Conti and Conti (No 2)

[2011] FamCA 1079

FAMILY COURT OF AUSTRALIA

CONTI & CONTI (NO 2) [2011] FamCA 1079

FAMILY LAW – CHILD SUPPORT – Father sought order against mother for $200 per week child support – Not framed as application for departure order – No grounds stated under s 117(2) Child Support (Assessment) Act 1989 (Cth) – Insufficient grounds or material properly to consider application “as if” under s 117(2) – Father’s application dismissed – Observation made that before the father files any application for a child support departure order it is envisaged that he should make such application as may be appropriate to the Child Support Agency after judgment is given in the parties’ property proceedings

Child Support (Assessment) Act 1989 (Cth) s 116(1)(a), s 116(1)(aa), s 117(2)
Family Law Act 1975 (Cth) s 66E(1) and (2)

APPLICANT: Ms Conti

RESPONDENT: Mr Conti

FILE NUMBER: BRC 436 of 2009

DATE DELIVERED: 21 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 21 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Carmont

Somerville Laundry Lomax
(pro bono)

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. Paragraph 17 of the father's further amended response filed 11 July 2011 seeking that the mother pay him $200 per week child support is dismissed.

NOTATIONS:

1. The father failed to formulate grounds under s 117(2) of the Child Support (Assessment) Act 1989 (Cth) despite opportunity over the two days of the parties' parenting and property proceedings.

2. Before the father files any application for a child support departure order it is envisaged that he should make such application as may be appropriate to the Child Support Agency after judgment is given in the parties' property proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conti & Conti (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 436 of 2009

Ms Conti

Applicant

And

Mr Conti

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The father applies by way of paragraph 17 of his further amended response filed 11 July 2011, par 17, under the subheading “Child Support”:

   17. That the wife/mother pay $200 per week in total for all three children to the husband/father for child support until such time as the children have finished university or are no longer living with the husband/father, whichever comes first.

2. The father’s further amended response is in 4 discrete parts: property proceedings (pars 1-6); parenting (pars 7-16); child support (par 17) and costs (par 18).

3. Today, I have made final parenting orders by consent, and currently am hearing the parties’ property proceedings, listed for 2 days 20 and 21 October 2011.

4. The father’s application in par 17 is incompetent for several reasons. 

5. First, the jurisdiction of this Court to make an order concerning child support, relevantly, is to make or refuse to make a departure order under s 117 of the Child Support Assessment Act 1989 (Cth). Section 117(1) provides that where an application is made to the Court for an order under Part 7 Division 4 in relation to a child, in the special circumstances of the case, and the Court is satisfied that one or more of the grounds for departure mentioned in subsection (2A) exist or exists, and that it would be just and equitable as regards the child, the carer entitled to child support and the liable parent, and otherwise proper to make an order under that Division, the Court may make an order.

6. Section 117(2) provides that the grounds for departure are as set out in that provision, including that in the special circumstances of the case, the capacity of a party is reduced by reason of certain factors set out; or that in the special circumstances of the case, the costs of maintaining the child or children because of high costs or special needs or other matters as specified apply; or that in the special circumstances of the case, having regard to the income, earning capacity, property and financial resources of the child or a parent, or other matters, a departure order should be made, having regard also to the well known other matters specified in s 117(4) and (5) which need to be considered.

7. It is sufficient to say that at this stage, the father has not filed any application under Part 7 Division 4 of the Child Support Assessment Act, nor specified any grounds under section 117(2) to enable me to deal with any application or purported application by him for a departure order.

8. Secondly, s 66E(1) and (2) of the Family Law Act 1975 (Cth) provide, relevantly:

   SECTION 66E  CHILD MAINTENANCE ORDER NOT TO BE MADE ETC IF APPLICATION FOR ADMINISTRATIVE ASSESSMENT OF CHILD SUPPORT COULD BE MADE

   66E(1)  A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant ) against, or in favour of, a person (the respondent ) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.

   66E(2)  Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

9. In this particular case, yesterday I gave the husband opportunity, overnight, to frame his case under par 17 in accordance with s 117(2), a copy of which I gave him yesterday. He has failed to do so.

10. Further, even if he had done so, the wife by way of procedural fairness would need proper opportunity to respond, including by affidavit evidence directed specifically to any s 117(2) grounds relied on by the father, which could not be afforded to her in the course of the property proceedings today, the matter being listed for 2 days, and today being needed to conclude the parties’ property proceedings, which raise many issues and sub-issues for determination.

11. Mr Carmont, solicitor for the mother, helpfully set out in the mother’s case outline document filed 18 October 2011 a chronology of child support history:

    Chronology of Child Support Applications

DATE	EVENT
20.10.08	Administrative Assessment made
24.04.09	Application by Husband to change assessment
15.06.09	Application refused
03.09.09	Application by Husband for review
23.10.09	Application refused as too complex
10.11.09	Objection lodged by Husband to refusal on 23.10.09
13.01.2010	Objection disallowed
17.03.2011	Amended Response filed by Husband in these proceedings seeks order for child support

1. The mother presently is assessed to pay $44.17 child support per month.

2. I note in the chronology prepared by Mr Carmont, the entry 23 October 2009, with the inclusion “Application refused as too complex”. My understanding is that an employee of the Child Support Agency formed that view principally because the parties’ property proceedings had not yet been determined.

3. The last Child Support Agency event however, it would appear, was 13 January 2010 being disallowance of the husband’s objection to the refusal of his application for a review, that disallowance being now more than 2 years ago.

4. In my view this is too long ago for the purposes of s 66E(1), and the father needs to make fresh application to the Child Support Agency, after judgment is given in the parties’ property proceedings and, if he is aggrieved, and subject to s 116(1)(a) or (aa), then bring such application for a departure order as he may consider appropriate, with formulated grounds under s 117(2) of the Child Support Assessment Act.

5. It may well be that the mother now should be assessed on a fresh assessment for a new child support period to pay more than $44.17 per month. However, that would be a matter for the Child Support Agency to consider assisted by the reasons for judgment in the parties’ property proceedings.

6. In all of the circumstances, I will dismiss par 17.

7. However, as explained, the dismissal does not have effect that, upon any fresh assessment by the Child Support Agency, and subject to s 116(1)(a) or (aa), the father cannot in the future bring a proper application to the Court under s 117(2) of the Child Support Assessment Act.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 21 October 2011.

Associate:     

Date:              4 May 2012