conclusion that it is not otherwise proper to make an interim order departing from the administrative assessment of child support payable by the Respondent.
Conclusion
For the reasons outlined above, I dismiss the application for interim relief.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 June 2015.
Associate:
Date: 22 June 2015
21