DSG & VLS
[2006] FMCAfam 247
•31 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DSG & VLS | [2006] FMCAfam 247 |
| CHILD SUPPORT – Departure application – earning capacity – where liable parent decides to pursue full time tertiary study – no grounds for departure established – application dismissed. |
| Child Support (Assessment) Act 1989 Income Tax Assessment Act 1936 (Cth) as amended Income Tax Assessment Act 1997 (Cth) Evidence Act1995 (Cth) |
| Gyselman (1992) FLC 92-279 DJM v JLM (1998) FLC 92-816 Weir v Weir (1993) FLC 92-338 Black v Kellner (1992) FLC 92-287 Jenkins v Livesey (1985) 1 All ER 106 Jones v Dunkel (1959) 101 CLR 298 Ghazal v GIO (NSW) (1992) NSWLR 336 Australian Securities Commission v AS Nominees (1995) 133 ALR 1 |
| Applicant: | DSG |
| Respondent: | VLS |
| File Number: | PAM2088 of 2004 |
| Judgment of: | Ryan FM |
| Hearing date: | 23 May 2006 |
| Date of Last Submission: | 23 May 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 31 May 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr A. Givney |
| Solicitors for the Respondent: | Lamrocks |
ORDERS
The child support application filed by DSG on 19 September 2005 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Parramatta |
PAM2088 of 2004
| DSG |
Applicant
And
| VLS |
Respondent
REASONS FOR JUDGMENT
The application
The catalyst for this litigation is an enforcement summons issued by the Child Support Registrar on 2 December 2004 in the Local Court Family Matters. When the Child Support Agency (“CSA”) commenced enforcement action, the applicant was $23,442.85 in arrears and liable for $2,705.31 in late payments. The respondent believes the current arrears are probably in the vicinity of $40,000. After the applicant failed to appear, a warrant issued for his arrest, which officers of the Australian Federal Police executed on 30 July 2005. DSG (“the applicant”) started these proceedings on 19 September 2005 when he filed an application for a departure order from an administrative assessment of child support. Presently, the proceedings initiated by the Child Support Registrar are adjourned awaiting the outcome of these proceedings.
In his application, the applicant challenges all child support assessments issued after and operating from 2 October 2001.
These parties have two children whose financial support these proceedings concern. They are Adam born in 1992 and Tyler born in 1996 (not their real names). Concerning periodic child support, the applicant seeks orders reducing his child support as follows:
·For the period from 20 March 2003 to 30 June 2003 his liability for child support be assessed on the basis of an annual child support income amount of $8,503.44.
·For the period from 1 July 2003 to 30 June 2004 his liability for child support be assessed on the basis of an annual child support income amount of $8,974.99.
·For the period from 1 July 2004 to 30 June 2005 his liability for child support be assessed on the basis of an annual child support income amount of $4,197.60.
·For the period from 1 July 2005 to date his liability for child support be set at $260 per annum.
·For later child support periods and pursuant to s.56 of the Child Support (Assessment) Act 1989 (Cth) the applicant’s liability for child support be assessed on the basis of his taxable income under the Income Tax Assessment Act 1936 (Cth) as amended or the Income Tax Assessment Act 1997 (Cth) as amended and any supplementary amount for the last relevant year of income in relation to the child support period; and
·The obligation to pay child support otherwise be assessed by the Child Support Registrar in accordance with the provisions of the Child Support (Assessment) Act 1989 (Cth) as amended.
The applicant also asks that penalties are remitted and that he is given the opportunity to pay child support arrears at the rate of $10 per week.
During his oral evidence, the applicant explained that the effect of his departure application would be that from 20 March 2003 until he decides to return to paid employment, his child support would be the statutory minimum, namely $260 per annum total. Although reading the applicant’s affidavit it appears his return to employment may be reasonably imminent, during his oral evidence a return to work became far more elusive. Recently the applicant has reduced his number of subjects which immediately adds at least another six months to his course. On his evidence the best case scenario is that he might seek full time work in late 2007. This, however, is far from certain.
