BARRETT & BENNINGFIELD - [2008] FMCAfam 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRETT & BENNINGFIELD

[2008] FMCAfam 754

CHILD SUPPORT – Child support agreement – child support terminating event – resumption of cohabitation.

CHILD SUPPORT – Child support agreement – discharge of agreement.

Childs Support (Assessment) Act 1989 ss.5, 7B, 12(2), 25(2), 81, 82, 83, 84, 93, 93(1)(g)

Gilmour (1995) FLC 92-591
Bryant (1996) FLC 92-690

Applicant:

MS BARRETT

Respondent:

MR BENNINGFIELD

File Number:

BRM 3219 of 2001

Judgment of:

Jarrett FM

Hearing dates:

26 February, 16 March & 9 May 2007

Date of Last Submission:

9 May 2007

Delivered at:

Brisbane

Delivered on:

3 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr Drysdale

Solicitors for the Applicant:

Hirst & Co.

Counsel for the Respondent:

Mr Baston directly instructed

ORDERS

That this matter be adjourned for mention to 9.30am on 11 June 2008 in the Federal Magistrates Court of Australia at Brisbane.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 3219 of 2001

MS BARRETT

Applicant

And

MR BENNINGFIELD

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Barrett for orders that:
a)Mr Benningfield pay to her the sum of $47,972.41 which she says is due and owing to her pursuant to the terms of a child support agreement;
b)an injunction to preserve certain property pending the payment referred to in paragraph (a) hereof;
c)an order for the sale of that property (both real and personal) in the event that Mr Benningfield does not pay any amount ordered to be paid, with consequential orders for the division of any proceeds of sale.
In her amended application filed on 12 February, 2007 she also sought orders that the child support agreement entered into between the parties on 4 August, 1998 be varied so as to discharge the operative clause thereof and insert in lieu an obligation on the part of Mr Benningfield to pay $1,100.00 per week until a child support terminating event occurs. At the resumption of the hearing of the application on

16 March, 2007, Ms Barrett, by her counsel, indicated that she no longer pressed that application.
Mr Benningfield opposes the orders sought by Ms Barrett and by his further amended response filed on 22 February, 2007 he seeks the following orders:
1. A declaration that by operation of law (including application of section 25(2)(c) of the Child Support (Assessment) Act 1989) any obligation of the Respondent to pay periodic or non periodic child support to Ms Barrett arising under the Child Support Agreement of 4 August 1998 ceased upon Ms Barrett and the Respondent resuming cohabitation at Property G in the State of Queensland in or about July 1999,
IN THE ALTERNATIVE THAT:-
2. That the obligations of the Husband under the Child Support Agreement of 4 August 1998 be varied so as to provide that:-
(a) (paragraphs 4.2.1, 4.2.2, 4.3 and 4.4 be discharged; and
(b) the Husband pay to the Wife of $280.00 per week for the support of [X], [Y] and [Z] whilst they remain living with, and in the care of, Ms Barrett.
3. Such further or other order as the Court may deem necessary.
4. That Mrs Barrett pay the Respondent’s costs of and incidental to the Application fixed in the sum of FOUR THOUSAND NINE HUNDRED AND FORTY SEVEN DOLLARS DOLLARS FIFTY CENTS ($4947.50) within 30 days of the date hereof.
At the resumption of the hearing on 16 March, 2006 Mr Benningfield, by his counsel, indicated that he sought the discharge of any arrears that might be owing pursuant to the child support agreement and termination of any ongoing obligation pursuant to that agreement. He no longer pressed the relief sought in paragraph 2(b) of his response.
In general terms therefore the issues that arise on the application are:
a)whether Mr Benningfield’s liability under the child support agreement to pay the school fees has ended; and if not
b)whether the agreement ought to be discharged.

