B and M
[2003] FMCAfam 113
•8 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & M | [2003] FMCAfam 113 |
| CHILD SUPPORT – Application seeking declaration pursuant to s.107 of the Child Support (Assessment) Act and that child support payments be stayed – recover child support payments – basis of application is that Applicant is not the biological father of children – parentage testing determined that applicant is not biological father. Child Support (Assessment) Act 1989, ss.107, 114, 117, 117(1), 117(2), 117(3), 117(5), 143, 143(3) Tobin v Tobin (1999) FLC 92-848 |
| Applicant: | D B |
| Respondent: | M M |
| File No: | MLM 5255 of 2002 |
| Delivered on: | 8 May 2003 |
| Delivered at: | Melbourne |
| Hearing Dates: | 19 & 29 November 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Roberts Nehmer McKee, Solicitors |
| Counsel for the Respondent: | Ms Weiner |
| Solicitors for the Respondent: | Cohen Woolf & Weinberg, Solicitors |
ORDERS
IT IS DECLARED:
That pursuant to s.107 of the Child Support (Assessment) Act 1989 the respondent is not entitled to administrative assessment of Child Support from the applicant for the children R B and L B.
IT IS ORDERED:
That there be a departure from administrative assessment child support for the child A B:
(a)for the period 25 January 1999 to 1 December 2002 and Child Support payable by the liable parent D B for the said period be fixed at the amount paid by him to the Child Support Agency during that period and during the said period the liable parent D B not be entitled to any credit for any other payments made to the carer; and
(b)for the period 1 December 2002 until 31 December 2004 the liable parent’s child support income be reduced by $4015 per annum and otherwise calculated in accordance with the administrative provisions of the Child Support (Assessment) Act1989.
The Child Support Registrar be requested to amend the Child Support Register to give effect to these orders.
That all outstanding Applications be dismissed.
That all exhibits be returned to the parties by whom they were tendered.
That all subpoenaed documents be returned to the persons from whom they were subpoenaed at the expiration of 30 days from the date of these orders.
IT IS NOTED:
That the intention of these orders is that the liable parent will have no liability for any arrears of child support for the child A B prior to the
1 December 2002.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM5255 of 2002
| D B |
Applicant
And
| M M |
Respondent
REASONS FOR JUDGMENT
Introduction
The application brought by the father pursuant to the provisions of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) seeks a declaration pursuant to s.107 of the Act that the respondent wife was not entitled to an administrative assessment of child support for two of their three children, R and L. The basis of the declaration sought is that the applicant is not the biological father of the children. Previous orders for parentage testing resulted in a finding that the applicant is not the biological father of R and L and that was accepted by the parties.
In respect of the children R and L, the husband seeks that his liability to pay child support be stayed permanently and that pursuant to s.143 of the Act he recover from the respondent wife all child support paid by him in relation to R and L.
In relation to his ongoing child support obligations for the child A B (A), the third child of the parties who is the biological child of the applicant, he seeks that child support be fixed at $70 per week until such time as A turns 18. The applicant relies upon the fact that he will incur significant costs in having contact with A in the future.
Background
The husband and wife met in Brisbane in 1989 and commenced a relationship. In June 1992 R was born and the parties both conducted themselves on the basis that the husband was R’s father.
In April 1993 the husband was posted to Townsville for work and the wife and R followed him and they lived together until March 1994 when the wife moved to Brisbane.
In April 1994 the husband spent some time in Brisbane with the wife and in May 1994 the wife informed the husband that she was pregnant.
In September/October 1994 the wife moved with R to Townsville and the parties reconciled. In 1995 L B was born. In August 1996 the wife became pregnant again and the parties decided to marry. They were married on 1 November 1996 and in the same month the family moved to Darwin where the husband was posted. In May 1997 A B was born.
