D and D
[2002] FMCAfam 282
•13 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2002] FMCAfam 282 |
| CHILD SUPPORT – Departure by way of child support obligations pursuant to child support agreement – applicant discharged from payment of child support on grounds of financial hardship – administrative assessment. Child Support (Assessment) Act 1989, ss.117, 117(2)(c)(i), 95(2) Wild v Ballard (1997) FLC 92-771 |
| Applicant: | R M D |
| Respondent: | M G D |
| File No: | (P)MLM6049 of 2002 |
| Delivered on: | 13 September 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 August 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr D appeared in person |
| Solicitors for the Applicant: | Mr R D |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | Ms M D |
ORDERS
IT IS ORDERED
(1)That the provisions of the Child Support Agreement entered into between the Applicant and the Respondent on 19 November 1993, be departed from, and the obligations of the Applicant pursuant to the said Agreement be hereby discharged with effect from 30 April 2002.
(2)That until further Order the liable parent, R M D, pay child support for the children of the marriage, P A D, born 2 March 1990 and D A D, born 29 December 1988, in accordance with the provisions for administrative assessment of child support in the Child Support (Assessment) Act 1989.
(3)That the Application filed 27 June 2002 be otherwise dismissed and removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLM6049 of 2002
| R D |
Applicant
And
| M D |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter proceeded before me on an undefended basis and is an Application brought by the Father, pursuant to the provisions of the Child Support (Assessment) Act 1989, for a departure by way of discharge of child support obligations contained in a Child Support Agreement entered into between himself and the Respondent Mother, on 19 November 1993.
The Respondent did not appear in opposition to the Application, and
I am satisfied from documents filed that the Applicant has served the Respondent with the Application, a brief Affidavit and a financial statement, and as a result of an adjournment by granted by me, has also served the Child Support Agency.
As the Father seeks to vary a Child Support Agreement, there is no administrative basis upon which he can do so and he is required to make Application pursuant to the provisions of s.117 of the Child Support (Assessment) Act 1989 ("the Act").
The Agreement
The Agreement dated 19 November 1993, relates to two children of the parties’ marriage, P A D, born 2 March 1990 and D A D, born 29 December 1988. Pursuant to the Agreement, the Father is required to pay $85 per month for the support of each of the children, being a total of $170 per month. The Child Support Agreement has been accepted by the Child Support Agency, and payments applied from 26 October 1993. The Child Support Agreement has been registered in the Federal Magistrates Court, as the Court exercising jurisdiction under the Act.
The Applicant gave oral evidence in support of his Application.
Background
The parties were married on 24 October 1992 and separated in 1993, which was when the Child Support Agreement was entered into. They were divorced in 2001.
At the time the Agreement was entered into, the Father was employed as a welder. He ceased that employment in June 2001, and save for two brief periods of a month and a week respectively, he has been unemployed since that time and receiving a Centrelink pension of $185 per week.
Upon the cessation of his employment as a welder, he received a $9000 redundancy package. He utilised those funds to live and to continue to pay child support until the end of April 2002, when he had exhausted his funds. Since April, he has been unable to meet the payments.
The Law
The Act includes provisions that provide a scheme for the implementation of consent arrangements. Part VI, Division 3, contains the provisions that relate to applications to the Child Support Registrar for acceptance of a Child Support Agreement executed in accordance with the terms of the Act. Once accepted, the liability to pay child support arises where child support was not already payable pursuant to an administrative assessment. Provisions contained in the Child Support Agreement for periodic payments have effect, for the purposes of Part V, as if they were an Order made by consent by a Court under Division 4 of Part VII [s.95(2)].
An Application to vary a Child Support Agreement must be determined in accordance with the provisions of s.117 of the Act. Under that Wild v Ballard (1997) FLC 92-771 at 84 and line 40.
Section 117 of the Act provides the circumstances in which a departure from administrative assessment (or in this case from the provisions of the Child Support Agreement) must be considered. The three step process described in Gyselman v Gyselman (1992) FLC 92-279, requires the Court to consider:
a)Whether, in special circumstances, the case at ground has been made out;
b)Whether it is just and equitable to make the Order; and
c)Whether it is otherwise proper.
In this case, the Applicant relies upon s.117(2)(c)(i):
"That in the special circumstances 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 child:
(i)Because of the income earning capacity, property and financial resources of the parent."
Has a ground been established?
I am satisfied in that case, from the evidence, that the Father is unemployed and despite his efforts, has been unable to obtain employment. He is in receipt of a Centrelink pension of $185 per week, which is considerably less than that which he was receiving at the time when the Agreement was entered into. At that time he was in employment. I am satisfied therefore that continued application of the provisions of the Agreement would result in an inequitable level of support to be provided.
Is it just and equitable?
I have no evidence in relation to the proper needs of the children or the financial position of the Respondent, as there was no opposition to this Application. I could only assume there was no opposition because the Mother accepts that the Father is genuinely unemployed. It is clear that the children have needs which ought to be met by their parents. It is clear that if I depart from the provisions of the Agreement, less support will be paid for the children than was the case, and no doubt the burden will fall upon the Mother.
Nevertheless, the Father is, as I have found genuinely unemployed, and does not have the capacity to meet the payments previously agreed. If I apply the provisions of the Act to the child support payable, then there will be a modest amount payable from his pension. Whilst this would, on its face, not appear to be just and equitable towards the carer and the children, I must also have regard to the position of the liable parent, and in this case I am satisfied that, having regard to his income and his commitments necessary to maintain himself, he does not have the capacity to pay child support at the existing level. I am satisfied he has virtually no other assets, and has done his best from his redundancy payment to meet his obligations for as long as he could.
Is it otherwise proper to make the order?
Similar considerations apply to those which I have considered under the heading, "Is it Just and Equitable?". Regrettably, it may now be that the major responsibility for support of the children falls to the community by way of pension. As I do not know the Mother's circumstances, I am unable to make a finding about this, but having regard to the means of the Father to pay, I am satisfied in the circumstances of this case, it is otherwise proper to make the order sought.
Accordingly, I propose to make orders which will discharge the obligation of the Father pursuant to the Agreement, and to put him in the position where he will be subject to an administrative assessment of child support.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 13 September 2002
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