D and W
[2000] FMCAfam 76
•30 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & W | [2000] FMCA fam 76 |
| CHILD SUPPORT – Maintenance agreement – Application for departure from assessment |
| Applicant: | R L W |
| Respondent: | B M D |
| File No: | ZM4660 of 2000 |
| Delivered on: | 30 November 2000 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 November 2000 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr McLeod |
| Solicitors for the Applicant: | Palmer Stevens & Rennick Solicitors 8 Jennings Street, Kyneton |
| Counsel for the Respondent: | Mr Cantwell |
| Solicitors for the Respondent: | Hogg & Reid Solicitors Level 7, 555 Lonsdale Street, Melbourne |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 4660 of 2000
| R L W |
Applicant
And
| B M D |
Respondent
REASONS FOR JUDGMENT
Applications
The Applications before the Court were set out by the Applicant in an Application for Maintenance (Form 12) sworn 13 December 1999 in which she sought:
(1)That Orders made by the Family Court of Australia at Adelaide on 7 February 1996 be varied by varying the amount of maintenance payable by the husband for C B D born 9 January 1989 from the sum of $60.00 per week to the sum of $100.00 per week.
(2)That in respect of arrears of maintenance accrued since the Orders made on 7 February 1996 the husband pay to the wife the further sum of $100.00 in satisfaction of such arrears.
(3)That the said payments be payable to the Child Support Agency.
The Respondent had filed a Response on 14 March 2000 in which he sought the following Orders:
(1)That the wife’s Application be dismissed.
(2)That all arrears of child support be discharged and remitted in full.
(3)That all previous Orders relating to child maintenance be discharged.
(4)That the husband pay maintenance in respect of the child C B D in the sum of $60.00 per week.
(5)That the order for maintenance be suspended during the periods in which the husband is not in full-time employment or is in receipt of Centrelink benefits.
(6)The husband inform the Child Support Agency of his recommencement of employment.
Background
The wife’s case commenced by the wife’s Counsel indicating that she relied upon documents from the Child Support Agency (Exhibit H1) which set out a chronology of proceedings from 26 June 1990 to
31 November 2000 and also included a Transaction Statement in relation to child support payments and credits for the period 7 July 1992 to 3 November 2000.
Pursuant to that document the wife’s Counsel indicated that the total arrears as calculated by the Child Support Agency were $8,941.38. Some of those arrears are due to the second wife of the husband Mrs S D, because the Child Support Agency is collecting payments from the husband for two children, one of whom is the subject of this Application and the child of the parties, C, and the other child, being a child of Mr D and Mrs S D.
Accordingly, according to the Child Support chronology, when the figure of $5,115.89 owed to S D, and the penalties of $730.34 are deducted, there remains an amount of $3,095.15 owed to the wife. This amount, according to the wife’s Counsel in opening, was the amount of arrears that was due to the wife and he relied upon the Child Support chronology and Statements.
During the course of her cross-examination it was clear that the wife was seeking considerably more than the sum indicated by her Counsel and said that there was a further amount owing from 1990 to 1992 in the sum of $4,480.00 and that she was also seeking arrears in that sum.
An examination of the previous Orders however indicated that the wife’s position was not tenable.
The history of the Orders made in relation to child maintenance is as follows:
b)On 22 June 1990 in the Family Court of Australia at Adelaide the husband was ordered to pay $40.00 per week by way of support for C direct to the wife. Apparently in July 1992 the wife made application to the Child Support Agency for collection of payments, hence the commencement date of their Transaction Statements being July 1992;
c)The husband says that on 13 August 1992 C lived with him although there is some disagreement about this;
d)On 13 October 1993 an Order was made by the Family Court at Adelaide. Order no. 2 provided “that paragraph 4 of the Order of this Honourable Court made 22 June 1990 be dismissed and any arrears be discharged”. That order was made by consent, the husband being represented and the wife appearing in person. The other Orders made on that day are not germane to this dispute. Thus, it became clear that at least as at 13 October 1993 all previous arrears had been discharged;
e)The reason that the Order was discharged was as a result of C having gone to live with the husband in August 1992;
f)In mid 1995 C returned to live with the wife;
g)On 7 August 1995 an Order was made at the Family Court of Australia at Adelaide which provided inter alia that the husband pay $50.00 per week child maintenance;
h)On 7 February 1996 an Order was made at the Family Court of Australia at Adelaide by consent which discharged the previous Order made on 7 August 1995 “save and except for arrears of maintenance accrued during the period the husband was in employment”;
i)
Paragraph 2 of that Order went on to provide that the husband was to pay to the wife maintenance for C in the sum of $60.00 per week the first of such payments to be made on Monday
12 February 1996;
j)Paragraph 3 of the Order provided that the maintenance was to be varied annually in accordance with variations in the consumer price index for all groups in the City of Adelaide.
