G and W-J - [2001] FMCAfam 207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & W-J [2001] FMCAfam 207

CHILD SUPPORT – Application for departure from assessment – Child Support (Assessment)Act 1989 (Cth) ss 117(1), (2).

Mee v Ferguson (1986) FLC 91-716
Gyselman v Gyselman (1992) FLC 92-289

Applicant:

J W G

Respondent:

C J W-J

File No:

ZB 3812 of 2001

Delivered on:

12 June 2001

Delivered at:

Brisbane

Hearing Date:

12 June 2001

Judgment of:

Rimmer FM

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

That the application in Form 63 filed by the FATHER on 27 February 2001 be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

ZB 3812 of 2001

J W G

Applicant

And

C J W-J

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought by the applicant father, J W G, seeking an order for a departure from child support assessments for the following periods
·16 August 1994 to 30 June 1995,
·1 July 1995 to 30 June 1996,
·1 July 1996 to 30 January 1997,
·31 January 1997 to 30 June 1997,
·1 July 1997 to 30 June 1998,
·1 July 1998 to 30 June 1999,
·1 July 1999 to 30 September 2000,
·1 October 2000 to 31 December 2001.
In effect, he is seeking that the assessments for the entire period since the parties separated, with respect to the child support of the child of the parties' relationship, J S W-J born 25 march 1993, be departed from such that all arrears be discharged and that future assessment be nil.
Under all the child support assessments there has been approximately $30 paid with respect to child support for J. In addition, there may be at this present time a process with the child support agency where they are deducting payments from a garnishee of Mr G's salary, but the amount of that was not known to the parties, and not part of the evidence before the Court.
The respondent filed a notice that she defended the application. She has sought that the application be dismissed.

The background

These parties formed a de facto relationship, commencing co-habitation on 23 January 1993. The child J, was born 25 March 1993. They separated originally in December 1993. They then continued a reasonably close relationship until December 1994, when Ms W-J filed the application for an assessment under the Child Support Assessment Act 1989.
Thereafter, the child support assessments have issued for the relevant years, and those assessments provided for the payment of child support for various different amounts. They cover the child support for the following periods:
a)16 August 1994 to 30 June 1995 at a monthly amount of $41.33 or an annual amount of $496, based on the child support income of Mr G of $10,974;
b)1 July 1995 to 30 June 1996, a monthly amount of $97.25, or an annual rate of $1167, based on child support income of Mr G of $14,844;
c)1 July 1996 to 30 January 1997, a monthly amount of nil, an annual amount of nil, based on the fact that Mr G's child support income was below the exempted income amount;
d)31 January 1997 to 30 June 1997, again a monthly amount of nil, with an annual rate of nil, given that Mr G's child support income amount was less than the exempted income amount;
e)1 July 1997 to 30 June 1998, an amount of $509 annually, or $42.42 per month;
f)1 July 1999 to 30 September 2000, an annual rate of $260, being the minimum rate applicable;
g)1 October 2000 to 31 December 2001, an annual rate of $813, or a monthly amount of $67.35, based on the child support income amount of Mr G of $15,000.
There has been a review of the child support assessment for one of those periods. That review was partially successful, and Mr G was not required to lodge an objection at that time, as the objection process was not part of the procedure under the Child Support Assessment Act.
On the basis of that review, and the departure stemming in respect of that period, both parties agree that because the facts and circumstances in relation to all of these matters require the giving of similar evidence, the parties wish the Court to deal with all of the child support assessment periods even though the appropriate procedure of reviews and objections have not been undertaken by Mr G for each and every child support assessment he now seeks to depart from.

