Daley and Daley

[2014] FCCA 836

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALEY & DALEY [2014] FCCA 836

Catchwords:
CHILD SUPPORT – Determination – application for leave – application for departure from administrative assessment – where applicant was out of Australia from 2006 to 2011 – where applicant is in poor health – where applicant now receives a disability support pension – where respondent did not attend Court.  

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss. 98S, 111, 112, 118

Federal Circuit Court Rules 2001, Rules 13.03C, 16.05

Applicant: MR DALEY

Respondent: MS DALEY

File Number: SYC 2318 of 2008

Judgment of: Judge Scarlett

Hearing date: 15 April 2014

Date of Last Submission: 15 April 2014

Delivered at: Sydney

Delivered on: 15 April 2014

REPRESENTATION

Solicitor for the Applicant: Ms O'Donnell

Solicitors for the Applicant: O'Donnell & Associates Family Lawyers

The Respondent: No appearance

ORDERS

1. As provided by section 112 of the Child Support (Assessment) Act 1989, the Applicant is granted leave to depart from assessments of Child Support payable by to the Respondent for the children [X] born [in] 1997 and [Y] born [in] 2000 for the period from 28 March 2007 to 1 October 2012.

2. For the period from 28 March 2007 to 1 October 2012 the annual rate of child support payable by the Applicant to the Respondent for the children [X] born [in] 1997 and [Y] born [in] 2000 is set at $NIL.

IT IS NOTED that publication of this judgment under the pseudonym Daley & Daley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2318 of 2008

MR DALEY

Applicant

And

MS DALEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father of two daughters for leave to depart from assessments of child support for a period of seven years back to 2007 and to set the annual rate of child support payable at nil.

2. The Respondent has not filed a Response or any affidavit, nor has she attended Court.

Background

1. The background facts are taken mainly from the Father’s affidavit affirmed on 19^th February 2014.

2. The Father was born in [country omitted] on [date omitted] 1955. The Mother was born in [country omitted] on [date omitted] 1971.

3. The parties met in [country omitted] in about 1995 or 1996 and were married in Sydney on [date omitted] 1997.

4. There are two children of the marriage. [X] was born [in] 1997 and is now aged 16 years and 5 months. [Y] was born [in] 2000. She is aged 13 years and 10 months. The children live with their mother.

5. The Father travelled to [country omitted] in January 2006 to care for his mother, who was very ill. The Respondent Mother stayed in Australia. The Father remained in [country omitted] to look after his mother.

6. The Mother made an Application for Divorce in 2008, whilst the Father was still living in [country omitted]. A Divorce Order was made on 2^nd September 2008 and became final a month later.

7. The Father returned to Australia in November 2011.

8. During the time the Father was living in [country omitted] the Mother obtained assessments of Child Support.

9. The Father is now living in a boarding house. He has been receiving the Disability Support Pension since 10^th September 2012.

Orders Sought

1. The Father seeks the following orders:

   1. That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave is granted to depart from assessments of child support payable by the Applicant Mr Daley to the respondent Ms Daley for the children [X] born [in] 1997 and [Y] born [in] 2000 for the period from 28 March 2007 to 1 October 2012.

   2. That for the period 28 March 2007 to 1 October 2012 the annual rate of child support payable by the Applicant Mr Daley to Ms Daley for the children [X] born [in] 1997 and [Y] born [in] 2000 be set at $0.00 or the child support income of the Applicant Mr Daley be set at $0.00.

Evidence and Submissions

1. The Applicant relied on the following:

   a)his Application filed on 21^st February 2014;

   b)his affidavit affirmed 19^th February 2014;

   c)his Financial Statement filed 21^st February 2014; and

   d)the affidavit of service of Ms C sworn 28^th February 2014.

2. There was no appearance by or on behalf of the Respondent at the hearing, nor did she file any documents. As I was satisfied that the Respondent had been served well in advance of the hearing date, I decided to proceed with the hearing generally under the provisions of Rule 13.03C.

The relevant law

1. Section 98S of the Child Support (Assessment) Act 1989 (Cth) permits the Child Support Registrar to make various determinations, but the Registrar may only make a determination in respect of a day in a child support period more than 18 months earlier than the day on which the application for determination is made under s.98B if a court has granted leave under s.112 for the determination to be made (s.98S(3B)).

2. If the Court does grant leave under s.112, the Registrar may only make a determination in respect of a day in a child support period if the day is within the period specified by the court, under s.112(6).

3. Subsection 111(1) entitles parties to apply for the amendment of an administrative assessment that is more than 18 months old, being an application for leave for:

   a)the Registrar to make a determination under s.98S; or

   b)the court to make a determination under s.118.

4. Subsection 112(1) empowers a court to grant leave for the Registrar to make a determination under s.98S or the court to make an order under s.118.

5. The Court may grant leave for an order to be made under s.118 if the court is satisfied that it would be in the best interests of the parties to consider whether, at the same time as it hears the application under s.111, an order should be made under s.118 (see s.112(2)). Otherwise, the Court may grant leave for the Registrar to make a determination under s.98S (see s.112(3)).

6. When a Court is considering whether to grant leave under subsection (1) of s.112, subsection (4) provides that it must have regard to:

   a)any responsibility, and reason, for the delay in making an application under s.98B or s.116;

   b)the hardship to the applicant if leave is not granted; and

   c)the hardship to the respondent if leave is granted.

Conclusions

1. The Respondent Mother did not attend Court, even though it is clear from the Affidavit of Service that the documents were served by hand on 27^th February 2014. The Applicant Father attended Court, accompanied by his solicitor, Ms O’Donnell. In the circumstances, I considered it appropriate to proceed with the hearing generally under subrule 13.03C(1). If the Respondent seeks to have the Orders varied or set aside she will need to make an application under Rule 16.05.

2. The Father gave oral evidence in support of his Application. He confirmed that he did not recall having received any documents from the then Child Support Agency about the first Child Support Assessment in August 2005. He was living in [country omitted] at that time. He also confirmed that since 10^th September 2012 he has been in receipt of the Disability support Pension in the sum of $751.70 per fortnight. He also receives Rent Assistance and a Pension Supplement. Thus, he receives a total benefit of $1101.10 per fortnight.

3. It is the Father’s evidence that he is in poor health, with a number of permanent and ongoing physical and psychological health problems. These include cervical spondylosis[1], lower back pain and major depression. He states that his health is unlikely to improve and he does not expect that he will be able to work in future.

   [1] Spondylosis refers to degenerative osteoarthritis in the spinal vertebrae and usually occurs in older people.

4. In my view, the Father has established that he will suffer hardship if leave were not to be granted, because although he is currently being assessed for child support at an appropriate level, he still faces significant arrears of child support which he would not be able to meet in the foreseeable future. There is no evidence from the Mother as to whether she would suffer hardship if leave were granted or not. 

5. The Father has provided a satisfactory reason for the delay in making his application, as he was out of the country between January 2006 and November 2011.

6. I am satisfied that it would be in the best interests of the Father, at least, for an order to be made, rather than referring the matter back to the Registrar.

7. I propose to grant leave to department from the assessments of child support for the period from 28^th March 2007 to 1^st October 2012. I propose to order that the annual rate of child support for the children for the relevant period be set at $NIL.    

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 24 April 2014