In March 1998 the family all moved to Albury/Wodonga where the husband was posted. In July 1998 they separated under the one roof and in January 1999 the husband physically moved out and the wife made arrangements to register with the Child Support Agency and assessments were raised in relation to the children.
In March 1999 the wife moved to Canberra with the children to be with her new partner. The parties were divorced in November 1999.
In January 2000 the wife moved back to Albury/Wodonga with the husband, following an agreement that the husband would care for the children for 12 months. In June 2000 the husband was posted to Townsville but ultimately the wife did not follow him to Townsville with the children and despite some efforts at reconciliation, the parties did not reconcile. In August 2001 an issue arose over a phone bill and child support and at about this time L informed the father that he had "met his other daddy".
The issue of parentage was then raised and led to the parentage tests which ultimately established that the husband was not the father of R or L.
Child support assessments and amounts of repayment sought by the husband
Period 1: 25 January 1999 to 30 June 1999 (156 days)
During this period the child support assessment was for R and A only. The husband contends that if he was correctly assessed at 18 per cent for one child the annual figure should be $5732 and the amount that he should have paid was $2449.84. He contends that he paid $4246 and that the overpayment which he claims is thus $1797.84.
Period 2: 1 July 1999 to 9 December 1999 (162 days)
The husband was assessed in relation to two children and contends that if correctly assessed for one child the annual figure should be $5995. The amount he should have paid for this period is $2483.26. He contends that he paid $4020 and thus the overpayment claimed is $1536.
Period 3: 10 December 1999 to 2 June 2000 (175 days)
The husband was assessed for two children and contends that if assessed for one child the annual figure would be $5595. The correct amount payable during this period would therefore be $2682.53. During this period he contends that the income was pooled as the parties lived as a family from January 2000 to June 2000 and that as he paid rent for the married quarters and food and clothing for the children, he paid at least the 27 per cent that was assessed and had he paid the 27 per cent directly the amount would have been $4024. He thus contends that he overpaid by $1341.47.
Period 4: 3 June 2000 to 17 July 2000 (44 days)
The husband was assessed for three children during this period. He contends that if correctly assessed the annual figure would be $5595 and the amount payable during this period would be $674.46. During this period he contends that he paid the respondent $3500 into her credit account in June 2000 and had given her $400 in cash before departing Albury/Wodonga. He contends that he intended these payments would cover living expenses and relocation expenses for her and the children. He contends that taking into account the moneys he paid her over and above the amount of what the child support should have been, the overpayment is $3225.54.
Period 5: 18 July 2000 to 30 September 2000 (74 days)
The applicant contends that the annual figure if correctly assessed would be $5595. The figure payable for the period would be $1134.33. The applicant contends that he paid amounts of between $180 and $335 per fortnight directly into the bank account of the respondent based on an estimate of paying about $200 per fortnight he contends that he paid about $1000 which is the figure which approximates what the child support would have been.
Period 6: 1 October 2000 to 31 July 2001 (304 days)
The applicant contends that if correctly assessed the annual figure would be $4933 and the amount payable $4108.58. He contends that between October and April he paid between $180 and $335 per fortnight. Averaging this sum to about $200 per week produces $260 which he contends was paid.
Between April 2000 and 31 July 2001 the applicant contends that he paid $2688 and thus the amount of the overpayment is $1179.42.
Period 7: 1 August 2001 to 31 October 2002 (457 days)
The applicant contends that if correctly assessed the annual figure was $4874 and the amount payable during this period $6102.51. He contends that he was making private payments up to 31 August 2002 and that the Child Support Agency began collecting payments after this date. Child support was stayed for all three children between 22 October 2001 and 18 April 2002. From 18 April 2002 the stay was lifted in relation to A and he contends that there have been no overpayments since 1 August 2002.
The total overpayments claimed by the applicant are $9902.94.