The Law

Section 117 of the Child Support Assessment Act 1989 is the relevant section. This sets out a three-stage process for determining departures for child support assessments. Section 117(1) requires the Court to be satisfied that in the special circumstances of the case, one or more of the grounds for departure outlined in section 117(2) exists before the Court can make an order for departure, and that under section 117(1)(b)(ii) it would be just and equitable as regards the child, the carer entitled to the support, and the liable parent, and that it would be otherwise proper to make the particular order.
In the Full Court decision of Gyselman v Gyselman (1992) FLC 92-289, the Court stated that:
“Each of these steps must be addressed as separate issues, namely: firstly, the Court must determine whether one or more grounds of departure in section 117 is established. If so, secondly, whether it is just and inequitable within the meaning of section of 117(4) to make a particular order, and thirdly, whether it is otherwise proper within the meaning of section 117(5) to make a particular order.”
It is clear from the careful way that section 117 has been structured in that legislation that the Court must address each of these separate issues. The first step is the establishment of a ground for departure. Section 117(2) sets out the grounds for departure from an administrative assessment of child support.
As a threshold requirement, each of these grounds requires that there be special circumstances before the Court can make the order. Gyselman's case also defined the meaning of the term, "special circumstances". In that case the Full Court held that:
“ The Court should not interfere with an administrative assessment in the ordinary run of cases, and that the facts of the particular matter must be out of the ordinary.”
The grounds which the Court must give consideration to and the matters raised in the response to them by the respondent are as follows:
a)The duty of the parent to maintain any other child or person.
In this particular matter Mr G does not have a duty at law to maintain any other person. He has no other child for whom he has a duty to pay child support or maintenance. He has not re-married and has no duties to support a new wife.
b)The commitments of the parent necessary to enable the parent to support him or herself or any other child or other person that that person has their duty to maintain.
In this particular matter, the commitments are for Mr G to enable him to support himself, and the only child he has a duty to support is a child subject to the assessment, and that is the child, J.
c)The third ground is the ground upon which Mr G substantially relies is that the costs of maintaining the child are significantly affected, because of the high costs involved in enabling him to have contact with the child.
In this regard, Mr G relies on the fact that he moved to S, partially for personal reasons, given the nature of his relationship with Ms W-J, but in particular he says because he was unable to find steady, regular employment and that he was able to do so in S. While his evidence is not precise, his affidavit in support of the application says that he moved to S about during the time when he was fighting for access, by which I take it to mean fighting for contact to the child, J.

The evidence

These parties were in dispute about contact in relation to J in the Family Court of Australia at Brisbane from a date in early 1996 until final orders were made in December 1997. Therefore, the best evidence that I have is that some time during that period Mr G moved to reside in S as he believed that his employment prospects were better there. Since that time he has he says been required to meet substantial costs to maintain a relationship with J through contact. He quantified in his evidence before the Court those costs in respect of his petrol and tolls in the order of $100.00 to $110.00 per fortnight.
He currently exercises contact to J on alternate weekends, for one half of Easter and September holidays, the period over the Christmas holidays and Father's Day. He is responsible for collection and delivery of the child between S and Brisbane. He says that living in a rural area outside the central city area of Queensland the petrol costs are substantially higher and the costs of petrol have risen fairly dramatically, particularly in the last couple of years. He relies upon that as a special circumstance.
In response, the mother says that it was his choice to move such a distance from his child and therefore he has in effect created these costs, and that she and J should not be called upon to wear the consequences of that decision.
I am satisfied based on the evidence before the Court that in relation to those years, which are after mid-1997, that there is special circumstance established by Mr G in that since time he has had high costs in having contact with his child.
In respect of those periods, where an assessment was made prior to that move to S, he does not establish the threshold test. He was, up until mid-1997 living in Brisbane. He did not have the high costs of contact. He was earning a salary, which was taken into account appropriately in the child support assessment. I find that at that time clearly his assessment was not out of the ordinary, nor were there special circumstances, as was held by the Full Court in Gyselman’s case as necessary to establish the basis upon which the Court should interfere with an administrative assessment.
Therefore, in respect of those assessment periods up to and including 30 June 1997, I am satisfied that the threshold test is not met and there should be no departure from the assessment, given that the first ground and the first threshold in respect of establishing departure from an administrative assessment has not been established by Mr G on the evidence.
As a consequence of that finding I am looking now only at those assessment periods after 1 July 1997.
For those periods of assessment, I find that these facts do constitute sufficient special circumstances within the meaning of section 117(2)(a) of the Child Support Act, I must turn to the second step in the process, as the matter does not end simply with a finding that the threshold test is met in the establishment of one of the grounds to enable the Court to look at and consider, whether there should be a departure from the administrative assessment. The second stage in the process is now to determine whether such an order is just and equitable, and in this regard and exercise Section 117(4) is relevant.
The Court must refer to those matters which are set out in section 117(4) to determine whether or not in the facts established in this particular case it would be and is just and equitable to depart from the child support assessments that have been made. In that regard, I need to take into account the income earning capacity of the parents, the proper needs of the child under section 117(4)(b) and section 117(4), the commitments of each parents as necessary to support themselves, that is, I must deduct from income the compulsory and unavoidable expenses and necessary living expenses, and finally and most importantly in this particular matter, I must balance the hardship caused in both households in either not making the order or making the order.
In this particular matter, the relevant summary of facts and findings in respect of whether or not there is justice and equity in acceding to the application and granting a departure for each of those periods of assessment or not are set out in the following paragraphs.
Mr G is a low-income earner. He has worked in the main until very recently as a labourer in the fruit picking industry. His income: he said in his evidence for the relevant years, that is:
a)In the financial year July 1997 to June 1998, he says that his income was somewhere in the order of $11,000.00 to $13,000.00 per annum,
b)In the financial year July 1998 to June 1999 he says his income was in the order of $14,000.00 per annum,
c)In the financial year July 1999 to June 2000 he says his income was in the order of $14,000.00 per annum,
d)In the financial year July 2000 to June 2001 he says his income will be in the order of $15,000.00 per annum, given that he has had a change of employment, and is now working as a labourer for a different company.
During that period of time he says that he has purchased a new vehicle, a Mazda 929, which was purchased 12 months ago on