Background

Ms Barrett and Mr Benningfield married in May, 1989. They have four children, the oldest of whom was born in November, 1989 and the youngest of whom was born in July, 1994. The parties separated on

10 February, 1997. They settled their property by way of consent orders made in the Family Court of Australia on 1 September, 1998.
On 4 August, 1998 the parties entered into a child support agreement. On the same day, the applicant signed a Form 102 Application for Acceptance of a Child Support Agreement by the Child Support Agency. That application together with an original and certified copy of the child support agreement was sent to the Registrar of the Child Support Agency for acceptance on 25 August, 1998. That agreement was accepted by the Registrar with effect from 4 August, 1998.
I am satisfied that from about mid 1999 the parties commenced to live together again at a property situated at Property G, Brisbane. They lived together for about 6 months until January, 2000. Mr Benningfield says that during that time the child support agreement was abandoned. Ms Barrett contends that it was not. Mr Benningfield’s evidence was that he continued to pay Ms Barrett the amount stipulated in the child support agreement although characterised those payments in his books of account as wages.
The husband is a [occupation omitted]. He has not remarried although was in a relationship with another woman for some time. They no longer pursue their relationship but she and her young daughter, until about March, 2006, occupied the property that is targeted by

Ms Barrett in these proceedings. She has not paid rent for her occupation of the property since about July, 2006. The respondent has taken steps to have her removed from the property, although that does not seem to have borne fruit until March, 2006.
Ms Barrett is not engaged in remunerative employment. She married Mr B in September, 2001 and is a [occupation omitted] by occupation. He has two children from a previous relationship, both of whom reside with Ms Barrett and him.
In December, 2005 Ms Barrett moved with Mr B from Toowoomba (where they were then living) to the Gold Coast, together with the children who were then living with them. The two boys of Ms Barrett and respondent’s relationship were enrolled at a private school on the Gold Coast (although one was already attending that school as a boarder) and the two girls were enrolled in a separate private school. They commenced attending those schools in the first semester of 2006.
In May of 2006 one of the parties’ children, [E], moved to live with

Mr Benningfield in Brisbane. It is notable that since [E] has lived with Mr Benningfield, she has attended a private school in Brisbane and he has paid the fees associated with her attendance.
Ms Barrett complains that despite the terms of the child support agreement, and despite Mr Benningfield’s agreement that the children should attend private schools on the Gold Coast, since she has moved to the Gold Coast Mr Benningfield has failed to pay any school fees for the schools attended by their children (save for [E]).
Ms Barrett deposes that to ensure that the children have not been excluded from the schools her husband has paid the children’s school fees and associated expenses. In his affidavit filed 16 February, 2007 Mr B deposes that he has indeed made the payments that the wife asserts that he has made. Those payments total $47,971.41.

Mrs Barrett’s Case

The prima facie liability of the respondent to make the payment sought by Ms Barrett was not seriously challenged by Mr Benningfield. The amounts claimed were not challenged and although there are some issues on the affidavits about the circumstances in which the children came to be schooled on the Gold Coast, a resolution of those issues are not determinative of the matter. The case is more about the issues raised by Mr Benningfield’s answer to Ms Barrett’s application.

The Respondent’s Contentions

The Respondent’s primary submission is that the application for arrears ought be dismissed because:
a)any liability to pay for the children’s school fees under the enforceable child support agreement ceased as a matter of law when the parties reconciled and the children and the parties lived together; or alternatively
b)any liability to pay for the children’s school fees under the child support agreement ceased when Mr Benningfield’s liability to pay child support ceased on 17 December, 2001.
He also submits that, if the child support agreement remains in force, there are circumstances that justify the setting aside of the agreement and discharging any accrued arrears.
Counsel was unable to refer me to any case in which the issues raised by the respondent had been considered. On 16 march, 2007 I made a direction that:
1. That the Child Support Registrar be invited to provide submissions in respect of the following issues arising in this matter:
a) Whether a child support terminating event occurred in July 1999 when the parties reconciled.
b) Whether:
(i) the Applicant elected or obtained an end date of 17 January 2001 for the assessment of child support for the parties Children;
(ii) that election operates as a child support terminating event; and
(iii) the Respondent’s liability to pay child support (periodic or otherwise) is affected by that election.
c) Whether the Court has any jurisdiction to make any order in respect of the child support agreement made on 4 August 1998.
d) Any other issues arising between the parties in these proceedings.
No response was received from the Child Support Registrar.

