B and M
[2004] FMCAfam 161
•8 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & M | [2004] FMCAfam 161 |
| CHILD SUPPORT – Application for an order seeking the exempted income of the applicant payer of child support to be varied pursuant to section 39 of the Child Support (Assessment) Act 1989 – where father asserted that the property settlement between the parties was, on face value, unjust and inequitable and that the order could have been understood as forming part of child support – issue of the merits of the father’s application on the grounds that the application had not been filed in accordance with Order 31B, Rule 12 of the Family Law Rules 1984 which were the relevant Rules in effect at the time of filing the application and that the application was misconceived on the grounds that the property settlement was effective on face value and makes no reference to child support – consideration of sections 75(2)(na) and 79(4)(g) of the Family Law Act 1975 – whether application was brought under Division 4 or 5 of the Child Support (Assessment) Act – lack of Financial Statement. |
Child Support (Assessment) Act 1989 (Cth), ss.39, 98X, 117, 117(1), 117(2)(c) 117(2)(c)(ii), 122, 123, 124
Family Law Act 1975 (Cth), ss.66R, 75(2), 75(2)(na), 79A, 79(4)(g)
Family Law Rules 1984, Order 31B, Rule 12
Federal Magistrates Court Rules 2001, Rule 21.15
Gyselman & Gyselman (1992) FLC 92-279
| Applicant: | D W B |
| Respondent: | W S M |
| File No: | MLM 345 of 2004 |
| Delivered on: | 8 April 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 8 April 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr G Atkinson |
| Solicitors for the Respondent: | Macgregor |
ORDERS
That the application for departure filed 19 January 2004 be adjourned to 23 July 2004 at 10 am for hearing with an estimated hearing time of one day.
That on or before 20 May 2004 the applicant father file and serve upon the respondent an affidavit setting out the facts relied on in support of the application attaching:
(a)a schedule setting out:
(i)the section of the Child Support (Assessment) Act 1989 (Cth) under which the applicant is made;
(ii)the grounds of the application;
(iii)the issues to be determined in the case.
(b)a copy of any decision, notice of decision or assessment made by the child support registrar relevant to the application;
(c)a copy of any document lodged by a party with the child support registrar or received by a party from Child Support Registrar relevant to the decision or assessment;
(d)if not otherwise filed, a copy of an objection, if any, under s.98X of the Child Support (Assessment) Act;
(e)a financial statement.
The respondent file any material upon which she wishes to rely on or before 18 June 2004.
That the respondent's costs be fixed in the sum of $1027 and the question of payment of those costs be reserved to the hearing.
It is certified that this was a matter pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 that it was appropriate for the briefing of an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 345 of 2004
| D W B |
Applicant
and
| W S MAN |
Respondent
REASONS FOR JUDGMENT
The matter before me is a rather unusual application. It is an application filed on 19 January 2004 by the father who seeks an order that the exempted income of the applicant payer be so varied from the amount as determined from time to time pursuant to s.39 of the Child Support (Assessment) Act 1989 (the Act) to an amount of $50,000.
Some explanation of why the order in those terms is sought is required. In broad terms, the applicant contends that at the time orders for property settlement were entered into between himself and the mother on 5 September 1997, such orders having been made by consent, it was his intent by provision of the Transfer of Property to the wife to provide for child support. It follows inferentially that he asserts in a sense that the orders for property settlement on their face were in a sense unjust and inequitable insofar as those orders could be taken to have dealt with the question of property settlement without an understanding that part of them related to child support.
It is clear that the orders did not have any reference to child support at all. The orders are detailed and included a provision that each of the parties transfer to the other an interest in different properties. The order also provided pursuant to the provisions of s.77A of the Family Law Act 1975 that the amount of $10,000 of the value of the property to be transferred to the wife is attributable to the provision of maintenance for the wife. There is no provision under s.66R of the Family Law Act in relation to any property being transferred which was for the benefit of the child. But I have reached the conclusion that s.66R applies to a child to whom the provisions of the Family Law Act apply, and that where the provisions of the Child Support (Assessment) Act to a child, as is the case here, then such a provision under s.66R would be inappropriate.