VLS (“the respondent”) filed her response on 15 November 2005. The respondent seeks orders for dismissal of the applicant’s departure application and that he pays her costs of the proceedings. Without labouring the point, the respondent points out that even when in full time employment, the applicant failed to pay assessed child support. Essentially the applicant has never been up to date with child support. For whatever reason, she believes he is philosophically opposed to paying child support and sees his decision to pursue full time study as a self indulgent ruse to avoid his child support obligations.
Background facts
The applicant father was born in1968 and is 38 years old.
The respondent mother was born in 1974 and is 32 years old.
The parties commenced cohabitation in April 1991. They married in
December 1992.
Adam, the parties’ eldest son, was born in 1993.
Tyler, the parties’ second child was born in 1996.
The parties separated in September 2001.
On 2 October 2001 the respondent applied to the Child Support Agency (CSA) for the administrative assessment of child support. Ten days later, the CSA issued an assessment that required the applicant to pay $943.50 per month child support. On 23 November 2001 the respondent requested the CSA to collect child support from the applicant. The CSA accepted the respondent’s application to collect child support from the applicant.
By letter dated 15 April 2002 the CSA calculated that for the period
2 October 2001 to 23 November 2001, the applicant was $1,357.89 in arrears.
On 28 May 2002 the Child Support Agency assessed the applicant liable to pay child support for the period 2 October 2001 to
22 November 2001 at $943.50 per month.
On 21 November 2002 the respondent lodged an application with the CSA to change the child support assessment. The respondent alleged that the applicant’s income was greater than disclosed to the CSA.
On 7 December 2002 the CSA issued an assessment requiring the applicant to pay $985.58 per month child support for the period
2 January 2003 to 1 April 2004.
On 7 January 2003 the parties entered consent orders in the Family Court of Australia, which orders finalised residence, contact and property matters.
The applicant met VFG in March 2002.
The parties were divorced in this court on 20 December 2002.
In February 2003 the applicant and VFG married and commenced cohabitation.
On 6 March 2003, following the respondent’s child support application, for the period 2 January 2003 to 1 April 2004, the applicant’s monthly child support increased from $985.58 to $1,052.42 per month.
On 19 March 2003 the applicant’s position as an inventory analyst for a manufacturing company was made redundant. The applicant says he received approximately $9,000 redundancy payment. His employment separation certificate shows he received $11,463.23 nett. The applicant alleges that from mid-March 2003 until 21 July 2003 he actively, yet unsuccessfully, pursued employment in his field of expertise. None of the applicant’s redundancy payment was used to pay child support, neither periodic payments nor arrears.
On 25 June 2003 the CSA issued a further decision which maintained the applicant’s periodic payment at $1,050.42 per month.
In July 2003 the applicant commenced studying for a tertiary preparation certificate at TAFE.
On 15 August 2003 the applicant applied to the CSA to reduce his child support. He relied on two grounds. Namely, legal costs incurred in contact proceedings and paying alleged joint debts.
On 12 September 2003 the applicant lodged an objection to the child support decision dated 25 June 2003. The applicant’s objection was rejected on 14 November 2003. On 21 December 2003 the applicant objected to the decision made 14 November 2003.
In February 2004 the applicant commenced a Diploma of Business (Legal Services) TAFE. The applicant completed the course with distinction in the second semester of 2004. By completing the course with distinction he achieved the necessary entry requirements to enable him to study law at university, even though he had not completed the higher school certificate.
On 19 August 2004 the CSA advised the respondent that the applicant’s arrears amounted to $19,969.37.
On 19 September 2004 the applicant filed an application for a change of assessment with the CSA. On 21 September 2004 the applicant’s child support application was rejected and so too was an earlier objection.
On 27 October 2004 the CSA advised the respondent that the applicant’s child support arrears had risen to $21,949.93.
From 25 November 2004 to 18 February 2005 the applicant sought employment within the legal profession. He applied for positions such as junior secretary, clerks, registration clerks and the like with various legal firms and institutions.
In late 2004 the applicant applied through the University Admissions Centre to study a Bachelor of Laws. In addition, he applied to study an Advanced Diploma of Conveyancing. Although he inquired at the Legal Practitioners Board, the applicant decided against studying law through the Board. The applicant’s UAC application was successful and in autumn 2005 he enrolled in a combined LLB/Bachelor of Social Science (Criminology). The applicant’s application to study an advanced Diploma of Conveyancing was also successful. Thus, at the same time as the applicant embarked on a combined degree, he commenced part time TAFE studies in conveyancing.