Statutory framework

The parents of an eligible child who want to give an effect to an agreement between themselves for child support payable for a child may enter into a child support agreement[1]. That is consistent with the objects of the Act, namely:
a)to permit parents to make private arrangements for the financial support of their children; and
b)to limit interferences with the privacy of persons[2].
The children the subject of the agreement between the parties in this matter are eligible children[3].
Child support is defined in s.5 of the Act to mean “financial support under this Act, including financial support by way of lump sum payment or by way of transfer or settlement of property”.
An agreement about child support between the parents of an eligible child will be a child support agreement if it complies with the requirements of ss.82, 83, 84 and 85 of the Act. It was not suggested that the agreement in this case failed to comply with any of those requirements. For the purposes of Mr Benningfield’s argument, it is necessary to particularly record that:
a)s.82 was complied with because the children were children in respect of whom an application for administrative assessment could have been made[4];
b)s.83 was met because, having regard to the definition of eligible carer[5] and the qualifications necessary to bring an application for administrative assessment of child support[6], the agreement was made between a person (Ms Barrett) who was entitled to make an application for administrative assessment of child support for the children in relation to whom the agreement was made on the day on which the agreement was entered into and a parent of those children (Mr Benningfield).
The effect of the acceptance of a child support agreement is set out in s.93 of the Act. Apart from the other matters covered by that section, it provides that where child support is not already payable when a child support agreement is accepted by the Registrar then:
a)a person to whom child support is to be paid or provided under the agreement is a carer entitled to child support in relation to the child; and
b)a person by whom child support is to be paid or provided under the agreement to the carer entitled to child support is a liable parent in relation to the child and the carer entitled to child support; and
c)child support is payable for the child by the liable parent to the carer entitled to child support; and
d)the child support is payable in relation to the days in the period:
i)beginning on a day to be worked out by reference to ss.93(1)(g)(i)(A), 93(1)(g)(i)(B) or 93(1)(g)(i)(C) of the Act; and
ii)ending on the day immediately before the day on which a child support terminating event happens in relation to the child, the carer entitled to child support, the liable parent or all 3 of them.
In the present case, there is no evidence that prior to the acceptance of the child support agreement between the parties there was any administrative assessment of child support. It seems that s.93 had application to the parties and their child support agreement.
Child support terminating event is defined in s.12 of the Act. Sub-section 12(1) relates to events happening to or in respect of the children the subject of the agreement. It was not submitted that any of those matters were relevant to this application.
Sub-sections 12(2) and 12(3) make provision about carers entitled to child support and liable parents. In each case, a child support terminating event happens upon the death of the relevant person. In the case of a liable parent, a child support terminating event also happens if the liable person ceases to be a resident of Australia. Neither of those matters have application to Mr Benningfield.
Relevantly however, a child support terminating event will occur if

Ms Barrett ceases to be a carer entitled to child support[7].

