Belluomo and Belluomo
[2004] FMCAfam 226
•12 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BELLUOMO & BELLUOMO | [2004] FMCAfam 226 |
| CHILD SUPPORT – Application for departure from child support assessment – where CSA took into account fact that eldest child was earning an income and reduced amount of child support payable by father – where CSA declined to backdate this decision – whether matter should be considered under s.110 or s.117 – whether “special circumstances” exist making departure from CSA assessment appropriate. |
Child Support (Assessment) Act 1989 (Cth), s.117
Savery v Savery (1990) FLC 92-131
In the marriage of Gyselman (1992) 15 FLR 219
Hides v Hatton (1997) FLC 759
| Applicant: | DONALD BELLUOMO |
| Respondent: | CHRISTINA BELLUOMO |
| File No: | PAM3159 of 2002 |
| Delivered on: | 12 May 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 12 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| For the Respondent: | Respondent in person |
ORDERS
Application dismissed.
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM3159 of 2002
| BELLUOMO |
Applicant
And
| BELLUOMO |
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings relate to child support and whether there should be any departure from a child support assessment made on 27 October 2003 by way of a backdating of the reduction in the child support percentage payable by the applicant father to 16 October 2002. The respondent mother opposes such a departure order and seeks that child support payments be in accordance with the assessment and formula prescribed by the Child Support (Assessment) Act 1989.
Application
The applicant father filed an application in Form 64 as an appeal from the decision of the senior review officer on 19 January 2004 supported by an affidavit filed on the same date. The respondent mother filed an affidavit in answer on 18 March 2004.
Background
The parties have two children for whom child support is payable. The eldest child obtained work in a butcher's shop on or about 16 October 2002 or possibly prior thereto. He was earning approximately $140 per week by the time that the child support assessment came to be reviewed by the case officer. The case officer took the view that the effect of this income being paid to the eldest son was that a reduction should be made in the percentage of child support payable by the father to 24 per cent. The child support assessment case officer made that order as and from 24 October 2003 to 17 November 2004 but he declined to give any backdating to the decision to 16 October 2002. It is this failure that has caused the father to bring the proceedings to this Court.
The applicant's current employment and financial position
It does not appear to be in dispute that the applicant father is a bank manager earning approximately $60,000 per annum.
The law
Although the applicant father has brought this case as an appeal he does not claim that the Child Support Agency erred in law in the manner in which it came to its conclusions, rather he seeks what he claims to be consistency in the decision making process and I have interpreted this as an application for departure in respect of which the provisions of s 117 of the Child Support (Assessment) Act apply.
Section 117(1) applies as follows:
"(1)That in the special circumstances of the case one or more of the grounds for departure outlined in s 117(2) exist before a Court can make an order for departure;
(2)That under s 117(1)(b)(ii) it would be just and equitable, as regards the child, the carer entitled to the support and the liable parent;
(3)That it would be otherwise proper to make the particular departure order."
If these three conditions are satisfied then the Court should make the departure order sought.
In Savery v Savery (1990) FLC 92-131 Kay J said that "special circumstances" were "facts peculiarly to the particular case which set it apart from other cases".
In In the marriage of Gyselman (1992) 15 FLR 219 at 225, the Full Court of the Family Court said of the phrase "special circumstances":
"Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases".
The grounds for departure
Section 117(2) of the Act sets out the various grounds for departure. After considering these various bases for departure and whether or not in the special circumstances of the case it is appropriate for a departure order to be made, the Court must then consider s 117(4) of the Act which deals with the circumstances in which it is just and equitable to make the departure order sought. Finally, it is necessary for the Court to consider s 117(5) and determine whether or not it is proper to make the departure order.
In Gyselman (supra) the Full Court of the Family Court said at page 240:
"As we have already indicated, the exercise under s 117 involves three steps. The first, which we have already examined, is whether one or more of the grounds in subsection (2) has been made out. The legislation then requires the Court to consider whether any proposed order is "just and equitable" and "otherwise proper".
