BDT and PT - [2007] FMCAfam 1110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BDT & PT

[2007] FMCAfam 1110

CHILD SUPPORT – Administrative assessment – departure application for 4 periods – question of jurisdiction given amendments in January 2007 – father’s financial position – unsatisfactory evidence – father’s application dismissed.

Child Support (Assessment) Act 1989
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (No 146, 2006)
Family Law Act 1975

In the Marriage of Gyselman (1992) FLC 92-279
In the Marriage of Hides and Hatton (1997) 21 Fam LR 855; FLC 92-759

Applicant:

BDT

Respondent:

File Number:

SYM 7674 of 2006

Hearing dates:

19 October 2007

Date of Last Submission:

30 October 2007

Judgment of:

Sexton FM

Delivered at:

Sydney

Delivered on:

19 December 2007

REPRESENTATION

Counsel for the Applicant:

Ms R Winfield

Solicitors for the Applicant:

William Chan & Co.

Solicitors for the Respondent:

Legal Aid Commission of NSW

ORDERS

The father’s application for departure from all child support assessment periods from which he seeks to depart, be dismissed.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 7674 of 2006

BDT

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern child support for Fred [not his real name] who is 10 years old. The parties are Fred’s parents. Fred lives with the mother and according to the father, spends time with him each Saturday. The father said he had not paid child support for Fred since June 2005 because of his difficult financial circumstances. The father seeks an order that he pay $27.75 a month in child support from 7 January 2002. He is currently liable for child support in the sum of $26.67 a month[1]. The father was represented by Ms Winfield of counsel. The mother was represented by Mr Gross, solicitor.
[1] Exhibit 3.
The father adduced no evidence in relation to his current child support arrears. At the end of the hearing I asked Ms Winfield to file a copy of the father’s current Child Support Transaction Statement. This Statement was filed on 30 October 2007. I have marked the Statement, which covers the period 9 July 2001 to 29 October 2007, Exhibit 6.
The parties never married. The father was married to Ms Paula Teresa Lloyd [not her real name] at the time Fred was born. There were no children of that marriage. The father and Ms Lloyd separated in 1999 and divorced in the Year 2000. The parties agreed that the father and Ms Lloyd assisted in Fred’s support until the father and Ms Lloyd separated. The mother continued to live with Ms Lloyd and Fred. The mother said Ms Lloyd cared for Fred while she worked and they shared household tasks and expenses, though she fully supported Fred from her income. The mother says she stopped work to study full time in 2002/3, supported by Centrelink benefits, and has worked in real estate since 2003. The mother applied to the Child Support Agency for a child support assessment in July 2001, and she says the father paid “for a period.” The father claimed to have paid child support directly to the mother until 2002 “before the Child Support Agency took over.” In fact, the father’s liability with the Agency first arose in July 2001[2].
[2] Exhibit 6.
The father married Ms Yvonne Carol Chambers [not her real name] in 2001 and there are two children of that marriage Marcia [not her real name] aged 5 and Warren [not his real name], nearly 4. The father said his elderly mother also lives with him and his family.
The father at all relevant times has been self-employed in his own advertising business through a company known as GYA Pty Ltd of which he is the only director and shareholder. The father deposed to the business running badly from 2002 due to competition in the industry which led to a reduction in employees from 10 in 2002 to 3 in January 2007 and 2 in July 2007. The father deposed to the company owing him money and it being necessary for him to pay his income back to the company. The father claimed to have borrowed money from his family to meet business expenses and to his company owing him money. The father said[3] “due to domestic problems, I could not concentrate on my work and my business was running badly.”
[3] At paragraph 39 of his affidavit sworn 4 July 2007.
The father seeks to depart from the child support assessments for the following child support periods such that he pay $27.75 per month during each period instead of amounts as presently assessed:
a)7 January 2002 to 31 December 2003 (as varied by the decision of the Child Support Agency of 19 May 2003, for the period 7 January 2002 to 3 July 2002).
·    From 7 January 2002 until 8 October 2002, the father’s annual child support liability was assessed at $3,461.00 equivalent to a monthly liability of $288.42. The mother sought a Change of Assessment which resulted in an increase in the annual liability to $10,082.00 from 7 January 2002 to 31 December 2003 equivalent to a monthly liability of $840.17. This was later amended to an annual liability of $7,800, equivalent to a monthly liability of $650.
b)4 July 2002 to 31 October 2004.
·    From 1 January 2004 to 31 October 2004, the father’s annual child support liability was assessed as $7,800.00, equivalent to a monthly liability of $650.00.
c)1 November 2004 to 31 December 2005.
·    From 1 November 2004 to 31 December 2005, the father’s annual child support liability was assessed at $8,600.00, equivalent to a monthly liability of $716.67.
d)1 January 2006 to 8 July 2006.
·    During this period, the father’s child support assessment was based on a child support income amount of $39,868.00, equivalent to a monthly liability of $225.42.
According to the Child Support Transaction Statement for the period 9 July 2001 to 29 October 2007, the father has child support arrears of $34,909.52 as at 29 October 2007. He made a payment of $100 on 17 June 2005 and an amount of $2,244.28 was credited to his account on 26 June 2007[4]. The father has not made any other child support payments since June 2005. The father says[5] “I buy him [Fred] toys and presents and other things he needs.”
[4] Exhibit 6.
[5] At paragraph 47 of the father’s affidavit sworn 4 July 2007.
The father relied on his amended application filed 6 July 2007, as amended by Ms Winfield at the commencement of the hearing, his affidavits sworn 23 January 2007 and 4 July 2007 and his Financial Statement sworn 23 January 2007. The mother filed no material.