30 June 2000. As a consequence he says that he has incurred car expenses of $83.00 per week. He purchased the car under hire purchase through Esanda, and has a fairly substantial balance owing on that loan in the order of $21,000.00. He says, and I accept, that this was necessary because of the amount of travel he does to exercise contact to J and the state his old vehicle was in at that time.
He gives evidence that while J is with him on the weekends he buys clothing for her and takes her on outings, so as to enjoy social experiences with her. He provides for all of her needs while she is on contact with him.
He says that his financial statement, which was filed in the Court, establishes that he does not have a great capacity to meet the child support as ordered. I note in this regard that his income was stated as $420.00 a week, and his total expenses at $435.00 per week.
Since the time that he filed his Form 17 statement he has been advised by Centrelink and has made the necessary application to receive 18 per cent of the family payment under a share care entitlement whereby given that he has J for 18 per cent of the nights of the year he is entitled to 18 per cent of the family payment that was previously paid to the mother. That amount received by him is not disclosed in his Form 17, but the wife gave evidence that she has had her family payment reduced and that she believed it would be in the order of $22.00 to $23.00 per fortnight that he would receive from that benefit that she and J previously received.
Therefore his income is increased by that amount together with the slight increase in salary he says he now receives given he has changed his employment. I have found this to be in the order of $440.00 per week.
His expenses are set out in his financial statement. He pays taxation, which because of an increased income will also have increased slightly. Other expenses including food, household supplies, gardening, lawn mowing, repair of furniture and appliances and replacement to those items. He has set out his expenses in relation to health care, contribution to rates of the property (which I assume is owned by his de facto partner), his contribution to house maintenance and repairs, electricity, heating and fuel, telephone, payments with respect to accident disability, child care and babysitting, pocket money, sport and activities, entertaining and outings, his hire purchase payments for the new car, clothing which he purchases for himself and for J, and other expenses related to his motor vehicle, his own personal entertainment and personal needs.
In this regard I have noted that he claims amounts which, if one adopts the strict interpretation under decided authorities of the Full Court, such as Mee v Ferguson (1986) FLC 91-716, should not be seen by the Court as fixed expenses but rather discretionary expenses which clearly should not be allowable by the Court as an expense over and above a duty to properly provide for the support of a dependent child.
The items which fall into that category are the following: item 69 claimed in his financial statement of entertainment for himself of $20.00 a week, books, papers and periodicals of $2.00 a week, gifts of $15.00 a week, making a total of $37.00 per week.
Clearly, while these are not by any means extraordinary expenses for somebody to spend. However when the Court is looking at balancing the needs of a child to be maintained or supported and the desire of a parent to provide for their own entertainment and items which cannot be categorised by the Court as absolutely necessary for the support of that person, those matters clearly must give way to the needs of the child to be supported. In this regard I am satisfied that Mr G does establish on his income and expenses that he has a capacity to meet the very meagre amount of child support that is currently being required to pay under the assessment or has in the past been required to pay in the assessment made since July 1997.
Finally, I have had regard to balancing the hardship caused in both households in the making of the order or the not making of the order. If I do not make the order, then the hardship will fall on the shoulders of Mr G personally. I am satisfied, given that entertainment, buying of papers and periodicals and gifts are matters which are for the benefit of himself because he has claimed separately those items that he spends in relation to his daughter will in fact be borne by him and not by the child.
If one reflects upon the income, earning capacity and expenses and calls upon the mother's income, there is a much more difficult situation experienced by the mother in supporting this child. The mother's evidence is that she receives social security benefits by way of single parent's pension together with the family payment. She receives that not only in respect of the child of this relationship, J, but for the three children of her previous relationship. Those children are either adolescent or approaching adolescence. I accept that their needs, given the research in the Lee’s research and Lovering research, are much greater than younger children.
She has very limited part-time employment of between four and six hours a week from which she earns a small amount of income in the order of about $40.00 per week. She receives from her former husband some assistance for the support of the three children of her previous marriage in the sum of $15.00 per week plus assistance in relation to their educational needs. This is not a great amount of assistance with respect to the needs of those three children. She, as the parent with whom those children reside, bears the brunt of the duty that she has as a parent to maintain and provide for the proper needs of those three children, in addition to providing for the needs of the child of this relationship.
She has no assets to speak of. When one looks at her financial statement the amounts she claims to support herself and four children in my view are not excessive, given the ages and the needs of those children. In the witness box, the mother agreed that the needs for J could be assessed as a separate item.
If one took into account as the Court clearly is entitled to do, the published research in this case, the Lovering tables, given that the family clearly is a low income family, that for a child of J’s age, they are found to be in the order of $54.00 per week. I take into account that those tables do not include substantial items in relation to provision of expenses for J, such as some of her education expenses, holidays and other necessaries. They provide really a summary of the very basic needs of a child of 8 years of age, as J is presently.
Even if the Court assesses that J's needs are in the order of $54.00 per week (and I accept that are likely to be greater than that), the amount assessed by way of child support currently is in the order of approximately $15.00 per week. That is not even one third almost of J's weekly expenses.