The evidence and findings of fact
Both parties agree that right from the start of their relationship it was one of many separations or, as described by the husband, an "on/off relationship". Both had relationships with other people. In October 1991 when the wife informed the husband that she was pregnant with R he was aware that she had been seeing another man. He had doubts about whether he was the father but was persuaded by the mother that R was his child. Whilst the wife may not have actually told the husband that R was definitely his, I am satisfied that she did not tell him that R was not his child, and led him to believe that the likelihood was that R was his. Indeed it is highly likely that the mother herself could not have been certain of R's parentage and no doubt the husband wanted to believe R was his child, as possibly did the wife. I prefer the evidence of the husband in relation to the strength with which he was persuaded that he was in all likelihood R's father and it is consistent with the manner in which the parties thereafter conducted themselves, including:
a)The fact that they moved in together in December 1991;
b)The husband was present at R's birth;
c)The parties continued their relationship and subsequently married;
d)The child support assessments always included R;
e)The question of R's parentage did not arise until August 2001 when the parentage tests were carried out.
L was born in 1995. Although the husband and wife had separated in March 1994, in late April the husband travelled down to Brisbane for a week's leave and stayed with the wife and R and during that time they slept together. The husband was aware that she had been seeing someone else. I am satisfied from the evidence that when she told him about her pregnancy the wife did indicate to the husband that the child might not be his and that he was aware of that possibility. They discussed the possibility of a reconciliation and I am satisfied from the evidence that they reconciled to provide a family life which was as much for the benefit of R as for the parties. Although he agreed to treat L as his biological child and did so, and no doubt again hoped that he was L's father, I find that he was always aware that there was a doubt about L's parentage. Unlike the position with R, well before the issue of parentage testing was raised, other issues in relation to L's parentage arose. For example, L was not included in the early child support assessments because the mother did not provide a birth certificate to the Child Support Agency in respect of L. For example from 25 January 1999 – the date of the first assessment – to 18 July 2000 L was not included on the assessment.
In 1998 when the parties were living in Albury/Wodonga as a family the question of having more children arose and the parties disagreed. The husband did not want any more children as they already had a family of three boys and be had a vasectomy which would have had to be reversed. I do not find that this fact is necessarily consistent, as the husband contends, with a firm belief that he was the father of all three children. It is consistent with a belief that the family unit consisting of himself and the wife and the three boys would continue as a family unit, notwithstanding any doubts about biological parenthood.
This is not a case in which the wife deceived the husband about the parentage of the two children who have subsequently been established as not being his biological children. Even if the wife was more optimistic about the likelihood of his parentage than was reasonable in all the circumstances, the husband was aware in respect of both children that the possibility of doubt existed. I accept that he, and probably the wife, hoped that he was their natural father, but he was not misled into believing it was certainly the case.
Period 1
During this period, the parties were separated and the wife with the children moved to Canberra to be with her new partner. The husband had contact with the children on a regular basis and during this period the husband was, by agreement of the wife, making payments into the credit union by way of child support for the two children on the assessment. The payments required were monthly payments of $708.42. The husband was in fact voluntarily making payments in excess of that sum (for both children) as was paying $386 per fortnight. He conceded that he was voluntarily making overpayments to the wife beyond his assessed obligations. The overpayment beyond the assessable amount was $1184. In my view, it would be reasonable to consider at least half of that sum as being an overpayment in respect of one child which should not be recoverable by the husband. From the amount of overpayment claimed of $1797.84 I intend to deduct the sum of $592 which it could be said the husband voluntarily overpaid for one child. The amount overpaid during this period therefore is $1205.84.
Period 2
During this period the parties were living apart and the husband was making regular payments to the wife by way of fortnightly transfer of funds. The overpayment during this period was $1536.