It is clear therefore that each of the three steps must be addressed by the Court as separate issues namely:
a)Whether one or more of the grounds of departure in s 117 is established; if so;
b)Whether it is just and equitable within the meaning of s 117(4) to make the particular order;
c)And whether it is otherwise proper within the meaning of s 117(5) to make a particular order.
Further, from a consideration of the case of Hides v Hatton (1997) FLC 759 it is clear that the Court must follow this three step process in respect of each year for which a departure order is sought.
The argument
The father's argument is simple. He says that it was unfair of the case officer not to backdate the percentage from the date upon which the eldest son began work or at least from 16 October 2002. This appears to be the date upon which the mother filed a statement of financial circumstances in relation to certain Family Court proceedings and which I understand from the father today is the date to which he would like the order backdated. He says that in previous involvement with the Child Support Agency it made an upward change in his child support assessment and backdated it and he feels that what is sauce for the goose should be sauce for the gander. The mother says that she believes that the decision of the Child Support Agency was fair in all the circumstances of the case and that on a previous occasion the Child Support Agency did not make a backdating order in respect of certain school fees that were payable by the father and she has accepted that without demur.
The father lodged an objection under Part 6A of the Child Support (Assessment) Act in relation to the decision of the senior case officer which was considered by the Acting Regional Registrar. In the decision of the acting regional registrar the matters brought to the Court by the father were taken into account. The decision states, inter alia:
"The difference between the decision that a senior case officer can make and those performed administratively by CSA is that the actions of CSA are clearly and distinctly legislated. The application of the father's 2000/2001 taxable income had to be backdated as the legislation directs. Setting of a start date of a decision via the change of assessment process is subject to the discretion of the senior case officer, there are no legislative requirements to fulfil in that scenario. The process adopted by the senior case officer is to not start a decision from a date that will place the other parent in an overpayment situation. I am not satisfied that P or L's best interests will be met in backdating the decision and placing the mother in overpay. I understand the father's line of argument but as it has been established that the son is not able to fully support himself I don't consider that he has in fact "over paid" his child support liability as the son needs financial support from both parents."
Although I believe this is a matter that is most properly considered as a request for departure rather than a s 110 appeal, I will consider the matter under s 110 in addition. The provisions of s 110(2) indicate that the grounds of appeal may include (a) that an annual or daily rate of child support specified in the assessment was incorrectly assessed; or (b) that the assessment has incorrectly determined the days in relation to which the child support is payable; or (c) that an annual rate of child support specified in the assessment is no longer correctly assessed because the registrar has failed to give effect to s 74 or any other provision of the Act in relation to the assessment. The closest thing in this case would appear to be s 110(2)(b). It appears to me that an appeal cannot be made on this basis as the calculation of the number of days to which the particular child support was payable was properly done but that there was overlaid upon this the discretionary consideration by the case officer and then the registrar not to enforce the matter back to the earliest possible date. That does not seem to me to be an error of the type in respect of which appeals under s 110 can be brought.
This would then leave the possibility of the departure order the terms of which, and the circumstances in which, it can be made have already been discussed.
I am of the view that in all the circumstances of this case there are no "special circumstances". There does not seem to me to be very much which sets this case aside from the ordinary case where a child support assessment officer and a registrar have exercised their discretion in a particular way. The father argues that the exercise of the discretion is inconsistent but that may well not be the case if, as I suspect, the first backdating was referable to a recalculation of income of the paying parent, as suggested by the registrar in the letter which I have quoted in these reasons. Whilst the Court would interfere with the exercise of discretion by administrative officers where such discretion appears to have miscarried, I am not satisfied that that has occurred.
The father has told me that the mother has recently obtained a new job and has not informed the Child Support Agency. He appears to be under the impression that this cannot affect the assessment of his contribution. In this he may be in error but he must take advice upon that matter himself. The mother has told me that she has indeed changed her job, that this took place approximately seven weeks ago and in fact she is earning approximately $2000 per annum more than she previously was, that she has informed Centrelink and has had her Centrelink payments adjusted. She tells me that she will be informing the Child Support Agency. I record these matters so that it will assist the father in taking further advice upon his ability to seek further relief.
In these circumstances I dismiss the application. Both parties are self-represented and no order will be made as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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