It is unarguable, it seems to me, that it was open to the parties at the time that the orders were entered into it, if it was their joint intent at that time, to enter into a child support agreement which reflected a contribution such as that which the father asserts was made which would amend his otherwise assessed child support liability, or it was open to the parties under the provisions of Division 5 of Part 7 of the Child Support (Assessment) Act to bring an application which could have been dealt with by consent for an order which provided for child support to be satisfied by the provision of a lump sum payment, for example, or a Transfer of Property other than non-periodic payments. It would also have been open to the parties at that time to bring an application under the provisions of Division 4 of Part 7 to depart from the provisions of the administrative assessments into the future in a manner which is now sought by the father.
It is clear and not contested that no such applications were then brought and there is nothing on the face of the orders made for property settlement which would suggest that there was anything else intended other than what is contained in the orders.
It is submitted on behalf of the respondent mother that the application should be dismissed on two preliminary grounds without considering the merits. The first is that the application is not made in accordance with Order 31B, Rule 12 of the Family Law Rules 1984, which rules were adopted by the Federal Magistrates Court Rules in 2001 in relation to child support matters and were the relevant rules in force at the date of filing of the applications and up until 29 March this year. Rules provide for the filing of an application under Form 63, which has not been strictly been complied with, although it does not seem to me that that is necessarily fatal on its own because the relief sought is reasonably clear. However, there is no evidence, other than for one period from 1 May 2001 to 31 December 2002, of the assessments made in any subsequent periods in which it is sought to depart from the existing assessments up until the date of hearing. Part of the father's case is a prospective departure into the future which the Court has power to do.
No financial statement has been filed on behalf of the applicant. An affidavit has been filed by the father, but the contents of that affidavit need to be considered and will be of some importance. The affidavit itself, which was filed on 19 January, is simply affirmed by the father and says in the body[1]. The affidavit includes matters which suggest that there was an agreement between the parties and sets out matters which it appears to me may be privileged as having been discussed at a conciliation conference. There are then a number of documents attached including orders and one document which is a notice of decision from the Child Support Agency (the Agency) dated 14 May 2001 which deals with the period from 1 May 2001 to 31 December 2002. There is also a statement of account from the Agency between 27 May 1997 and 17 March 2003.
[1] See paragraphs 1 to 18.
The document then annexes a summary of arguments and submissions by the father which contain his submissions as to the law and as to why he contends that the relief sought by him should be given.
The respondent contends that the rules require a Financial Statement, a proper form and a proper affidavit which deals with the matters in issue and that those documents are necessary because of the manner in which the Court has to deal with applications under Division 4 and under Division 5, if that is what this application is, but in particular in relation to Division 4 where the Court has to be satisfied about a number of matters. In essence, the respondent's argument is that the Court does not have the material because it has not properly been filed by the father which would enable the Court to carry out the three-part exercise that the Full Court of the Family Court says in Gyselman & Gyselman (1992) FLC 92-279 needs to occur; that is, the determination of whether there are special circumstances by reason of which there should be a departure. Secondly, whether it is just and equitable as regards the carer, the payer and the child. Thirdly, whether it is otherwise proper to make such an order.
The applicant has not really addressed in his submissions the failure to comply with the rules, other than I suppose to submit inferentially that his case is apparent from the documents and that there is sufficient to enable the matter to proceed. I will otherwise regard him as having made, again by inference, a general suggestion that the Court has power to dispense with the strict compliance with the rules and should do so.
The second argument advanced by the respondent is that the application is misconceived. The respondent argues that the property order is effective on its face, that it makes no mention at all of child support, that s.75(2), in any event, has as part of the considerations for the Court subsection (na) which says:
any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Thus, it is submitted for the respondent that without any notation on the orders, and more particularly, without any other agreement or application at the time which would suggest that the orders did contain some provision for child support, the effect of silence in the orders and the effect of s.75(2)(na) and s.79(4)(g) is that the Court can infer that if there was any child support element, then it has already been considered under either or both of those subsections.