Period 3
There is some dispute between the parties as to what happened at the commencement of this period and whether or not there was an agreement that the children would live with the husband for 12 months. It is not necessary for me to determine that issue however because it is common ground that in January 2000 the parties were living together as a family. Nevertheless the child support assessment continued during this period. I am satisfied that the husband was paying rent for the married quarters, food and clothing for the boys and support for the family generally. However, as they were living together as a family I do not consider it is appropriate to credit the husband with any overpayment. I am satisfied he certainly met any liability for child support for which he had a legal obligation during that period and in the circumstances I would not exercise my discretion to treat any amounts paid during that period as an overpayment. In any event, because the husband was meeting family expenses his calculation of "overpayment" must of necessity be an estimate.
Period 4
In June 2000 the husband was posted to Townsville. The parties have differing versions of what occurred. I find that the parties did agree that the wife and children would move to Townsville at the end of the school term and that the husband moved on 2 June 2000. They put their furniture in storage in Albury/Wodonga and the husband says in his affidavit:
"If everything worked out in Townsville we would bring the furniture up."
The parties agreed that if things did not work out, the wife could take the furniture with her and move somewhere else with the children. The husband's evidence confirms the wife's evidence that there were uncertainties about the state of the relationship between them.
On 20 July the husband paid $320 into the wife's account. I am satisfied this was a payment of support for the family rather than a birthday present although it is not expressed in that way in the Credit Union statement. The husband paid $3500 into the wife’s account to enable the wife and children to relocate to Townsville. I am satisfied that when the relocation did not occur he had to reimburse his employer. The end result of this particular financial transaction was that the wife retained the $3500 and the husband had to reimburse his employer. He was not, however, out of pocket by $7000 as he alleges because the funds were made available for the purposes of relocation.
The result was that the wife received $3500 and the question is how that sum should be treated. To determine that there needs to be a consideration of the circumstances. I accept that the parties made arrangements for the wife and children to travel to Townsville to live with the husband although there were clearly reservations on both sides. Both parties agree that there was a possibility that things might not work out. There were problems between the parties after the husband had left. The wife commenced travel to Townsville in good faith but they argued when she was on route to Townsville and as a result she did not complete the trip to Townsville and instead drove to Melbourne and stayed there. The decision for the family to follow the husband to Townsville was made in circumstances in which there was no guarantee that the relationship would work out and in fact problems emerged even before the wife got to Townsville. Nevertheless, she set out in good faith and the wife retained the funds for relocation and the husband had to then repay them to his employer. However, the wife had to pay $1200 to obtain the furniture from storage. The overpayment calculated for this period is $3225.54. Most of that was in the period when the parties were not living together but the wife did have relocation expenses and the amount that she had to pay to get the furniture out of storage should be deducted. In all the circumstances, I am prepared to find that the husband overpaid by approximately $2000 during this period.
Period 5
As a result of money which the wife had received, the husband reduced payments made to her and calculates that he made no overpayments during this period.
Period 6
From October 2000 to April 2001 the husband paid about $200 per fortnight still consequent upon his having paid the sum of $3500 when the wife did not relocate. From April 2001 to July 2001 he made regular payments by transfer to the wife's bank account totalling $2688.
The parties have differing versions about what occurred in early 2001. I am satisfied in late 2000 the parties discussed the marriage but did not reconcile. In about October the parties agreed to start a new life together and started to make plans for a wedding. However by Christmas the wedding had been cancelled because the wife learned that the husband was seeing someone else in Townsville. The parties spent Christmas in Melbourne together and the husband took the children back to Brisbane so he could spend some time with the wife's family. I am satisfied that they then agreed that she would return to Townsville and that they would reconcile their relationship. The husband asserts that he did not want the wife to come to Townsville at that stage, however I find that he was ambivalent about it. He was at that stage in a relationship and had not been totally frank with her about his wedding plans with the wife. The husband was probably uncertain in his own mind about what he wanted to do and I am satisfied that he gave mixed messages to the wife and was seeing another lady and that the wife believed that he did want her to reconcile with him and she travelled to Townsville for that purpose. While she was there the wife learned that the husband was seeing another lady and contacted her. It was clear that neither of them knew what was going on with the other.