Jurisdiction

Jurisdiction is conferred on this court by s 99(1) of the Child Support (Assessment) Act 1989. Division 4 of Part 7 of that Act governs departure proceedings. Division 4 of Part 7 was substantially amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (No 146, 2006) which commenced operation on 1 January 2007. Section 115 was repealed and section 116 amended as provided in Items 17 and 18 of Schedule 4 of the Amending Act. Item 42 in Part 2 of Schedule 4 of the Amendment Act states that the amendments provided for in Items 17, 18 and 19 of Schedule 4 apply only to Part 6A applications and section 116 applications made after the commencement of the Schedule, that is, 1 January 2007. Under s 118(2B) of the Child Support (Assessment) Act 1989 an amendment which came into force on 1 January 2007, the court must grant leave before the court can change an assessment for a day in a child support period more than 18 months earlier than the day on which the application for the order under s 116 is made.
Mr Gross, the mother’s solicitor, submitted that in the present case, the Court has no jurisdiction to consider the question of departure from any day in a child support period more than 18 months before the father’s application is made, without leave being granted under s 112. Mr Gross contended that the husband could not rely on the Child Support Application for Departure, filed 27 October 2006 to ground the court’s jurisdiction for two reasons:
·The application was not served on the respondent mother until after 1 January 2007; and
·The father amended his departure application after 1 January 2007 and relied at hearing on an amended application, rather than the original application filed in October 2006.
I do not accept these submissions. I find the issue concerning service irrelevant. Although I accept that the father’s original application filed in October 2006 was not personally served on the mother in accordance with the Rules, the amendments concerning the 18 month limit do not apply to applications filed before 1 January 2007 but not served until after that date. In relation to the second submission, the father commenced these proceedings for child support departure in October 2006 before the amending provisions came into force. The fact that the father later amended his application is not relevant. It is common practice for initiating applications to be amended prior to final hearing. The father’s application was always an application for departure. The amending Act makes no reference to amended applications. If the legislature had intended to cover applications amended after 1 January 2007, in my view, it would have made that clear.
As the father made his departure application before the commencement of the Schedule, sections 115 and 116 as they existed prior to 1 January 2007, must apply.
Section 115 of the Act, as it existed prior to 1 January 2007, provides for applications for departure from administrative assessments in relation to periods beginning on or after 1 July 1992 to be made after an application is made to the Child Support Registrar under Part 6A of the Act. An application under Part 6A is an application to the Registrar for a departure from the assessment. Section 116 creates a further requirement in relation to any decision made under Part 6A on or after 15 December 1998 in relation to child support payable on or after 1 July 1999 whereby no application may be made to a Court for departure unless an objection under Part 6B to that decision, has been lodged by the applicant and determined. An objection must be lodged within 28 days of service of notice of the decision under part 6A. If out of time, a person may lodge an objection together with an application to the Registrar for an extension of time.
In relation to the child support period 7 January 2002 to 8 October 2002, the father was assessed at an annual child support rate of $3,461. The mother sought a Change of Assessment under Part 6A of the Act which resulted in an increase in the father’s child support liability to an annual rate of $10,082.00 from 7 January 2002 to 31 December 2003. The father lodged an objection which was disallowed by letter dated 18 July 2003[6]. I am therefore satisfied the pre-requisite procedural steps have been taken and the Court has jurisdiction to hear the father’s application in relation to the first child support period from which he seeks to depart.
