Bamkin and Tate (No.2)

[2013] FCCA 2048

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE (No.2) [2013] FCCA 2048

Catchwords:
CHILD SUPPORT – Departure Order – application to discharge departure order made by consent – change of circumstances – applicant bankrupt – where applicant failed to join the Child Support Registrar as a party.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.116

Child Support (Registration and Collection) Act 1988 (Cth), s.116

Cases cited:
Bamkin & Tate [2013] FCCA 1089

Applicant: MR BAMKIN

Respondent: MS TATE

File Number: SYC 1276 of 2008

Judgment of: Judge Scarlett

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Sydney

Delivered on: 10 December 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Shearman

Solicitors for the Respondent: (Direct brief)

ORDERS

1. Order 7 made by Consent on 18 December 2009 is discharged.

2. The parties must each forward a sealed copy of these Orders to the Child Support Registrar within seven (7) days with a request that an administrative assessment of child support be made as soon as possible.

3. All other Applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bamkin & Tate (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1276 of 2008

MR BAMKIN

Applicant

And

MS TATE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application to vary an earlier departure order made by consent on 18^th December 2009 and to waive all arrears of child support.

2. The Applicant filed an Application on 1^st July 2013, in which he sought three orders. The first order, relating to a Departure Prohibition Order, was dismissed on 13^th August 2013.[1]

   [1] Bamkin & Tate [2013] FCCA 1089

3. The Applicant presses the other two orders:

   2. That Order 7 of the Orders dated 18 December 2009 be discharged.

   3. That all Child Support Arrears and/or debt including any Late Payment Penalty debt owing from the Applicant be waived and a new assessment be made by the Child Support Agency based on current financial circumstances.

4. The Respondent filed a Response on 26^th July 2013 seeking dismissal of the Application.

5. The Applicant also filed an Application in a Case on 14^th October 2013 seeking the following orders:

   1. The Operation of the Order made on 18/12/2009 in relation to the collection of child support is stay[2] pending further order and outcome of an Application or Determination.

   2. Departure Prohibition Order made 31/10/2012 is stay Pending further Order and outcome of an Application for Review.

   [2] sic

6. The Application in a Case is misconceived insofar as the proposed Order 2 is concerned, as the Application relating to the Departure Prohibition Order has already been dismissed (see Bamkin & Tate[3]).   

   [3] supra

Evidence and Submissions

1. The Applicant relied on his affidavits of 28^th June 2013 and 1 November 2013. The Respondent relied on her affidavit of 8^th October 2013. The affidavits were read without objection.

2. It was agreed that the hearing would proceed by way of oral submissions without the need for oral evidence.

The Applicant’s Case

1. The parties entered into Consent Orders on 18 December 2009. The Order that the Applicant wishes to discharge is Order 7, which provides:

   That by way of Child Support Departure the current administrative assessment of child support be varied that:

   a.  The husband pay by way of periodic child support the sum of $300 per week first payment within 7 day until the child attains 18 years of age.

   b.  The husband pay invoiced private school tuition fees for the continuing attendance of the child at his current school or such other school that the parties agree.

   c.  The Husband continue to pay private health cover the child at the present level of cover with HCF until the child attains 18 years.

2. It is relevant that Order 8 of the Consent Orders provides:

   That the husband have leave to approach the Court on 7 days’ notice with respect to these orders in the event that the [T] Insurance Company ceases to pay the monthly Disability and Income Insurance to the Husband.

3. The Applicant deposed that he was previously employed as a [omitted] but in March 2007 he was diagnosed with a major depressive disorder which left him unable to work. He states:

   Accordingly since December 2007 I have been unemployed and have been in receipt of benefits from a disability claim from [T] Australia Limited “[T]” of $16,000 per month (Gross income).[4]

   [4] Affidavit of Mr Bamkin 28.6.2013 at paragraph [5]

4. On 24^th September 2010 [T] Insurance ceased making disability payments to the Applicant. On 1^st December 2010, as a result of a Debtor’s Petition which he filed, the Applicant became bankrupt. A Trustee was appointed on 1^st December 2010. The Applicant remains an undischarged bankrupt.

5. The Applicant annexed to his affidavit of 28^th June 2013 a copy of a letter dated 13^th March 2012 from Dr P, a psychiatrist who says that he has treated the Applicant since March 2007. He states:

   Mr Bamkin’s level of functioning would have to be significantly improved to the point he could perform his activities of daily functioning without significant anxiety before I would be happy to see him trying to go back to work and at this stage I cannot see this happening for some time. I am also concerned that as a result of his extended period off work and his significant losses that both his declines self-esteem and his motivation to return to work would have to be significantly improved before this was to happen.