This all culminated in an argument between the husband and wife and the wife leaving to travel by bus to Mackay where her aunt and uncle lived. The children went to school nearby and the wife remained there, hoping that they might be able to reconcile.
In March 2001 the husband travelled to Mackay and the parties discussed their relationship. The parties again have differing stories of what occurred in Mackay. The wife asserts that they agreed to reconcile and she would travel to Townsville. The husband says that he had made up his mind that he did not want to reconcile. Having heard the parties, I prefer the wife's version of these events. I am not satisfied that the husband was certain in his own mind and again gave mixed messages to the wife. Alternatively, it may have been that each party thought they understood what the other wanted but did not.
The wife believed that there was a likelihood that the parties would reconcile and travelled to Melbourne to finalise her affairs and arrange for her removal. She accepted that the husband was still seeing his new partner but believed that he was finalising the relationship. While travelling back to Mackay she was involved in a car accident and told the husband that she was not able to get to Townsville. For this time both parties agree that the husband refused to take her to Townsville and told her that the relationship was over.
The wife then left Mackay and went to Brisbane where she intended to stay until she had saved enough money to go back to Victoria. She rented a home and had her furniture and personal effects delivered there and she enrolled the children at school in Brisbane. The arrangement for payment of child support to the wife corroborates that from April onwards the parties put their arrangement on a more formal footing and the husband made regular transfers to the wife's account of $336 per fortnight.
The parties did not live together during this period although it was a period characterised by a great deal of uncertainty as to what would happen and expense on the part of the wife in attempting to reconcile.
Period 7
During this period there was a stay of child support for three children between 22 October 2001 and 18 April 2002. On 18 April the stay was lifted in relation to A. The correct amount of child support payable during that period would be $6102.51. After August 2001 the husband arranged to make payments through the Child Support Agency. The child support payer transaction statement for the period 31 August 2001 to 14 November 2002 indicates that the husband made payments in that period of $1482.17, that is $3391.83 less than husband calculates was payable during that period for A.
Whether the payments being made by the husband to the wife's account should be treated as child support
The wife asserted that all payments prior to the husband asking the Child Support Agency to collect payments in August 2001 were voluntary and she did not regard them as child support. She asserted that in about January 1999 following the separation, the husband asked her to assume responsibility for the car and take over the liability for the car loan. She said that she agreed to do so as she was retaining the car but when she approached the bank she had insufficient income to allow the bank to transfer the loan to her. She asserts that the husband said that he would pay maintenance to her and says that he agreed she should ascertain the amount that he would be liable for the children. She says that it was on this basis she went to the Child Support Agency for an assessment but it was not to be collected by the Agency. The wife said that the agreed payment of $386 per fortnight into her bank was so that she could pay for the car and was not child support. The husband denied that and asserted that the payment was a payment of child support. Whether or not the payment was to enable the wife to make loan repayments on the car, I am satisfied that the amounts payable by the husband should be treated as a contribution towards the support of the children. The wife did not seek child support from the husband for this period and I am satisfied that despite the existence of the car loan the payments were effectively for the support of the children.
Telstra accounts
This was raised at a reasonably late stage of the proceedings. To be fair to the applicant, he did not become aware of the full extent of this debt until early November 2002. He became aware that there were two debts to Telstra of $1597.10 and $356.50, both relating back to 1999. These accounts were in his name in relation to the married quarters he had been residing at with the wife in Albury/Wodonga. The parties had moved there in 1998 and separated under the one roof in July 1998.
The husband took the boys to Brisbane at Christmas and upon his return in January 1999 the wife asked him to move out and said the marriage was at an end. He moved out in January and she moved to Canberra in March 1999. This debt was in addition to a debt which he was advised of in June 2001 of $1300 to Telstra. The husband paid that liability, although the bulk of it had been incurred when he had relocated to Townsville. It is clear from a perusal of the account itself that some of it was incurred while the parties were together. The majority was incurred in January/February and would have been calls between the wife and husband when he was in Brisbane, although some were obviously personal calls prior to her moving to Canberra in March 1999. I regard it as relevant that although the husband paid the earlier Telstra account the November account is a liability which he has to meet.