[6] Exhibit 1 - Notice of Objection decision, pages 17A, 17B and 17C.
On 27 March 2003 the father applied for a Change of Assessment for the child support period 4 July 2002 to 31 December 2005. The Senior Case Officer reduced the amount payable for the period 4 July 2002 to 31 October 2004 to an annual rate of $7,800.00 and for the period 1 November 2004 to 31 December 2005 to an annual rate of $8,600.00. The father did not lodge an objection to the decision in relation to the period 4 July 2002 to 31 December 2003 within the statutory time frame. In January 2007 he applied for an extension of time to lodge an objection, which was refused by the Agency and subsequently on review, by the Social Security Appeals Tribunal. I am therefore not satisfied that the procedural requirements have been met in relation to the other child support assessment periods from which the father seeks to depart.
The court has a discretion under section 116(1)(b) of the Child Support (Assessment) Act 1989 as to whether or not to grant leave to hear an application for a child support period which has not been the subject of an application for change of assessment and objection. Mr Gross cross- examined the father about the long delay between July 2003 and October 2006 in the father taking further action with the Agency or initiating court proceedings.
The father, who speaks limited English, said he tried to take action with the assistance of the Legal Aid Commission at Burwood, but the Commission let him down. He said he could not afford to retain a private solicitor. I was satisfied, given the long history of the case and the nature of the financial material filed, it was in the interests of both parties in this case for the court to deal with the departure applications in relation to all the child support assessment periods from which the father sought to depart, at the same time.

The relevant law in proceedings for child support

Section 3 of the Child Support (Assessment) Act1989 contains the obligation that parents have a primary duty to maintain their children. Section 4 provides that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part VII include:
a)that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
b)that parents share equitably in the support of their children.
As already noted, the provisions relating to departure from administrative assessment in special circumstances are set out in Division 4 of Part 7 of the Act. The Full Court of the Family Court in In the Marriage ofGyselman (1992) FLC 92-279 set out a three step process that courts must follow in determining an application for a departure order under s117. The first step is whether one or more of the threshold grounds in s 117(2) is established. If a ground is established, the next step is whether it is just and equitable within the meaning of s 117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s 117(5) to make a particular order.
In In the Marriage of Hides and Hatton (1997) 21 Fam LR 855; FLC 92-759 the Full Court held that it is necessary for the Court to undertake the three stage process described in Gyselman for each child support year in respect of which departure is sought. Further the Full Court also said that regard may be had to the current circumstances of the parties:
By this we mean that not only must the judge apply the three stage process under section 117(2), (4) and (5) in relation to the circumstances of the parties as they existed in the child support year in question, but also in relation to the present circumstances of the parties (if at all relevant). For example, it may well be necessary in a particular case in addition to considering the circumstances of the parties in the past child support year in question, also to consider the present capacity of the payer to meet a new assessment, and/or the impact on a payee of any credit in the payer’s favour which might be created by a departure from an assessment for an earlier child support year.