Mr Benningfield argues that the parties reconciliation robbed

Ms Barrett of her status of carer entitled to child support, and that a child support terminating event occurred upon them recommencing cohabitation in mid 1999.
Where the child support concerned arose because of the acceptance by the Registrar of a child support agreement the term carer entitled to child support is defined to have the meaning given by s.93 of the Act[8]. That definition is to be applied to the term carer entitled to child support where it appears in s.12 of the Act. It is not the definition of carer entitled to child support provided in s.25 of the Act which is relevant.
Mr Benningfield’s submissions, however, focussed upon s.25(2) (and 25A(2)) of the Act. Section 25 of the Act, as at July 1999 (which in my view is the appropriate at which to consider the matter) was in the following terms:
25         Persons who may apply–eligible carers
(1)    An application made under this section is a carer application.
(2)    A person may apply to the Registrar under this section for administrative assessment of child support for a child if:
(a)    the person is an eligible carer of the child; and
(b)    the person is seeking payment of child support for the child from a person who is:
(i)    a parent of the child; and
(ii)    a resident of Australia on the day the application is made; and
(c)    the person is not living with the person from whom payment of child support is sought as the partner of that person on a genuine domestic basis (whether or not legally married to that person); and
(d)    the person complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws).
Mr Benningfield argues that if one cannot apply for an administrative assessment of child support because of the circumstances set out in s.25(c) of the Act, then the emergence of those same circumstances will work to deprive an applicant otherwise entitled to apply for an administrative assessment of their status as a carer entitled to make such an application. Thus, there is a child support terminating event.
Ms Barrett’s submissions recognise, however, that the true fulcrum of Mr Benningfield’s submissions is the meaning and application of s.93 of the Act. She submits that Mr Benningfield’s submissions fundamentally misconstrue the true meaning of s.93. Her counsel developed the submission in this way:
a)The Act is designed to facilitate the collection of periodic child support amounts by formulae where parents cannot agree. The result is a cash periodic payment.
b)The acceptance of an application for administrative assessment of child support results in the requirement for the Registrar to cause a child support assessment to issue for a registrable maintenance liability.
c)Consequently under the Child Support (Registration and Collection) Act 1988 the Registrar must register the particulars of the liability in the Child Support Register (section 24A of the Registration and Collection Act).
d)Section 17A of the Registration and Collection Act makes it clear that to be “a registrable maintenance liability”, the liability must be for the payment of a periodic amount for the maintenance of a child.
e)Section 93 of the Assessment Act, by its terms, is confined entirely to the payment of periodic sums between parents and not to payments such as the payment of school fees.
f)The other effect of s.93 of the Assessment Act is that periodic amounts registered are debts to the Commonwealth and enforceable by the Commonwealth. However the non-periodic amounts such as school fees are not enforceable other than by the beneficiary of the agreement as s.95 (3)(a) and (b) establish that they are to be enforced as if they were an order.
I cannot accept, however, that the Act is only designed to facilitate the collection of periodic child support amounts assessed by formulae where parents cannot agree. The Act deals with the payment of child support otherwise than by way of periodic cash payments. Indeed, as I have set out above, the term child support by definition includes financial support by way of lump sum payment or by way of transfer or settlement of property.
Nor can I accept that s.93 of the Act is confined to the payment of periodic sums between parents and is not concerned with lump sum payments or the provision of child support such as the payment of school fees. Section 93 is concerned with, amongst other things, identifying the fact and incidence of child support dealt with in a child support agreement. It is not concerned with the nature of the support to be provided pursuant to that agreement. That issue is the concern of s.84 of the Act.
The difficulty with Mr Benningfield’s argument, however, is that it fails to recognise that s.93(1)(g) and s.12(2) on the one hand and 25(2)(c) on the other are directed to different matters. The former is directed to when a liability for child support pursuant to a child support agreement might end; the latter to who may apply for the issue of an administrative assessment of child support. The two matters are not connected.
Carer entitled to child support is defined in two different ways in the Act[9]. Eligible carer is separately and differently defined in the Act. According to the combined effect of s.93(1)(g)(ii) and s.12(2)(b) a child support terminating event will occur when a carer entitled to child support ceases to be an eligible carer of the relevant child or children. If that is so, as I believe s.12(2)(b) provides, the proper inquiry is not one directed to whether s.25 of the Act remains engaged, but rather whether the carer entitled to child support continues to be an eligible carer. It is the definition of eligible carer that is central to the relevant enquiry, not whether the carer is not living with the person from whom payment of child support is sought as the partner of that person on a genuine domestic basis (the enquiry posed by s.25(2)(c)).
Relevantly, eligible carer is defined by s.7B of the Act as follows:
7B     Meaning of eligible carer
(1)    In this Act, eligible carer, in relation to a child, means:
(a)     a person who is the sole or principal provider of ongoing daily care for the child; or
(b)     a person who has major contact with the child; or
(c)     a person who shares ongoing daily care of the child substantially equally with another person; or
(d)     a person who has substantial contact with the child.

Section 8 of the Act describes the circumstances in which a person will be said to have major contact, substantial contact or shares ongoing daily care of children for the purposes of the Act. Section 8A of the Act prescribes those matters where there are court orders in place that provide for where children are to live and what contact there should be between a relevant child and a party, and those orders are being contravened.
The term sole or principal provider of ongoing daily care for the child is not defined in the Act.
Although it is not expressly stated in either ss.7B or 8 of the Act, there seems to be an underlying implication that the carer entitled to child support and the liable person are not living together. But in my view such an implication is misplaced.
As the Act recognises, the carer entitled to child support may not necessarily be a biological parent of the children the subject of the support. “Separation” of the parents of the subject children is, for that reason alone, irrelevant. If it were otherwise, it would be impossible for a carer who was not a parent of the relevant child to secure an assessment of child support, or enter into a child support agreement with the parents of that child whilst the parents still lived together. But the Act, at least as it stood in the period mid 1999 – 2000, permitted of such possibilities and continues to do so[10].
Where a carer entitled to child support and the liable person are the parents of the relevant child, the assumption that they are living together as partners on a genuine domestic basis may easily be drawn. It may not so easily be drawn where they are not parents.