The Law
There is no dispute in this matter that a declaration pursuant to s.107 of the Act declaring that the wife was not entitled to an administrative assessment of child support for R and L should be made, as there is no liability on the part of the husband. A child support liability does not arise unless the payer is a natural parent of the child, an adoptive parent or a person deemed to be a parent because of an artificial conception procedure (See Tobin v Tobin (1999) FLC 92-848).
Section 143 applies where an amount of child support is paid by a person to another person and the person is not liable or subsequently becomes not liable to pay the amount to the other person, when the amount may be recovered in a Court having jurisdiction under this Act. The power to order payment is an entirely discretionary one and is to be exercised by the making of such orders as the Court considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the children (s.143(3)). The Act itself gives no guidance as to how that discretion is to be exercised.
The child support paid is not restricted to child support paid to the Agency and can be payments made directly to a party by way of child support. However, the section operates where a child support liability has existed and the payer is subsequently determined not to be liable. Accordingly payments made prior to any child support liability would not be recoverable under this section.
The exercise of discretion
The applicant contends that the wife was at best reckless and at worse deceitful towards him as regards paternity of both R and L.
I do not accept that to be the case. This is not a case where the doubts about the children's paternity were kept from the applicant. I am satisfied that the applicant was aware that there doubts about L's paternity and about R, although I find that the mother did lead the father to believe in relation to R that it was highly likely that he was his child. Nevertheless, deceit as to paternity was not an issue. Unquestionably the husband hoped that both children were his but he was not deceived as to the possibility, however remote, that they might not be.
That is important in my view because the husband thereafter made decisions about the support of the children and about the way in which the parties would conduct themselves as a family in this knowledge. The husband could at any time after the child support assessment was initially made in 1999 have requested paternity testing to satisfy himself that he had an obligation to support the children.
He is not to be criticised for this because the actions he took were clearly done on the basis that both he and the wife accepted that they had a family unit and the issue simply did not arise. Their relationship was one which was described as "on/off" for a number of years and did not finally break down until mid-2001. Even since that time the husband regards himself as having an important role in the children's lives and there are orders for him to have contact with the children albeit that there are some problems with the contact with R. This reflects the reality of the ongoing personal relationship between the husband and the children. It is a relationship based upon the fact that he has been a father to all three of them and they have regarded him as such. It is in that context that the payments made by him occurred.
Insofar as the wife is concerned she conducted herself on a similar basis to the husband, namely that despite their interpersonal difficulties, they had a family unit comprising the husband, wife and three children. There were periods of time up until their final separation when both of them were genuinely trying to reconcile despite their personal difficulties and the other relationships which each of them had at times. The wife has not in the past pursued the biological father of the children for child support, which is again commensurate with the way in which these parties conducted their lives together, as a family.
I take all of the matters to which I have referred into account and note that since August 2001 the husband has paid considerably less child support for A than was otherwise due. Having regard to the financial circumstances of each of the parties and to the history of their relationship, in my view a just and equitable result would be a situation where in effect the slate is wiped clean, there are no arrears for child support payments pursuant to any administrative assessment payable by the husband to the wife nor any requirement for her to repay him for amounts paid to her.
The husband's application for departure
The applicant seeks a reduction of child support in relation to the child A on the basis that he will incur significant costs in having contact with the child in the future.
Section 117(1) of the Child Support (Assessment) Act provides that where the Court is satisfied that one or more of the grounds for departure mentioned in sub-section (2) exist and that it would be just and equitable and otherwise proper to make a particular order under this Division, the Court may make a departure order departing from provisions of an administrative assessment.