Special circumstances – has the applicant shown a ground for departure?

The Amending Bill (No 53) requires the court to apply the current provisions of the Act. The father’s counsel told the court the father relied on s117(2)(a)(iii)(A) and (B) and on s117(2)(c)(ia)(ib) of the Child Support (Assessment) Act 1989 to establish a ground for departure.

The first ground

s 117(2)(a)(iii)(A) and (B) provide:
(a)That in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of commitments of the parent necessary to support: (A) himself or herself or (B) any other child or another person that the parent has a duty to maintain.
The husband’s counsel made no submissions in relation to this ground, nor did she refer me to any evidence on which the father relied to support his application under this ground.
The husband filed a Financial Statement, sworn in January 2007 in which he purported to set out his personal expenses, and his expenses for his wife and two children living with him as at that date. I am not satisfied this list of expenses is accurate. For example, the father does not particularise the expenses for food or household supplies for either his wife or his children. In any event, these expenses do not relate to the father’s expenses for himself and his dependents during the child support assessment periods from which he seeks to depart.
On a careful perusal of all the documentary evidence adduced by the father in this case, I find reference to some private expenses in documents the father filed with the Child Support Agency in relation to the change of assessment applications. However, the information is inadequate, and I am unable to make any findings as to the father’s expenses at the dates of those documents.
The onus is on the father to establish a ground for departure. Given the father adduced no cogent evidence as to his expenses for himself, his present wife or his two children from his present marriage, during any of the child support periods from which he seeks to depart from the Agency’s assessment, I am not satisfied that the father has established this ground for departure.

The second and third grounds

S117(2)(c)(ia) and (ib) provide:
(c)That in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the children because of the income, property and financial resources of either parent - s 117(2)(c)(ia) and because of the earning capacity of either parent – s 117(2)(c) (ib).
It is necessary to examine the evidence in relation to the father’s financial position in each of the child support assessment periods from which he seeks a departure order. This task has been difficult because the father’s evidence in relation to his financial position at the relevant times, is very poorly presented to the court.
As already noted, the onus is on the applicant father to establish a ground for departure.
The father adduced no specific evidence concerning his earning capacity beyond the evidence adduced in relation to his income in the relevant periods. The father did not challenge the mother’s earning capacity. In these circumstances, although raised by Ms Winfield as a separate ground relied on by the father for departure, I have not addressed the issue separately from the father’s overall financial position in each child support period.

The father’s income, property and financial resources in the first period 7 January 2002 - 31 December 2003.

Income. The father was self-employed in an advertising business trading through a company of which he is the sole director and shareholder, known as GYA Pty Ltd before this child support period and throughout this child support period. The financial information provided from the company shows the company received gross receipts of $440,903 in the 1998 financial year, $441,344 in 1999, $412,417 in 2000, $328,703 in 2001 and that thereafter to the year ending June 2005, the company receipts decreased to 188,317 in the 2005 financial year.