On 11 March 2005 the applicant applied to the CSA to change the child support assessment. On 17 May 2005 the CSA assessed the applicant’s liability on the basis of an annual income of $62,000 for the period
2 July 2005 to 1 October 2006. The effect of this decision is that the applicant’s child support is assessed at $1,092.08 per month.
On 30 July 2005 the applicant was arrested in relation to his failure to participate in child support enforcement proceedings commenced
2 December 2004.
In late 2005 VFG and the applicant had their first child. The baby was born prematurely and the baby and VFG were hospitalised for between two and three months.
Relevant law – child support
The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act 1989. Section 3 contains the obligation that parents maintain their children. The objects of the Act are found in s.4. Each of the objects needs to be borne in mind when deciding an application under the Act. Section 4(3) of the Act recognises the desirability of parents reaching agreement for the financial support of their children. Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part VII include:
a)that the children have their proper meeds met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents and
b)that parents share equitably in the support of the children.
The Full Court of the Family Court in Gyselman (1992) FLC 92-279 set out a three step process that courts must follow in determining an application for a departure order under s.117. The first step whether one or more of the threshold grounds in s.117 are established. If so, the next step is whether it is just and equitable within the meaning of s.117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s.117(5) to make a particular order.
An issue in this matter is whether the court might properly base its decision on earning capacity rather than actual income. It is clear from DJM v JLM (1998) FLC 92-816 that a court can take into account earning capacity in situations other than those in which a person has deliberately weakened his or her economic position in an attempt to avoid their responsibility to pay child support. What distinguishes these cases from cases in which the court does focus on the actual and reduced income in calculating the level of child support seems to turn on whether the person acted reasonably in all the circumstances in taking the step that led to the reduced income.[1]
[1] See, for example, discussion in DJM v JLM (supra.).
What is reasonable must be determined not only in light of the particular facts but also in the light of the particular area of law involved. In child support cases an important part of the context for determining what is reasonable is the explicit statement of the Objects of the Act in s.4 in which there is reference to the parents, “capacity to provide financial support”. Thus a different answer to the “what is reasonable” question may be given in spouse maintenance compared to child support proceedings. Partly, this is because child support legislation prioritises the obligations of parents to support their children.
Disclosure
One of the important issues in this case concerns the parties’ obligation to make full and frank disclosure, which means they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said at 79,593, “This court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287 that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs”. Where a party puts into issue their financial circumstances, even if the proceedings concern maintenance or child support, there is a similar obligation to give full and frank disclosure. As the Full Court said in Weir “Irrespective of any obligation created by the Family Law Act 1975 or the Family Law Rules that we have identified, in our opinion the obligation of full or frank disclosure applies because of the duty of the court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant”. Further, in Weir the Full Court said “It seems to us that once it has been established that there has been deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”
Shortly after the applicant commenced these proceedings this court and the Full Court made a series of directions aimed at compelling him to give full disclosure of his relevant financial circumstances, which included production of source documents. On 19 December 2005 the applicant was ordered to file and serve an affidavit of documents by
12 January 2006. In this affidavit he was required to discover:
a)All documents evidencing attempts to secure employment between the date upon which he last had full time employment and the date of the affidavit of documents.
b)Evidence of his liabilities during periods under consideration, including the basis upon which the liabilities have been incurred.
The applicant failed to comply with the court’s directions. Notwithstanding that these directions were made after he filed his trial affidavit on 19 September 2005, the applicant said all relevant employment information was contained therein and thus he has nothing to produce. The applicant says he is unable to produce copies of any of his job applications summarised in annexure L to his affidavit because of computer problems. Annexure L comprises a word file summary of job applications made between 22/3/2003 and 12/7/2003. It appears any further job applications are identified in his affidavit. Thus the applicants failure to comply with (a) is adequately explained.
