DARIAN & DARIAN - [2020] FamCA 362

FAMILY COURT OF AUSTRALIA

DARIAN & DARIAN

[2020] FamCA 362

FAMILY LAW – PROPERTY – Where application for stay of Child Support Assessments pending final hearing – Where consideration of applicable principles – Where appropriate that a stay be refused.

Child Support (Registration & Collection) Act 1988 (Cth) s 111C
Child Support (Assessment) Act 1989 (Cth) s 117

Bagala &Bagala [2009] FMCAfam 953

APPLICANT:

Mr Darian

RESPONDENT:

Ms Darian

FILE NUMBER:

PAC

3421

2017

DATE DELIVERED:

14 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

Maclarens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr O’Reilly

SOLICITOR FOR THE RESPONDENT:

McPhee Kelshaw

Orders

That the husband’s application for an order for stay of his Child Support Assessments for the period 1 July 2019 to 31 December 2020 be refused and the application dismissed.
That, otherwise, the husband’s Application in a Case filed 20 December 2019 as amended be dismissed.
That any application for costs be made by way of written submissions filed and served within 28 days from this date with any submissions in reply to be filed and served within a further 14 days and upon completion of submissions judgment is reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darian & Darian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3421 of 2017

Mr Darian

Applicant

And

Ms Darian

Respondent

REASONS FOR JUDGMENT

On 17 October 2018 the applicant wife commenced proceedings seeking orders for property adjustment as between herself and the respondent husband.
In summary, the wife sought orders that would provide a division of matrimonial property as to 60 per cent to the wife and 40 per cent to the husband. Specific orders sought included:
a)a transfer to the wife by the husband of his interest in the real estate property at B Street, Town C (“the former matrimonial home”) unencumbered;
b)that the husband be declared solely entitled to his interest in the real estate property situate at G Street, Suburb F;
c)that the husband be declared solely entitled to his interest in the real estate property at D Street, Suburb H;
d)that the husband retain to the exclusion of the wife his interest in certain corporate entities;
e)that the wife retain to the exclusion of the husband her business trading under her own name; and
f)that there be a superannuation split in the sum of $83,000 in favour of the wife from the husband’s interest in the J.
For his part, the husband on 31 January 2019 filed a Response to the wife’s Initiating Application. That Response was amended on 17 December 2019. In summary, the husband sought:
a)an order for the sale of the former matrimonial home with the net proceeds of sale being divided as to 52.5 per cent to the wife and 47.5 per cent to the husband;
b)an order that his child support obligation for the period 1 July 2019 until 31 December 2020 and any arrears arising during such period be assessed at nil.
The present interim application arises from the Application in a Case filed by the husband on 20 December 2019. The husband’s Application in a Case was amended on 31 January 2020 and, in summary, he sought the following orders:
a)that the husband and wife each receive the sum of $100,000 being a total of $200,000 to be drawn down against the mortgage secured against the former matrimonial home with the distribution to the husband to be characterised as interim property settlement and the distribution to the wife to be reserved to final hearing; and
b)that the husband’s child support liability for the period 1 October 2019 to 31 December 2020 and any arrears arising from that assessment dated 22 August 2019 be stayed conditional upon the husband meeting certain payments including mortgage payments, private health fund, school fees and various other property outgoings.
The wife on 18 March 2020 in her Response to the husband’s Application in a Case sought orders that, in summary, provided for the capital distributions as sought by the husband together with an additional amount of $2,500 to be redrawn for the purposes of obtaining a single expert valuation in relation to a Mustang motor vehicle. Otherwise, she sought that the husband’s interim application be dismissed.
By consent, on 23 March 2020 orders were made as to capital withdrawals sought by the parties.
The only issue remaining for determination is the question of a stay of the husband’s child support obligation. On present indications in this Registry his primary departure application will not be determined until early 2021 concurrently with the property matter.