The father said he had a taxable income of $31,649 in the 1999 financial year, $31,027 in 2000, $37,611 in 2002, $40,531 in 2003, $39,868 in 2004 and $29,359 in the year ending June 2005. According to his taxation returns, the father earned his income by way of salary from his company and from rental income.[7] On the information provided, I am unable to make findings as to what amount of rental income he received from what investment source. The father does not provide a schedule of rental income.
[7] Annexure C to the father’s affidavit sworn 23 January 2007.
The father does not explain on what basis he worked out the income he took from the company in each of these financial years, nor does he explain why his taxable income increased in the 2003 financial year when the company’s gross receipts decreased.
Mr Gross, for the mother, did not cross-examine the father on his income figures.
I have difficulty ascertaining the father’s actual income position during this child support period. As already noted, the father gave no explanation as to how he calculated his salary from the company in the relevant 3 financial years. The profit and loss statements list the expense item for ‘wages’ as $150,701 in 2001, $158,151 in 2002, $150,727 in 2003 and $105,461 in 2004. The father did not produce wages records and did not adduce evidence as to how many people the company employed in each period, and at what salary rates. The father deposed to having 10 employees in 2002, which, after deduction of his own salary in 2002, would leave $120,540 in wages to divide between 10 employees. I find it difficult to reconcile these figures. Senior Case Officer Raice, in her Change of Assessment Decision of 19 May 2003[8], says the father told her in 2000 he employed 9 people, but that in 2003 he employed 4 people, including himself. This information is not consistent with his affidavit evidence.
[8] Annexure D to the father’s affidavit sworn 4 July 2007.
The father provided financial documents relating to his company for the 2002-2005 financial years. The accounts are not complete and it is not clear whether or not those accounts were lodged at the Taxation Office. However, the mother’s solicitor did not challenge the admissibility of the documents, nor did he challenge their contents. According to the profit and loss statements provided for the company for the 2002-2004 financial years, the company made losses of $66,303.55 in the 2002 financial year, $13,083 in the 2003 financial year and $29,878 in the 2004 financial year. According to those statements, gross receipts for the company during those years dropped from $322,595 in 2002 to $267,989 in 2003 to $188,659 in the 2004 financial year[9]. The company’s list of expenses in each of the 2002, 2003 and 2004 financial years included expenses for computer, internet, motor vehicle, and telephone which may have provided the father with some financial benefit in his private capacity. It is noteworthy that in his Financial Statement sworn in January 2007, the father included his company car and petrol as benefits he received from his employer company. Also included in the expenses for the 2002-2004 financial years were depreciation expenses and donations which would have been available to the father as income for child support purposes, although legitimate deductions for taxation purposes. While I accept the father’s evidence that his company’s gross receipts decreased during the period 2002-2004, on the evidence available, I am unable to draw conclusions as to how this impacted on the father’s actual disposable income month to month.
[9] Annexure A to the father’s affidavit sworn 23 January 2007.
Assets and Liabilities. In relation to the company, the Statements of Financial Position as at 30 June 2003 and as at 30 June 2004[10], state that the company has negative equity. The father did not provide copies of the ‘Notes’ referred to in the accounts, so I can make no findings as to the nature of the debts or to whom the father says they are owed. There was no challenge to this evidence by the mother’s solicitor. The father’s counsel submitted that on the basis of the figures provided, I should be satisfied the father’s financial position was increasingly precarious during the 2002-2004 period.
[10] Annexure A to the father’s affidavit sworn 23 January 2007.
While I accept, on the basis of these figures, the company was showing taxation losses, I am not satisfied I can draw conclusions from this evidence alone as to the father’s financial position during this period.
In relation to the assets and liabilities held by the father personally, during the period January 2002 to December 2003, the father included in his affidavit sworn in July 2007, amounts he said he received at the time of his property settlement with his former wife Ms Lloyd in 2001 and how he used those funds. I found his evidence in relation to these matters unreliable and unsatisfactory. The father did not produce a single document to evidence the property he received at that time. He provided no title searches, no bank statements, no cheque butts, no documents in relation to property purchases, no copies of transfers, and no mortgage documents. He asserted he had various debts at the time, but did not adduce evidence from anyone to whom he deposed to owe these funds. In particular, he said, by arrangement with Ms Lloyd, he received the following in 2001:
(a)$359,906, being (it seems half) the sale proceeds from a property in Southern Sydney (“the Southern Sydney property”);