It is thus clear that:
a)
All arrears of previous Orders were discharged as at 13 October 1993 and as C was then living with the husband there was no maintenance order in favour of the wife from that date until
7 August 1995;
b)Arrears could only therefore have arisen from 7 August 1995 and, as a result of the Orders made on 7 February 1996, any arrears were discharged save for arrears of maintenance accrued during the periods when the husband was in employment.
Thus, the issues in relation to the arrears could only involve the issues:
a)
For what periods was the husband in employment between
7 August 1995 and 7 February 1996 and, in those periods did any and if so what arrears acrue?
b)What arrears have accrued since 7 February 1996 and did any arrears accrue during that period whilst the husband was unemployed which would entitle the husband to a variation and discharge for those periods?
The parties were married on 25 April 1987, and separated in 1998. There is one child of the marriage C B D born on 9 January 1989. C is 11 years old.
The husband and wife’s case
The Wife relied upon her Application for Maintenance (Form 12) filed on 31 December 1999 and an Affidavit filed on 3 March 2000. The Husband relied upon a Response (Form 12B) filed on 14 March 2000, an Affidavit filed on 27 November 2000 and an Affidavit filed on 14 March 2000.
Each party gave oral evidence and was cross examined.
Both parties relied upon their chronology from the Child Support Agency (Exhibit “H1”) as to the quantum of arrears.
The Wife’s case as set out in her Application was that the previous Order for Child Maintenance should be varied so that the Husband should pay $100.00 per week by way of maintenance together with a further sum of $100.00 in satisfaction of arrears.
The Wife’s case was that the arrears were $3,095.15, those arrears having arisen since the Orders made on 7 August 1995 and that there were arrears from earlier Orders to which she should also be entitled.
The Husband’s case was that on 17 January 1997, the Order made on 7 February 1996 was registered with the Child Support Agency. It appears that the Order made in 1995 was never registered. Counsel both indicated that due to a number of complexities, there were difficulties working out precisely what was owing and for what period. It appears to me that there are in fact, three discreet periods:
a)Arrears of maintenance accrued when the Husband was in employment between 7 August 1995 and 7 February 1996. If there were any arrears during this period they were not subject to collection by the Child Support Agency because the Order in February 1995 was never registered and those arrears can be privately collected;
b)The period from 7 February 1996 to the period 17 January 1997 when the Order was registered with the Child Support Agency. These arrears, if any, can be privately collected; and
c)Any arrears accruing from 17 January 1997 to date. These arrears would constitute a debt due to the Commonwealth because the Order has at all relevant times been registered with the Child Support Agency.
The husband’s evidence
The Husband’s case in relation to the various Orders was as follows:
a)In relation to the period between 7 August 1995 and 7 February 1996, the Husband’s case was that he paid the sum of $50.00 per week as provided by the Orders, and there was a period of unemployment from 22 November 1995 to 3 January 1996;
b)In relation to the period between 7 February 1996 to date, the Husband’s position was as follows:
i)He was unemployed from 8 December 1996 to 4 March 1997;
ii)He was unemployed from 22 March 1997 to 15 April 1997;
iii)That C was living with the Husband and his mother between 22 January 1998 and 2 April 1999, a period when the Wife was living in Newcastle, and C was in Adelaide; and
iv)A period from 13 June 1999 to 4 September 1999 when the Husband was unemployed.