Concerning the second aspect, the applicant simply decided against complying, basically saying he was too busy. In failing to comply, the applicant deprived the respondent of the opportunity to assess his income by reference to his outgoings. I accept the respondent’s submission that the applicant’s non compliance with (b) is a material failure on his part and is inconsistent with his obligation to give full and frank disclosure of relevant financial information. There are other instances of serious non disclosure to which I will make reference later. The effect of this is that I am satisfied the applicant failed to comply with direction (b) because production of this information would not have assisted his case. See Jones v Dunkel (1959) 101 CLR 298.
Special circumstances of the case - has the applicant shown a ground for departure?
The applicant relies on s.117(2)(c)(i) and s.117(2)(a)(i) to establish a ground for departure. The later provision relates to the recent birth of his child born to VFG. As the operative assessment was made by the CSA, upon the applicant giving the CSA notice of the child’s birth, his assessments will be varied administratively by varying his exempted income amount [s.39(3)]. If the applicant is dissatisfied with the CSA’s response to this information, he may then undertake the staged review process. As the applicant has an appropriate administrative procedure which addresses this scenario, I do not consider it is an appropriate ground for departure.
The applicant claims that his actual income bears no relationship to the basis upon which his child support liability has been calculated. In relation to the years under challenge the applicant says his actual and taxable income is as follows:
·From 1 July 2002 to 18 March 2003 the applicant earned $66,804 gross in wages per annum. When made redundant he was paid $11,463 (nett). As he was continuously employed with the same employer, I infer his actual gross wages for the period 2 October 2001 to 30 June 2002 was in the vicinity of $66,804.
·For the period 20 March 2003 to 30 June 2003 - $4,235.95 from Centrelink benefits.
·For the financial year ended June 2004 - $8,974.39 from Centrelink benefits.
·For the period financial year ended June 2005 - $8,652,38 from Centrelink benefits.
·Presently earns $100 per week.
Attached to the applicant’s affidavits are Centrelink PAYG statements which corroborate the applicant’s Centrelink income.
The applicant’s child support income amount, by reference to which his liability is calculated is summarised below.
·From 2 October 2001 to 1 January 2003 - $53,204.
·For the period 2 January 2003 to 1 April 2004 - $56,118. This was increased by departure in an assessment dated 10 June 2003 to $59,000.
·For the period 2 April 2004 to 1 July 2005 - $62,000.
·By assessment dated 19 May 2005 for the period 2 July 2005 to
1 October 2006 - $62,000. This decision actually assesses the applicant’s child support income in this amount up to 31 December 2009. Thus far, however, an assessment has issued only up to
1 October 2006.Commencing February 1986 the applicant embarked on a career in stock control. Over the ensuing years he progressed through shipping/costing clerk positions, Production and Inventory Controller, Production Planner and Project Supervisor. Between January 2001 and March 2003 the applicant was employed by the manufacturing company as Inventory Analyst. On 19 March 2003 his position was made redundant and he has not worked since. The applicant’s retrenchment pay schedule reveals that at the manufacturing company he earned $66,804 per annum. This comprised $54,204 base salary and $12,600 car allowance.
In the three months following his redundancy the applicant submitted 21 job applications in the supply chain management field. Also attached are copies of his Newstart applications which identify a handful of applications for less skilled positions. When he failed to obtain employment, the applicant decided he would study full time. Thus he embarked on the Tertiary Preparation Certificate and subsequently the combined degree and TAFE diploma to which I have earlier made reference. After six years study the applicant hopes to work as a lawyer. By the middle of 2007 at the earliest he hopes he will have finished his TAFE diploma and commence work as a conveyancer. Whether this work will be full or part time is unclear.
I accept the respondent’s evidence that during cohabitation the applicant was approached by putative employers and that he has enjoyed a successful career in stock control management. Although during his 17 years in this industry the applicant changed employers on a number of occasions, he has basically inexorably climbed up the career ladder in his previously chosen field. Twice he has been made redundant and on one occasion was apparently dismissed unfairly. This resulted in a negotiated unfair dismissal settlement in his favour. The applicant argued his unfair dismissal settlement has harmed his job prospects in the industry, a claim I do not accept. His subsequent employment in a relatively senior position with the manufacturing company shows the 2000 unfair dismissal did not stand his way to securing appropriate employment.