(b)Inner Sydney business premises (“inner Sydney premises 1”) with an estimated value of $180,000 and an estimated debt of $60,000;
(c)Inner Sydney premises (“inner Sydney premises 2”) with an estimated value of $150,000 and an estimated debt of $100,000; and
(d)Property he refers to as being in the Central Business District of Sydney (“the CBD property”) with a value of $20,000 (He provides no details as to what this is).
In his Response to the mother’s application for change of assessment in early 2002, the father said he disposed of the CBD property in June 2000 for a figure which is difficult to read in the document, but appears to be $80,000. This is in addition to a property he said he sold for $344,000 in September 2000. He did not explain whether any or all of these funds were still available to him at the time of his arrangement with Ms Lloyd in 2001.
In the same affidavit, the father deposed to what financial arrangements he made following his arrangement with Ms Lloyd:
(a)He purchased a property in the Broadway area (“the Broadway property”) as his residence. He did not provide details of the purchase price or details as to the value of that property. He said he had a debt on the Broadway property of $305,000 and that he repaid a loan of $90,000 to his family in relation to its purchase.
(b)He spent $22,000 of the funds from the Southern Sydney property on a deposit for a property in the inner west of Sydney (“the inner west property”). He provided no other details in relation to that property.
(c)He said he repaid $49,800 to his sister Jill [not her real name], with no explanation as to why he repaid that particular amount.
(d)At paragraph 44, he deposed to a number of loans to himself from his family between 1 June 1998 and 31 May 2007. He deposed to owing Jill Thomson the sum of $60,000 by the year 2000, (not the $49,800 he said he repaid her in 2001), but did not refer to the alleged debt to his family of $90,000 in this paragraph.
As already noted, the father did not adduce evidence from any of his family members to clarify these alleged loan arrangements, nor any documents to evidence the loans, which he said were paid to him in cash. As already noted, the father did not adduce evidence as to whether any of these alleged debts were included in the accounts of the company. I found the father’s evidence in relation to these family loans so unsatisfactory as to be unreliable.
In attempting to make findings as to the father’s asset position in the period January 2002 to December 2003, I was not assisted by details of the father’s assets referred to in the change of assessment decision of Senior Case Officer Khadem who met with the father in March 2002. According to Senior Case Officer Khadem, the father agreed at the meeting with him, that he owned the Broadway property, and inner Sydney premises 1 and 2. The father did not mention to Senior Case Officer Khadem the inner west property, nor the CBD property, both of which he deposed to owning in 2001 at the time of his property settlement with Ms Lloyd. According to Senior Case Officer Khadem[11]:
In his Response, Mr Thomson advised that he had sold two other properties in 2000, the total proceeds of which amounted to approximately $424,000. Mr Thomson was not able to thoroughly explain to me how he had disbursed these moneys. He believes that some of it was used to pay off business and personal loans, some of it used to purchase his property in inner Sydney and some of it is currently invested in a business account to ensure that he has sufficient funds to pay for expected and unexpected business expenses this financial year.
[11] Page 4 of Notice of Decision dated 19 May 2003.
The father told Ms Raice at the change of assessment hearing in May 2003 that he owned three properties, at least one of which was unencumbered. The father told Ms Raice he had sold a further property in October 2002 for a net $200,000. Again, the father has not explained how these funds were used.
The father said in oral evidence “my family will help me when I have financial difficulties.” “Sometimes they give me money and never ask me to pay them back.” “I owe my family $20-30,000 but have not paid them back anything this year [2007].”
As a result of the lack of clarity in the father’s evidence about these matters, I am unable to make findings as to the father’s net asset position during this child support period, nor as to whether he had other financial resources available to him.
In oral evidence, the father said he had tried to sell one of his properties in 2003 but was unsuccessful. He adduced no corroborative evidence as to his efforts to sell any of his properties.
Section 117(7A) of the Act provides that in having regard to the income, property and financial resources of a parent, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing income; and…
As I am unable to make findings as to the assets held by the father during this child support period, I am also unable to make findings as to the father’s capacity at that time to derive income from any assets under his control.
Expenses. In relation to the father’s private expenses for the support of himself and any others he had a legal obligation to maintain during this period, the father provided no evidence to enable the court to make any findings. I am therefore unable to assess what funds were available to the father, after payment of his reasonable expenses, to meet his child support liability during this period.