The periods of his unemployment were set out by the Husband in his Affidavit filed 22 November 2000. The Husband annexed some material in support of his contention that he was unemployed for the periods he had mentioned, and the various documents which are set out in annexure B and D2 to his Affidavit referred to, relate to the periods of unemployment contended by the Husband in the following way:
a)The period 22 November 1995 to 3 January 1996 – The Husband annexed a document “Payment Information” which he had apparently submitted to the Department of Social Security indicating that he was in receipt of a job search allowance between 22 November 1995 and 2 January 1996;
b)The period 8 December 1996 to 4 March 1997 – The Husband annexed a letter from the Department of Social Security dated 11 March 1997 which confirmed that his Newstart allowance had been cancelled from 5 March 1997 because he had advised that he had returned to work. Whilst the document did not indicate the date on which the allowance commenced, it provided some corroboration of the Husband’s evidence;
c)Unemployment period 23 March 1997 to 15 April 1997 – There was no documentary evidence to support that the Husband was unemployed during this period;
d)Unemployment period 13 January 1999 to 4 September 1999 – The Husband annexed documents from Centrelink indicating that a Newstart allowance was being paid to the Husband in August and required a waiting period which commenced in July 1999. The documents do not indicate precisely when the period of unemployment started or precluded but provide some corroboration of the Husband’s evidence;
e)Period when C was living with the Husband
– The Husband’s case was that C had left his Wife’s care on
22 January 1999 to live with his Father and Grandmother in Adelaide and the Wife moved to Newcastle with her ex husband. As corroboration the Husband relied upon a chronology from the Child Support Agency ( Exhibit H1) and in particular the following entries:
i)28 January 1999 “Payer advised child in his care as of 22/01/99, and was sent a Change off Maintenance Detail form to complete”;
ii)3 March 1999 “Payer lodged “Change of Maintenance Details” form to advise that the chid has been in his care from 18 January 1999”;
iii)22 March 1999 “Sent “Change of Maintenance Details” form to payee requesting confirmation that the child had left her care and gone to payer’s care as of 18 January 1999”;
iv)7 April 1999 “Payer phoned Child Support Agency. Payer was advised that attempts to contact the payee had been unsuccessful. Payer’s mother agreed to pass on message to payee. Payer agreed and understood that if the payee didn’t return a signed form that he would need to go back to court. Payer said he could not afford legal fees but understood.”
v)13 April 1999 “Payee contact agency and stated that child was in payer’s care temporarily while she was on holidays.”
vi)21 April 1999 “Payee called the Child Support Agency and stated that payer had child for holidays only and that child had stayed with Grandmother on alternate nights during time.”
vii)21 April 1999 “Letter sent to payer advising that our records would not be changed as payee had not signed “Change of Maintenance Details” form”.
Wife’s evidence
In relation to the periods of unemployment the Wife was cross examined about these matters and was not prepared to admit the Husband’s periods of unemployment. Her evidence was that she did not know whether he was unemployed or not but he had not provided to her a Notice of Unemployment as he was required to do. The Husband’s obligation arose from Paragraph (6) of the Orders made on 7 February 1996 which required him “to advise the Wife in writing within seven days of any change in employment “.
The Husband had a positive obligation to advise the Wife of periods of unemployment and there was no evidence to suggest that he had ever done so. It was incumbent upon him to establish his periods of unemployment. However, he was not challenged in relation to the evidence regarding unemployment, other than in the sense that the Wife effectively put him to his proof. In my view, the Husband had an onus upon him to establish his periods of unemployment, and where there was no corroboration, I am not prepared to find that he has discharged that onus. The Court is satisfied that the onus has been satisfied and the Husband has established periods of unemployment during the following times:
a)22 November 1995 – 3 January 1996;
b)8 December 1996 – 4 March 1997;
c)13 June 1999 – 4 September 1999.
In relation to the period when C was allegedly living with the Husband the Wife’s evidence on this issue was that C had only gone for a trial period to the Father and that she only moved to Newcastle with her ex husband for a period of a few weeks. In the earlier part of the time when C was living with his Father, she had remained in Adelaide and had paid money to his mother at various times and had paid for various other things for C in cash and as a result she has no direct records.
She admitted that she did not pay anything when she got to Newcastle because it wasn’t long before she returned. She denied that she was asked to sign any documents saying that the Husband and his mother had C living with them. The responses of the Wife to the Child Support Agency when requested to confirm that C is living with his Father were quite different. To the Agency she responded that C had been with the Husband for holidays only and that the child had stayed with his Grandmother on alternate nights during that time. This was clearly at odds with the evidence that she gave about the trial term with his Father and Grandmother and for part of which period she actually went to live interstate. Given her evidence and the responses she made to the Child Support Agency which are completely incompatible, I prefer on this issue, the evidence of the Husband, which is consistent with and corroborated by the information he gave to the Child Support Agency during this period. Furthermore, even if the Wife did make payments to the Husband while she was in Adelaide as alleged, the Husband and or his mother were assisting in the support of C and there is no reason why he should have had to make payments to the Wife during that period.
The orders need to be framed in a way which takes account of the periods when liability was registered with the Child Support Agency, and the periods when it was not. The Child Support Agency will recalculate the husband’s arrears taking into account the periods in which the order has been suspended. The husband will still have a liability for arrears to the wife, although it will be reduced.