Section 117(2) of the Act provides a ground that where in the special circumstances of the case the Court is satisfied that the capacity of either parent to provide financial support for the child is significantly reduced because of the high cost involved in enabling a parent to have contact with any other child or another person the parent has a duty to maintain (in this case the cost of contact between the father and R and/or L) and, that in the special circumstances of the case the cost of maintaining the child are significantly effected because of the high cost involved in enabling a parent to have contact with the child (in this case the child A), the Court may depart from an administrative assessment.
Thus the father's application for departure is really put on two grounds: one is the high cost of contact itself, and the other the commitments in the cost of contact to the children for whom he is not obliged to provide child support.
The Act also provides that for the purposes of considering these grounds a parent's costs involved in enabling a parent to have contact with a child can only be high for the purposes of either of the grounds relied upon if, during the child support period, they total more than five per cent of the amount worked out by:
a)Dividing the parent's child support income for the period by 365; and
b)Multiplying the quotient by the number of days in the period (s.117(3)).
The husband's contact arrangements
On 8 August 2002 the Federal Magistrates Court at Melbourne made orders for contact between the father and the three children R, L and A. The orders provided that the children live with the wife and that the father have the following contact in the event that he is living more than 250 kilometres away from the wife:
a)For the whole of the June/July school holidays each year commencing on the first Saturday and concluding on the final Sunday;
b)For each long summer vacation for four weeks each year as follows:
(i)from 22 December 2002 until 17 January 2003;
(ii)in 2003/2004 and alternate years thereafter for the second half but concluding two days before the children commence school; and
(iii)in 2004/2005 and alternate years thereafter for the first half commencing Saturday after the school year ends.
c)By telephone each Tuesday and Thursday between the hours of 6.30 pm and 7.30 pm and on each of the father's birthday, children's birthdays, Easter Sunday and Christmas day if the children are not having contact with the applicant on those days.
d)Upon the husband giving seven days notice of visiting the Shepparton/Tatura area for such reasonable period as agreed and failing agreement from 5.00 pm Friday to 5.00 pm Sunday and for two midweek evening meals for up to two consecutive weeks but only during school terms and incorporating the children's activities if possible.
The orders provide for involvement in school activities and receipt of material from school. For the purposes of the contact the wife is responsible for delivering the children to the Melbourne Airport and collecting them from the Melbourne Airport at the commencement and conclusion of each contact period and the husband is otherwise responsible for all travel costs and arrangements.
The husband is required to use his best endeavours to ensure that any flights leave after 10.00 am and land before 4.00 pm.
The orders also provide for contact arrangements if the parties are living within 250 kilometres of each other. In that case the contact arrangements provide for alternate weekend contact, which would obviously not involve the cost of airfares.
On 23 August 2001 the wife relocated the children from the Brisbane area to Tatura in Victoria. The wife married in January 2002. The husband had previously spent 13 years in the Air Force but retired from the Air Force in 1999. He has two children from his previous marriage who live with their mother but who will spend holiday periods with their father in Tatura. Mr M is not presently working but is hoping to obtain work as an aircraft mechanic once he has obtained his license.
The wife is employed and earns $669 per week. She receives a family payment of $235. She and Mr M and the children live in rented premises. They estimate in their household the cost of contact to Mr M's children is about $120 per week, although that figure involves a small portion of the petrol for the trips to Melbourne to deliver and collect the children which the wife estimates costs approximately $5 per week.
There was evidence given by the mother that there will be some expenses with speech therapy for A. She has not yet made any arrangements other than to ascertain that the private cost of the speech therapy is about $50 per visit which she cannot afford. She has not yet concluded exploration as to whether this expense could be covered by the private health cover available to the husband.
The parties agreed that as there are difficulties between the husband and R, that R would not be required to go for contact with the husband unless he wished to do so. It appears that he does not wish to do so at present and accordingly the existing situation is that A and L are the two children having contact with the husband.