A grandparent or a foster carer may seek an assessment of child support if, amongst other matters, they satisfy the requirements of ss.25 and 31 of the Act. They may also enter into child support agreements. If the carer was to share accommodation with the liable parent would it make any difference to their entitlement of child support?
In my view the answer to that question must be no. It will only be no if for the purposes of s.12(2) of the Act they have ceased to become an eligible carer. That in turn depends upon the level of care they are providing for the subject child having regard to the definitions in s.8 of the Act.
Ultimately therefore, the mere fact that a carer entitled to child support and the liable parent live together will not itself, and as a matter of law, bring a liability for child support under a child support agreement to an end. That is so whether the carer entitled to child support and the liable parent are both parents of the child concerned or they have some other relationship to the each other and the child.
The issue depends upon the circumstances of the co-habitation or resumption of co-habitation. Questions of fact and degree are plainly involved in making the relevant assessments required by s.7B of the Act. Although an applicant for an administrative assessment of child support must not be living together on a genuine domestic basis as a partner of the parent from whom the child support is sought at the time the application is made, the Act does not provide that a resumption of such a relationship is a child support terminating event. The Legislature could have provided as much in s.12(2) or s.7B using a provision similar to s.25(2) of the Act, but did not do so.
I think the question in this case turns on the facts of the particular case and is not answered, as Mr Benningfield suggests, by declaring that as a matter of law a resumption of cohabitation between the parties to a child support agreement puts an end to that agreement. Accordingly I decline to make the declaration sought by Mr Benningfield.
But, having regard to the facts of the case, did Ms Barrett cease to be a eligible carer for the purposes of s.7B of the Act? Mr Benningfield points only to the resumption of cohabitation to establish the relevant factual matters. He says that I should infer that Ms Barrett was no longer the person who was the sole or principal provider of ongoing daily care for the children. But I decline to draw the inference. He continued to make the payments required by the child support agreement, even though he marked them down as wages in his business. That fact suggests that the cohabitation was at best a trial.
Moreover, Ms Barrett would have continued to be an eligible carer if she shared ongoing daily care of the children substantially equally with Mr Benningfield. As s.8(2) makes plain the statutory formula for sharing ongoing daily care of a child in s.8(1) of the Act is not to be taken to limit by implication the circumstances in which a person shares ongoing daily care of a child substantially equally with another person.
There is no direct evidence that would assist in a determination about the level of care provided by either Mr Benningfield or Ms Barrett to the children. There is no basis in the evidence to find that Ms Barrett ceased to be an eligible carer upon the parties’ resumption of cohabitation in mid July, 1999.
The respondent’s second contention is that if his liability under the child support agreement survived his resumption of cohabitation with Ms Barrett, his liability under the child support agreement ended on

17 December, 2001 in any event. He argues that I should so find because:
a)At a date not able to be determined, Ms Barrett asked the Child Support Registrar to end the assessment for Mr Benningfield to pay child support for their children;
b)
The Registrar ended the assessment to pay support as and from

17 December, 2001;
c)The election to end the assessment is a child support terminating event for the purposes of s.12(4)(a)(i) of the Act;
d)The respondent’s liability for child support pursuant to the child support agreement ended by operation of s.93(1)(g)(ii).
This argument, however, fails for want of proof. There is no evidence that Ms Barrett elected by a notice that complies with s.151 of the Act that the liability of Mr Benningfield to pay or provide child support to her was to end from a specified day.
The only “evidence” that might have supported such an argument is a photocopy of an unsigned letter which purports to be from the Regional Child Support Registrar and which is simply attached to some written submissions given to the court by counsel for Mr Benningfield. The admission of the letter into evidence was not consented to by

Ms Barrett and no formal tender of it was made. It is not evidence in the proceedings and I do not rely upon its contents.