The applicant claims that without an APIS CPI qualification his career in stock control management is over. APIS is the Australian Production and Inventory Society. While working at the manufacturing company the applicant completed two units of the fifteen unit course. Each unit costs $1200, which his employers paid. With his redundancy payment, the applicant had sufficient funds to continue his course for a reasonable period, as well as to pay assessed child support. While I accept these qualifications are likely to enhance the applicant’s employment prospects or promotion opportunities, I do not accept that 17 years successful employment counts for nothing. Before I would accept the applicant’s claim that without an APIS CPI he cannot return to his earlier field of endeavour, I would have needed some corroborative evidence on the point. Three months of unsuccessful job hunting is insufficient to establish the proposition.
After three months the applicant stopped looking for work in the stock control field and decided to study full time. Essentially he says his decision is reasonable and that in the long term the children will benefit from his increased earning capacity. The applicant produces no evidence that as a conveyancer or inexperienced lawyer, he will earn more than was available to him in stock control. During closing submissions he reiterated his view that Australia is a welfare society and that by paying Austudy it encourages tertiary studies. He argues his right to study and says the children can get by with the respondents financial support and his $260 per annum. This argument ignores the Objects of the Child Support Assessment Act previously referred to. The applicant has pursued study, rather than appropriate paid employment, simply because he wants to. He has done so without any regard to his children’s financial needs. With respect to his desire, he is not a free agent, able to ignore his child support obligations.
The applicant could have pursued study while in full time work. While this strategy might have meant his courses took longer to finish, he could have pursued his passion while simultaneously fulfilling his child support obligations. This applies equally to his TAFE and university studies. The applicant says he decided against studying law through the LPB because this program does not offer face to face classes. I do not accept his evidence. One of the features of the LPB program is that is offers evening lectures, thus enabling students to work full time while studying. Although the applicant has sought work while studying, he has expected employers to allow him to attend lectures and study. This severely, and in the context of this case inappropriately, restricts his opportunity for appropriately paid employment. Given the availability of after hours legal studies, I do not accept the applicant has behaved reasonably in deciding to pursue study during standard working hours.
Upon completing his TAFE studies the applicant applied for a series of junior legal positions, none of which he secured. Just how hard he tried is uncertain, but it cannot have surprised the applicant that he was unsuccessful. While justifiably proud of his TAFE diploma, he pursued work in a highly competitive field. With his work history, employers may well have deduced he was unlikely to remain long term and that he was using them to gain entry into the legal profession. One can easily understand employers preferring to interview applicants obviously pursuing long term employment with them. I do not believe the applicant is so naïve that this was lost on him.
The effect of these findings is that I am satisfied the applicant embarked on a course of study which materially restricts his ability to pursue appropriate well paid employment. I am satisfied that if he continued to pursue employment in his field beyond three months, he is likely to have succeeded in securing another position at a comparable level. After all, it took him three months after his dismissal from a previous employer to find his position with the manufacturing company. With respect to the applicant, he needed to pursue work in his field for considerably longer before the court would be satisfied this was no longer a viable option.
Based on his income earned with the manufacturing company I am satisfied the applicant has an earning capacity at least the equivalent of that by which his child support liability is assessed throughout each of the periods under challenge. To the extent the applicant claimed this is unjust I reject his claim.
For reasons known only to him, the applicant failed to provide evidence of his property, expenses and financial resources in the period predating his financial statement. It was only during cross examination that he disclosed he sold two properties during 2004, namely properties in Minto and Bow Bowing. His evidence concerning the sale and disposition of sale proceeds reflects poorly on him. The applicant claimed difficulty recalling in which year he sold the properties, eventually narrowing this down to 2004. I do not believe he was unable to recall the nett sale proceeds, or why he thought it was reasonable to pay out unspecified personal expenses but not apply even one cent towards child support arrears or future child support. I have no doubt that the sale of these properties was at least partly motivated by his desire to avoid paying child support. By disposing of his assets the applicant was undoubtedly aware he made the respondents and CSA’s task of forcing him to comply with his child support obligations even more difficult. The applicant’s ownership of these properties is also likely to have been relevant to his child support liability, as investment properties, of which I infer one at least of these properties comprised, can materially affect taxable income. The applicant offers no explanation for his failure to produce documents relating to these sales or his ATO notice of assessment for the years of ownership with which we are concerned. I infer production of these documents would not have assisted his case.