It is contended by the respondent that the application is thus misconceived, that what the applicant is really trying to do is to set aside the property orders and that such an application can be only brought pursuant to s.79A of the Family Law Act and that the application should accordingly be dismissed without a hearing on the merits.
I considered whether the application was brought under Division 5 or Division 4 of the Child Support (Assessment) Act, notwithstanding that the relief sought is really, in my view, clearly relief under Division 4.
I am satisfied in the end that it is an application under Division 4 for a departure. In my view, in any event, Division 5 when one considers the matters under ss.122, 123 and 124 of the Child Support (Assessment) Act all has a prospective element. However, s.117 of the Act is couched in somewhat different terms. In particular, the section which it appears is being relied upon by the applicant in this case is s.117(2)(c)(ii).
The relevant subsection provides that a ground for departure, which under s.117(1) the Court must find in special circumstances of the case exist before an application could be successful, in this case reads that there is a ground for departure if:
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 because of:
(ii) any payments and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
The applicant argues that in the special circumstances of the case the application of administrative assessment is unjust and inequitable because the payment that he asserts he made under the Family Law Act in the property orders has not been taken into account as child support and should be and therefore the subsequent child support assessment has been unjust and inequitable.
The question it seems to me that I therefore have to determine is whether the application as it stands should be dismissed without a hearing on the merits because of either of the two reasons advanced by the respondent. As to the argument that the application is misconceived, I do not agree with that argument. Whilst there may be issues arising if the merits of the case are considered, which relate to the absence of any notations or reference at the time to child support, that does not, it seems to me, by itself prevent the bringing of an application pursuant to s.117(2)(c) which enables the Court to consider payments made under the Family Law Act or otherwise by the liable parent.
That leaves the argument by the respondent that failure to comply with the Family Law Rules is a matter that the Court should consider of relevance and importance in this case and that failure to comply with those rules should result in the Court taking the view that the application should be struck out. There is merit in that application. I need to consider each of the elements. First, as I have said, the application is not in the form of Form 63, but I think it is relatively clear what is sought and the affidavit of the applicant and his submissions make it clear as to why that is sought and the particular sections of the Child Support (Assessment) Act that are relied upon.
The affidavit is, as far as the evidence goes, relatively short and it is true that parts of it are, in my view, on the face of it objectionable and should be struck out. However, the affidavit on its face does assert that there the respondent asked the applicant to provide extra money to provide a home for James and that he did so. Although the evidence as to whether that is a relevant matter for child support purposes is fairly sparse, nevertheless the section itself does not require that there be an agreement between the parties, but rather that the Court find that a payment pursuant to the Family Law Act, if made, would otherwise result in an inequitable determination of the level of child support if not taken into account.
Thirdly, there is lack of a Financial Statement. In my view, the provision of a Financial Statement is important because under s.117 the Court has to consider a number of matters, including the justice and equity would requires a consideration of the financial position of each of the parties and the reasonable needs of the child. The affidavit is also deficient in that it does not provide the relevant assessments for the periods subsequent to 31 December 2002. In addition, there is no evidence, although the respondent says that he did, that there has been an objection pursuant to s.98X of the Act. The respondent says that this can be provided and it clearly goes to the question of whether the Court has jurisdiction to deal with the matter.
There are deficiencies in the evidence of the applicant. I have considered carefully whether I should dismiss the application on the basis of the deficiencies or whether I should give him the opportunity to remedy those matters before requiring the respondent to file any material. In my view, he ought to be given the opportunity to remedy those matters. Section 117(2)(c)(ii), as I have said, is fairly broad in its terms and on the face of it appears to enable the Court to consider a payment made under the Family Law Act in addition to the other matters that the Court has to consider in s.117 generally.
Therefore, in my view, there is sufficient ground for the application to be brought, although the merits of it are an entirely different matter. In my view, there should be an adjournment of it to another date and the applicant should be required to file the material which the rules would normally require him to file prior to that date, and I will deal with any other matters that arise from objectionable material in the affidavit.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 28 April 2004
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