Context

The husband is presently aged 58 years and the wife 57 years.
The parties commenced cohabitation in late 1992, married in 1993 and separated in October 2015. The parties were divorced in 2017.
The parties continue to reside on the former matrimonial property but in separate dwellings thereon.
There are four children of the parties’ relationship: Mr K now aged 25, Mr L now aged 22, Mr M now aged 19 and X born in 2003 now aged 16.
On 18 November 2019 an order was made by consent requiring the parties to redraw from the mortgage secured against the matrimonial home the sum of $25,000 to be applied for the purposes of single expert valuations unless otherwise agreed between the parties. The husband complains that the wife has as yet failed to comply with that order.

Child Support

The husband relied upon:
a)his affidavit filed 31 January 2020; and
b)his Financial Statement filed 15 November 2019.
The wife relied on:
a)her affidavit filed 18 March 2020; and
b)her Financial Statement filed 26 March 2020.
On 22 August 2019 the Child Support Agency issued assessments as to the husband’s child support liability for the period 1 July 2019 to 31 December 2020. The husband lodged an objection to the assessments and on 26 November 2019 the Agency determined that the husband’s objection be disallowed and that there be no change to the assessment. As a consequence, the husband’s child support liability for the period 1 July 2019 to 30 September 2019 was in the sum of $1,517 per month and his child support liability for the period 1 October 2019 to 31 December 2020 is in the sum of $1,659 per month.
The current child support arrears are about $20,000 being indicative of the husband simply ignoring his child support obligation.
It is apparent from the Agency objection decision that the rejection of the husband’s objection was based primarily upon the question of nights of care of the subject child as between the husband and wife. The question of the relevant financial circumstances of the parties was not engaged.
Grounds for review of an assessment are set out in s 117 of the Child Support (Assessment) Act 1989 (Cth):
(2)(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)the duty of the parent to maintain any other child or another person; or
(ii)special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or
(iv)high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia)because of special needs of the child; or
(ib)because of high child care costs in relation to the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of 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 child; or
(ia)because of the income, property and financial resources of either parent; or
(ib)because of the earning capacity of either parent; or
(ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
The husband has available to him the opportunity to seek a review of his assessment on more fulsome grounds if available to him or seek a credit as against his assessment for relevant non-agency payments made by him.
As was observed by Riethmuller FM (as he then was) in Bagala & Bagala [2009] FMCAfam 953:
Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been two sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments.
The first was the introduction of the departure process under part 6A of the Act, allowing for administrative departures from child support assessments.
The second change was providing for objection rights following Part 6A decisions, and the third significant change provided for review by the SSAT.
All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship of applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well-developed informal administrative system has been developed.
The husband seeks a stay order pursuant to s 111C of the Child Support (Registration & Collection) Act 1988 (Cth) (“the CSRC Act”) in respect of the operation of the child support assessments payable by him pending final determination of his departure application included in his Amended Initiating Application.
Section 111C(3) of the CSRC Act provides that:
Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceedings.
In his Financial Statement the husband deposes as to gross income of $3,970 per week. His income includes rent received in relation to part of the Town C property that significantly offsets the mortgage payments. Relevantly, he asserts primary liabilities as to tax and mortgage payments of about $1,500 per week. His child support liability is about $400 per week leaving him with, otherwise, disposable income of about $1,900 per week. He has, as referred to above, received a capital sum of $100,000 that could meet his arrears obligation.
The wife’s income consists of a small sum as a sewing teacher in school term, government benefits and her child support entitlement.
In all of the circumstances and concomitant with the objects of the child support legislation, it is appropriate that the administrative procedures follow the statutory pathway and the remedies available.
The grant of a stay or a stay on terms is a matter of discretion. It is appropriate for the above reasons that the stay sought by the husband be refused.

Otherwise

Otherwise, the husband seeks orders that the wife contribute to various payments and outgoings presently paid by him. The wife clearly has no capacity to do so. The husband does. There is no basis for such an order.
It is incumbent of the parties to bring their financial dispute to an early resolution. Their patent inability too so inexplicably sees the parties continuing to reside in the same home although separate and apart.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 May 2020.

Associate:

Date: 14 May 2020