If there was any need for further evidence concerning the applicant’s disregard of his children’s financial needs, it comes from his claiming a share of back to school allowances. In 2005 the applicant claimed half the allowance and this year one quarter. He explained the children’s school socks were shabby and because he has the children 24% of the time he claimed his entitlement. The applicant was unabashed when he explained that he believes one is entitled to rely on the integrity of decisions made by government officers. Obviously he does not include decisions by CSA officers in this category. The respondents counsel asked the applicant whether he turned his mind to paying the money received on the back to school allowance towards child support. He answered an emphatic no.
The applicant presented his case with a narrow focus and failed to give full and frank disclosure of highly significant transactions as well as failing to comply with disclosure directions. With respect to him. I consider this to be a clear case for assessment of child support obligations by reference to earning capacity. His assessed child support income amount is manifestly appropriate.
The applicant does not challenge the respondent’s child support income amount, or disregarded income amount for the period.
Neither child had an income, earning capacity, property or financial resource that the applicant contends would amount to special circumstances.
Having regard to these findings I am not satisfied that the applicant has established a ground for departure.
Is it just and equitable or otherwise proper to make a departure order?
Because the applicant has not established a ground for departure I am not required to consider s.117(4) or (5). However, for abundant caution, if I were wrong in deciding against special circumstances I would not find on the facts before me that it is just and equitable to order a departure.
No meaningful challenge was made to the respondent’s evidence and I accept her evidence. The respondent graduated from the University of Sydney in 2004 with a Bachelor of Applied Science (Diagnostic Radiography). She works as a radiographer. The respondent secured this position recently in which she earns $812.50 gross weekly income. This is $25 per hour for 37.5 hours. Before taking this position the respondent worked with another company, earning a relatively similar amount. As well as salary the respondent receives $262 Centrelink benefits weekly. By s.117(7)(ii) the court must disregard this income. The respondent lives in rented accommodation and has the few assets identified in her financial statement. At Part N of her financial statement the respondent discloses average weekly expenses totalling $440, of which $295 relate to the children. As the respondent is required to pay the school fees, a concession made so that the applicant would agree to the children attending a private school, I disregard $59 paid to the Grammar school. This reduces her average weekly expenses on the children to $236. I accept it reasonable to apportion rental and other personal expenditure in her financial statement three ways, which means $514 is divided by three. Thus to $236 one adds $171.33 which is $407.33. This sum represents the minimum amount the respondent incurs supporting the children. Added to this are household replacement costs and additional school equipment. She is in the difficult position of having to refuse Adam’s request for guitar lessons as well as being unable to afford even modest holidays with the children. This means she incurs additional vacation care costs. When one has regard to the Lee 1989 tables, one sees these children’s expenses are calculated as being $294 and $327 respectively.
The court is entitled to take delay into account. The applicant ignored all CSA correspondence and waited over two years after his Part 6B objection failed before he commenced these proceedings. The experience of this court is that few people keep precise personal records for so long. To the extent that any criticism may have been made against the respondent for her failure to produce precise figures concerning her income and the children’s expenses, this many years after the assessment, I do not accept that criticism is fairly placed. By his delay the applicant placed himself and the respondent in a difficult position, the consequences for which fall on him.
Even if he had established a ground for departure I would have found against the application pursuant to ss.117(4) and 117(5). On either the respondent’s actual expenses or the Lovering table, the child support assessments do not result in an unjust or inequitable level of child support payable by the applicant. Simply put there is a dearth of evidence which would justify reducing the applicant’s financial support for these children and thereby either increasing the respondent’s contribution or cutting back on the children’s reasonable needs. While I appreciate this decision will cause the applicant hardship, this results from his long and determined strategy to avoid paying adequate child support. It would be bizarre indeed if one could succeed on hardship grounds in such a situation.
For these reasons the applicant’s departure and other child support applications are dismissed.
As the applicant has failed, the court must consider the respondents costs application. I will take oral submissions upon publication of these reasons.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date:
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