The period 4 July 2002 to 31 October 2004.

I have already examined the evidence in relation to the father’s income, expenses, property and financial resources for this period until December 2003. The father’s taxation return for the year ending June 2005 provides for a taxable income of $29,359.
The father provided no specific evidence of his personal expenses during this period. The father provided an incomplete profit and loss statement for the company for the 2005 financial year. The company’s taxation return for that year shows the company in profit. I am unable to make findings as to what actual income was available to the father during this period.
The father did not provide specific evidence of his asset and liability position beyond what has earlier been referred to.

The period 1 November 2004 to 31 December 2005.

The father provided no specific additional evidence of his income, property and financial resources for this period, than I have already referred to. He adduced no evidence of his income for the financial year ending June 2006, no specific evidence of his personal expenses in that year, and limited information about his assets and liabilities in that year, insufficient to make findings as to his financial position.

The period 1 January 2006 to 8 July 2006.

The father adduced no further financial evidence which specifically related to this period. Evidence of his current financial position set out in his Financial Statement sworn in January 2007, relates to a period 6 months after the 2006 period has ended.

The father’s current financial position.

In his Financial Statement sworn in January 2007 the father deposed to an income of $1300 a week and to weekly expenses of $1,030 (though the total is incorrect in the document). On its face, it would be open to the court to conclude that the father had $270 a week available to him after meeting his expenses.
However, I am not satisfied the court can rely on the accuracy of the father’s Financial Statement:
·He included ‘nil’ for ‘all other expenditure’ when at No 60 of the document, he deposed to weekly expenses of $612.30.
·He deposed to an investment amount of $24,064 in an AMP account, but in oral evidence said he had no such funds.
·He deposed to a debt to his sister of $40,000 but to no other family members. In his affidavit sworn in July 2007, he deposed to debts to a number of family members and to those debts remaining unpaid. In oral evidence, the father said he owed his family $20,000-$30,000 and had paid nothing to them during 2007. His evidence on his debt position in July 2007 was therefore inconsistent with his sworn Financial Statement of January 2007 and I cannot make findings as to whether the father owes any money to any member of his family.
·He deposed to a mortgage to ANZ of $320,000 and another to Bankwest of $170,000, yet in oral evidence said he owed $170,000 + $130,000 in total in relation to inner Sydney premises 1 and 2.
·He did not complete the section relating to income from other members of his household. In oral evidence he said his wife had been working casually.
Mr Gross cross-examined the father in relation to the expenses listed in his Financial Statement sworn in January 2007. The father deposed to an education expense of $140 for his two youngest children. He told the court he was now paying $250 a week to the child care centre, as well as food expenses for the children of $40-50 a week. He said his daughter Marcia goes to after school care from 3-6 p.m. and his younger child is at child care 5 days a week. He said his wife sometimes has casual work as a waitress and attends English classes. The father conceded he made an error in his affidavit when he said his wife did not work.
The father deposed to superannuation entitlements of $91,460 but did not attach completed superannuation information forms as required to verify this position.
The father acknowledged that his family would help him financially when he needed help. However, the father said he has never asked his family for help to support Fred.
On the basis of the paucity of the evidence adduced as to the father’s current financial position, I make no findings as to the father’s current financial position.

Conclusion

The father has been represented in these proceedings from the time he filed his application in October 2006. He was represented by Ms Winfield of counsel on two occasions prior to the date of hearing. I made it clear to Ms Winfield that it was essential to an application of this kind, that the father adduce detailed evidence of his financial position during each of the child support periods from which he sought to depart from his child support assessment. I am not satisfied the father has done this.
The onus is on the father to establish a ground for departure. I have been unable to make findings as to the father’s income, property and financial resources in relation to the child support periods from which the father has sought to depart from the Agency’s assessment. I have been unable to make findings as to income he may be able to derive from the assets he holds. This is fatal to the father’s application for departure on the basis of his income, property and financial resources.
As the father has been unable to establish a threshold ground for departure, I dismiss the father’s application.

I certify that the preceding (sixty-four) 64 paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 19 December 2007