Discharge of the Child Support Agreement

Section 95(3) of the Act provides that a child support agreement under which child support is to be provided in a manner otherwise than in the form of periodic amounts to be paid to the carer entitled to child support are to have effect as if they were an order made by consent under s.124 of the Act. Section 98 of the Act provides that a child support agreement may be discharged, suspended, revived or varied by the court in the same manner and in like circumstances as the Court could discharge, suspend, revive, or vary an order of that kind made by it.
In order to vary a consent order made under the provisions of Division 4 of Part 7 of the Assessment Act, a court must be satisfied that a ground for departure mentioned in s.117(2) of the Act exists, and that it would be "just and equitable" and "otherwise proper" within the meaning of s.117(4) and (5), to make an order changing an existing order[11].
In Bryant (1996) FLC 92-690 the Full Court said:
"...beyond doubt that it is necessary for the Court in determining an application to vary the periodic payment provisions of a child support agreement, to proceed according to the provisions of s. 117(2) of the Assessment Act, and that no regard is to be had to other statutory provisions...which require a change of circumstances to be established before an order for child or spousal maintenance, or child support in a form other than periodic cash, can be varied.
…
"It must however be recognised that once an order has been made departing from an administrative assessment, before there can be a variation of (or "departure" from) that existing order, it must be established to the Court's satisfaction, that since the making of the existing order circumstances have arisen as a result of which the financial capacity of either party is now significantly reduced (s. 117(2)(a)), or the costs of maintaining the child have been affected (s 117(2)(b)) or the existing order now results in an unjust and inequitable determination of child support (s. 117(2)(c)). There is nothing in Gilmour to suggest to the contrary.
In the case of a child support agreement which has been accepted by the Registrar, and which provides for the payment of periodic child support, such an agreement takes effect as a departure order made by consent (s. 95(2)), and before the agreement can be varied by the Court, the Court must, again in our view, be satisfied that there has been some change which would give rise to one of the grounds for departure in paragraphs 117(2)(a),(b) and (c). Again, there is nothing in Liesert v Nutsch to the contrary.
If the situation was not as we have just proposed in the last two paragraphs, there would be nothing to stop a party who did not accept the terms of a departure order from immediately approaching the Court to have the matter re-heard, or to stop a party who thought better of the agreement which he or she had made, immediately seeking to vary the agreement.
Accordingly, Mr Benningfield must demonstrate on the evidence that, by reason of a change of circumstance, one of the grounds for departure provided for in s.117(2) of the Act exists. I must then be satisfied that it is just and equitable and otherwise proper to make an order discharging the child support agreement.
I am not satisfied that by reason of a change of circumstance, one of the grounds for departure provided for in s.117(2) of the Act exists.
Mr Benningfield does not demonstrate a significant change in his financial situation since the time the child support agreement was made. To do so requires a demonstration of his circumstances at the time the agreement was reached and the demonstration of a change. I am not satisfied that he demonstrates any change in his financial circumstances, at least for the worse.
Indeed, Mr Benningfield saw fit to purchase the unit the subject of the orders sought in these proceedings in 2002 and thereafter made payments on it. He permitted his then girlfriend to reside there on rental significantly less than the outgoings. His material indicates that he was paying $262.00 per week on the loan raised to purchase that property and paid in the 2005/2006 year $8,406.00 in body corporate fees and outgoings, being a total of $23,030.00. He was entitled to receive rental of $9,360.00, resulting in a shortfall for the year of $13,670.00. He funded that shortfall. But did so as a result of the choice made by him to purchase the “bricks and mortar” of the unit. He is entitled to do so, but cannot then rely upon it as a change in circumstances for the purposes of this application.
I accept that in 2006 Mr Benningfield spent more than $10,900.00 on holiday accommodation. That does not demonstrate a worsening of his financial situation.
Moreover, in 2006 Mr Benningfield gave his written consent to the children’s attendance at private schools. He was plainly liable for them.
I also accept that Mr Benningfield has now been sued by the Deputy Commissioner for Taxation for unpaid tax. But that action was only instituted shortly prior to the last hearing date and the outcome of it is unknown.

Conclusion

The orders sought by Mr Benningfield must be dismissed. I will hear the parties on the orders to be made on Ms Barrett’s application in light of these reasons.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Acting Associate: E Crutchfield

Date: 3 June, 2008

[1] Statutory references are to the Child Support (Assessment) Act 1989 as that Act was in force at the relevant time.

[2] s.4(3) of the Act

[3] All were born after the commencement date of the Act namely 1 October 1989.

[4] see s. 24 of the Act

[5] s.7B of the Act

[6] s.25 of the Act

[7] s.12(2)(b) of the Act

[8] s.5 of the Act

[9] ss.5, 31(1)(a)(i) and 93(1)(d)

[10] see for example Subdivision F, Part 5 of the Act.

[11] Gilmour (1995) FLC 92-591