Barratt and Barratt

[2015] FCCA 3422

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRATT & BARRATT [2015] FCCA 3422

Catchwords:
CHILD SUPPORT – Determination – application for leave to make a determination in relation to assessments of child support – assessments more than 18 months old and less than 7 years old – two children – one child now an adult – Applicant on Centrelink benefits – applicant has been homeless for most of the last 5 years – where Respondent did not attend court on hearing.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.111, 112, 118

Federal Circuit Court Rules 2001, r.13.03C

Applicant: MR BARRATT

Respondent: MS BARRATT (ALSO KNOWN AS MS BARRATT ALSO KNOWN AS MS BARRATT)

File Number: SYC 3233 of 2015

Judgment of: Judge Scarlett

Hearing date: 15 December 2015

Date of Last Submission: 15 December 2015

Delivered at: Sydney

Delivered on: 15 December 2015

REPRESENTATION

Solicitor for the Applicant: Mr McCulloch

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

1. In accordance with section 112 of the Child Support (Assessment) Act 1989 leave is granted for the Court to make a determination under section 118 of the said Act in relation to assessments of child support payable by the Applicant to the Respondent MS BARRATT also known as MS BARRATT also known as MS BARRATT for the children X born (omitted) 1996 and Y born (omitted) 2000 for the periods:

   (a)1 February 2011 to 30 April 2011; and

   (b)31 December 2011 to 30 September 2012.

2. The annual rate of child support payable by the Applicant to the Respondent for the said children X born (omitted) 1996 and Y born (omitted) 2000 is changed by way of amendment to the minimum rate of child support payable for the periods:

   (a)1 February 2011 to 30 April 2011; and

   (b)31 December 2011 to 30 September 2012.

IT IS NOTED that publication of this judgment under the pseudonym Barratt & Barratt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3233 of 2015

MR BARRATT

Applicant

And

MS BARRATT (ALSO KNOWN AS MS BARRATT ALSO KNOWN AS MS BARRATT)

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application under section 112 of the Child Support (Assessment) Act 1989 (Cth) by the father of two daughters for leave for the Court to make a determination under section 118 of the Act with respect to the children. He has applied to the Court under s.111 of the Act because the child support assessments which he wishes to amend are more than 18 months old but less than seven years old.

2. The Applicant has applied for a change to the child support payable during the following periods:

   a)1^st February to 18^th April 2011; and

   b)1^st December 2011 to 30^th September 2012.

Background

1. The Applicant is the father of two daughters, X, who was born on (omitted) 1996, and Y, who was born on (omitted) 2000. The children live with their mother, who is the Respondent. It will be noted that the elder daughter, X, is now an adult, having attained the age of 18 years on (omitted) 2014.

2. The Applicant and the Respondent separated in 2001.

Procedural History

1. The Applicant commenced proceedings by filing an Application and supporting documents on 21^st May 2015. The Application was returnable on 14^th July 2015.

2. Sealed copies of the documents were served on the Respondent on 9^th July 2015.

3. The Applicant filed an Amended Application 16^th November 2015. A sealed copy of that document and supporting documents were served on the Respondent on 29^th November 2015.

4. The Applicant filed an Application in a Case on 24^th November 2015, seeking leave to amend the orders sought in his original Application. 

5. The Applicant’s solicitor, Mr McCulloch, wrote to the Respondent that same day, enclosing a sealed copy of the Application in a Case and informing her that the matter was listed for hearing before the Court on 15^th December 2015. The letter also advised the Respondent that if she wished to oppose the Application, then she or her solicitor should attend Court on the hearing date.

6. The Respondent has not attended Court on any occasion, nor has she filed any documents in relation to the proceeding.

7. In all the circumstances, it is appropriate to proceed with the hearing generally under the provisions of Rule 13.03C.

Evidence and Submissions

1. The Applicant relied on his affidavit sworn 14^th May 2015. He gave short oral evidence on oath.

2. It is the Applicant’s case that he last worked in 2009. He was employed as a (occupation omitted) but suffered an industrial accident which left him with blood clots in his cranium and left him unable to do any other work except for light duties. He was subsequently laid off by his employer and has not worked since.

3. The Applicant last filed an income tax return in 2009. He deposed that he has been in receipt of Centrelink benefits since January 2010. 

4. The administrative assessments of child support were based on provisional or deemed income amounts determined by the Department of Human Services – Child Support in the absence of income tax returns.

5. The Applicant deposed that he was in arears of child support of $1,361.85 as at 14^th May 2015, the date of swearing his affidavit. He was advised by the Department of Human Services that the Department intended to commence legal proceedings against him to enforce payment of the child support debt. He claims that payment of the child support debt would cause him significant hardship because he is a homeless person surviving on Centrelink benefits and has no disposable income that can be applied to the payment of the date.

6. The Applicant further deposed that he has been homeless for most of the last five years, although was been able to live in a refuge for homeless men run by the Salvation Army from late December 2014 until April 2015. He was then living on the streets until he recently obtained accommodation at a hostel run by the Wesley Mission.

7. The Applicant was diagnosed with a medical condition called achalasia in 2009 and has suffered from that condition since that time. The condition affects his oesophagus and stomach, which has the effect that he has difficulty swallowing and digesting food. This puts him constantly at risk of weight loss and malnutrition. The Applicant has been hospitalised on two occasions in 2014.

8. The Applicant deposed that he was not aware of the Respondent’s financial situation except that she is in paid employment, owns the property in which she resides and is the part owner of a holiday property on the south coast of New South Wales.

9. The Applicant also deposed:

   I have found it difficult to do anything to change my assessments until now, both because I have generally had no fixed address and little in the way of records and was unaware of the service provided by the Child Support Service at Legal Aid NSW.[1]

   [1] Affidavit of Mr Barrratt 14.5.2013 at paragraph [27]

Conclusions

1. In my view, the Applicant has clearly made out his case for leave for the Court to make a determination under s.118 of the Child Support (Assessment) Act 1989 in respect of the assessments of child support payable for the children. The Applicant has not had the capacity to pay, nor does he currently have a capacity to pay any child support debt. He would suffer hardship if he were forced to pay the child support debt.

2. It is perhaps fair to say that the Applicant would suffer even more hardship than he currently suffers when he is homeless and unable to obtain accommodation in a hostel for homeless people.

3. I propose to make the order sought.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  18 December 2015