   In conclusion, it is my opinion that Mr Bamkin continues to suffer from a moderate to severe depressive illness and that as a result of this, he does not have a capacity to work as he did in her (sic) pre-injury capacity as a [omitted]. I believe that he is also unable to work as a [omitted] in any capacity and I have serious doubt to his capacity to work in non-skilled work for any period of time beyond a few days at a time.[5]

   [5] Affidavit of Mr Bamkin 28.6.2013 annexure “D”

6. The Applicant also annexed to his affidavit of 1^st November 2013 a more recent report from Dr P, addressed to the Applicant, dated 24^th October 2013. In this report, Dr P states:

   The persistent daily depressive and anxiety symptoms have made it difficult for Mr Bamkin to function in his full pre morbid capacity…(The) only other work that Mr Bamkin has done recently was working for a few months in [omitted] role in 2011, but he was dismissed due to an inability to do the work. Mr Bamkin has since applied and been granted a disability support pension by Centrelink in 2012. Needless to say, I do not believe that Mr Bamkin has a capacity to work as a [omitted] and he has expressed on numerous occasions that even if he recovers, he does not intend to work as a [omitted] and has let his [omitted] registration lapse.

7. The Applicant submits that he no longer has the capacity to earn income sufficient to pay the sum of $300.00 per week and, presumably, the other payments under the departure Order. He told the Court that he receives a disability support pension of about $700.00 per fortnight from which the Child Support Registrar deducts the sum of $44.00 per fortnight towards his child support obligation.

8. He also submits that the Court should make an order waiving his existing Child Support Debt.

9. The Court asked the Applicant why the Child Support Registrar had not been joined as a party, noting that the Agency is responsible for collecting all child support payments. The Applicant said that the Child Support Agency was aware of the proceedings and awaiting the appropriate Court Orders.

The Respondent’s Case

1. It was put to the Respondent’s counsel, Ms Shearman, that the Court was aware that the Applicant was an undischarged bankrupt. Ms Shearman told the Court that her client did not seek a stay and wished to proceed with the matter.

2. The Respondent relied on her affidavit of 8^th October 2013 in which she deposes that she is difficult financial circumstances, being on a low income. She and the parties’ son, who was born [in] 2001, currently live with her parents who are pensioners in their late 80s and in ill health. They will be moving into nursing home at some time in the new year and the Applicant will need to find new accommodation for herself and the child.

3. The Respondent deposed that the Child Support Agency commenced collecting the payments under the departure Order in January 2011. It is her case that the Applicant is a deceitful person who has consistently concealed his assets and income and insisted on being paid in cash or in kind for his professional services.

4. The Respondent complains that the Applicant enjoys a luxurious lifestyle, including travelling overseas to Italy and Bali, and wears expensive clothes. She believes that the Applicant wishes to leave Australia is to deposit his cash in a bank in Uruguay. She states:

   Mr Bamkin would often say to me words to the effect of

   “Uruguay is like Switzerland, you can open a safe deposit and nobody will ever find it.”

   After we divorced and gone to court he told me many times words to the effect of

   “My money is in Uruguay and there is nothing you can do about it…”[6]

   [6] Affidavit of Ms Tate 8.10.2013 at [39]

5. Counsel for the Respondent tendered a certificate under s.116(2) of the Child support (Registration and Collection) Act 1988 (Cth), showing that the Applicant’s Child Support debt stood at $35,650.96 as at 14 October 2013.

6. It was submitted on behalf of the Respondent that the Applicant’s evidence was insufficient to support a variation of the Orders.

Conclusions

1. Whilst the Applicant’s case lacks some detail, it is clear that he is currently in receipt of a disability pension, which apparently brings him some $700.00 per fortnight. Out of this the amount of $44.00 is deducted each fortnight. It is also clear that the Applicant no longer receives any payments from [T] Insurance, nor has he done so since 24^th September 2010. Whilst the Respondent believes that the Applicant is hiding assets or income, there is no proof of this contention.

2. In my view, the Applicant no longer has the capacity to meet the obligations imposed on him by Order 7 made by consent on 18^th December 2009. The order should be discharged and the parties should revert to an administrative assessment of child support based on the Applicant’s current income. Annexed to the Applicant’s affidavit of 1^st November 2013 are copies of his Notices of Assessment of Income Tax for the years ended 30^th June 2011, 2012 and 2103. The most recent assessment shows a taxable income of $14,793.00.

3. The Applicant has not joined the Child Support Registrar as a party to the proceedings. That is a most unfortunate step, as it means that the Registrar has been given no opportunity to provide any information to the Court about the current Child Support Debt other than the total as at 14^th October 2013, which is set out in the s.116(2) Certificate. The Court also has no information about the Respondent’s bankrupt estate.

4. The Respondent has not established a ground for an order waiving the arrears of child support. The Court also has no power to make an order in respect of any late payment penalties imposed by the Child Support Agency.

5. Consequently, this part of the Application will fail.

6. I indicated at the hearing that I was not prepared to order a stay as set out in the Application in a Case, as the Applicant had not joined the Child Support Registrar as a party. A stay would have an immediate effect on the Child Support Registrar and it was a serious error not to have joined the Registrar as a party to this Application.

7. Thus, the Application will succeed only as far as discharging Order 7 made on 18^th December 2009. This means that the parties will revert to administrative assessment of Child Support. An order will be made that each party provides a sealed copy of these Orders to the Child Support Registrar within seven days so that an administrative assessment of child support may be made.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  2 December 2013