The husband obtains travel assistance from his employer but is allowed only one subsidised trip every two years to the nearest capital city or to visit his next of kin. His partner is on his records as being his next of kin and the closest capital city is Brisbane. His partner and her daughter are also only entitled to travel with assistance every two years as they are now recognised as his dependents. Whilst the husband is stationed at Townsville he is not entitled to any travel relief for the cost of the children travelling from Melbourne to Townsville to visit him for contact. He is also limited in the availability of cheaper fares by the requirement that the children arrive at times at which they can be reasonably collected by the mother and returned to Tatura. If all three children were to attend on contact twice a year the total cost of travel would be $4217.10. If only A and L attend, the total cost would be $2811.40.
One of the difficulties in coming to a decision about the high costs of contact is the uncertainty as to whether all of the children will go. There is some uncertainty as to whether L would go on all contact. In all the circumstances, it would seem to me that I should find that the cost involved would be the cost of two children. There may be occasions on which only one child goes. There may be other occasions on which all three go and the cost estimate based on the costs of two children would seem to be the most realistic outcome.
The husband is on a salary of almost $40,000 per annum. His present partner earns $28,500 per annum and is responsible for the support of her daughter. The husband does not own his own home and rents accommodation from his employer.
From the husband's child support income amount for the current child support period, by the time he pays his tax, his rent and child support, health insurance (which apparently covers all three children) and his car loan, he does not have a significant amount left at the end of the week. He is presently paying a bill of sale in relation to his motor vehicle and is repaying a loan incurred for legal fees in relation to contact issues and has outstanding legal fees. He still has a debt to his employer and he has the Telstra debt to which I have referred in these reasons.
The current child support assessment provides that the husband's child support income amount is $39,791. Five per cent of that sum would be $1989.55. Costs will exceed five per cent if either L or R attend on contact. I am satisfied that A has never travelled to Townsville without his brothers and the husband does not want to separate A from his brothers. I am satisfied that it is likely that L will attend contact with A and that the cost of contact for a child other than A should be taken into account. The current monthly rate of child support for A is $420.75. The husband seeks to reduce child support to a weekly rate of $70 which equates to a monthly rate of $303.
I propose to follow the approach adopted by Kay J in Houlihan & Houlihan (1991) FLC 92-248. That approach is to consider the amount the husband spends in excess of what the statute thinks is appropriate. It is to treat the husband in a like manner to somebody in a similar circumstance by notionally reducing his child support income by the sum equivalent to the amount he would have to earn to have $2811 in his pocket, which is the cost of the two air fares to which I have referred. Taking into account his marginal tax rate of 30% the amount he would have to earn to provide him with $2811 after tax is $4015. If this amount is deducted from his child support income amount annual payment of $4326 or $83 per week is produced. In the circumstances I am satisfied that this process a just and equitable result and also preserves the integrity of the child support assessment scheme as Kay J wished to do in Houlihan & Houlihan (1991) FLC 92-248.
I am satisfied that that reduction would be a just and equitable result having regard to the matters in s.114 of the Act. I take into account the fact that the wife is not receiving child support for L or R, however she has the option available to approach the biological fathers. In addition she will have the assistance of Mr M, certainly once he starts to obtain some employment, which is likely. She herself is working. Apart from driving the children to and from Melbourne Airport she is not otherwise responsible for the cost of contact.
Having regard to the financial circumstances of each of the parties I am satisfied that the order is just and equitable in terms of s.117(4) and otherwise proper pursuant to s.117(5). In this case both of the parties are working and the responsibility for the support of the children falls primarily to them.
Cost of parentage testing
A dispute arose as to whether the wife should reimburse to the husband $700 for parentage testing. An order has already been made for payment of this sum. I regard it as independent of any child support and it should remain the wife’s liability and be paid forthwith to the husband.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 1 October 2003
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