Application for variation of maintenance
The Wife lives at 104 B Street, K with C. She is not in employment although she recently received a 1977 BMW motor vehicle worth between $2,700.00 and $3,000.00 from her friend P E for assisting him with work done on a bookshop that he purchased and from where he subsequently opened a business. She proposes to continue to live in K and her income consists of a pension and family allowance. Her assets are modest and include furniture, household and personal effects. She has a liability of $5,164.00 and her gross assets have a value of $7,500.00.
She estimates that the weekly expenses for C are $168.00 per week and her expenses were not seriously challenged. Accordingly, I find that the weekly expenses and the amount required for C’s support is $168.00 per week.
Wife’s financial position
The Wife’s income including the child disability allowance is $332.00 per week. Her expenses are set out at a total of $308.00 per week. Her rent which at the time of swearing her document was $155.00 per week is now $116.35 per fortnight, but otherwise her expenses are extremely modest and she was not seriously challenged on them.
Husband’s financial position
In June 2000, the Husband commenced work on a contract basis for S as a casual driver being paid only for the days he works. The contract provides that he earns $250.00 per day, but he has not been in continuous employment since that time. He works on the M gas fields in South Australia, transporting cement and chemicals to the oil rigs. His daily rate includes travelling and he is paid on a monthly basis. His latest payment slips dated 18 November 2000 and
18 October 2000 (Exhibit “H2”) indicate his gross payment and deductions including superannuation and tax and child support. The payslip dated 18 November 2000 indicates the following:
a)His year to date gross pay ...................... $16,087.50
b)Less year to date tax.................................. $4, 069.00
c)Balance....................................................... $12,738.50
d)Deduction 3% super......................................... $39.60
e)Balance..................................................... $12,698.90
His superannuation deductions for the year to date are $1,320.00 of which his employer pays 8% and he pays 3%. The amount earned by the Husband during the period 1 July 2000 to 18 November 2000 after deduction of tax and superannuation is $12,698.90. This period includes some periods were no work was available to the Husband, but given the casual nature of the Husband’s employment, those periods would need in fairness, to be factored in so that the Husbands average income for the relevant period should be the income considered for maintenance purposes.
In the pay period 1 July 2000 to 18 November 2000 there are 141 days. That means that the Husband was earning $90.06 per day, which averaged out over the full year is $32,871.90. This is a rough guide only to the Husband’s income as obviously in the weeks in which the Husband is working, he earns considerably more than this sum, but it does appear that there will be periods in which there will be no work available to him. The only indicator of those periods is what has happened in the current year.
The Husband has remarried but is separated from his second Wife. He denied that he shared a financial relationship with her. He is liable for child support for his child of that relationship. The Husband was not seriously challenged about any of his expenses other than a suggestion that he should let out part of the property in which he is living. Considering the matters raised in his Form 12B, the Husband has necessary expenditure of approximately $482.00 per week, excluding income tax, Foxtel, emergency service levy, Child Support Agency and Legal Aid.
The Husband’s income will certainly at times be considerably higher than the average sum I have estimated.
It appears that at the present time (see Exhibit “H1”) that he is required by the Child Support Agency to make payments of $428.00 per month for his other child. There is no reason why one child should receive more than the other and certainly no evidence that one is more or less expensive to maintain than the other.
The Wife does not have the capacity to meet any commitment to the support of C beyond that which she is presently making, and in the present circumstances it would be reasonable that the Husband should pay $100.00 per week for C’s maintenance. It is within his capacity to make that payment taking into account his other liabilities including maintenance to his other child, which I note is now being paid in a similar amount. The Husband will not be bearing C’s total necessary support and it is a reasonable proportion in all the circumstances.
It is difficult to know precisely the basis upon which the Child Support Agency calculated maintenance in respect to the other Child. If they have done so on the basis that $250 per day is being earned by the Husband and he continues to have periods out of work as he has had so far, then the payment will be reduced when the Husband files a tax return and he will be entitled to a refund. Conversely if his periods of work increase then he is better off than averaging out of his income produces.
Arrears
The arrears that have accrued during the period when the Order was registered with the Child Support Agency are a debt due to the Commonwealth. I do not propose to make any Order in relation to the payment of arrears which can be dealt with by the Child Support Agency under the Child Support (Registration and Collection) Act 1988 and that calculation will depend upon the Husband’s disposable income for Child Support purposes from time to time.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate:
Date:
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