It is important for the Court to assess that evidence because the final exercise which I must look at is to balance the hardship in both households.
I am satisfied that there is hardship which exists for J, because her mother does not receive child support and has not received child support with respect to her needs from her father (except as garnisheed by Child Support Agency) since her parents separated in 1993. This is almost the whole of J’s life. I am satisfied that in fact the payment of child support by Mr G is a very personal issue. His evidence is clear. He holds great resentment against Ms W-J and she holds great resentment against him, about matters in the past, particularly in relation to the issue of provision of clothing for J on contact.
It is clear that because of these issues Mr G feels that he should not have to pay child support. He says this is because he has to pick up some of the needs of J when she is with him. That is true. There is no doubt that any parent who has contact to a child has to meet some of the needs of the child during the period of time when that child is with that parent. However that does not mean simply that a parent is free from the responsibilities of meeting the appropriate child support assessment for needs of a child when the child is with the resident parent. It is only where those costs are high and extraordinary that the Court should take them into account.
I have taken into account the fact that the costs of petrol and the loan that Mr G for his new vehicle have added considerably to his weekly expenses. However, even when the Court looks at his income as I have found it to be and makes the appropriate deductions from it those matters I have found cannot be allowed for the weekly needs for Mr G to support himself. Doing so, I am satisfied that even and notwithstanding those high costs of contact, there is not sufficient in my view to find that the Court can determine that the facts of this particular matter constitute a departure from child support which would bring about a result that was just and equitable under Section 117(4).
In conclusion, I do not propose to then move to the final step as to whether it would be otherwise proper to make the orders sought, as in my view the second step has not been overcome. Wherever it may be necessary, it is clear from the findings I have already made, that I am satisfied that it is otherwise proper that Mr G continue to meet child support as assessed by the Child Support Agency at the level of assessments made since July 1997. The costs of contact were already considered in the child support review and there was a reduction for that particular cost to him in the child support that he was required to pay.
This particular exercise, of course, requires the Court to have regard to the philosophy of the Assessment Act. That is, parents have a primary duty to maintain their children. That duty is the highest duty with respect to the meeting of a dependent child's needs and is of a higher level than the requirement that the parent has to meet expenses as I have already set out such as entertainment, gifts and the buying of books and periodicals.

Conclusion

In conclusion, with respect to all of those assessment periods to the present date from 31 July 1997, I am not satisfied that the Court should make an order to depart from the assessment of child support, nor to reduce or to waive any of the arrears in relation to it.
To do so would mean that this child receives no child support from her father except a token weekly amount and clearly that is totally contrary to the philosophy of the Child Support Act that both parents bear, within their financial capacity to do so, an equal responsibility for the support of any dependent child that they have.
Therefore the father’s application for departure is dismissed.
I will also direct that my reasons for judgment be taken out and sent to the parties.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Rimmer FM

Associate:

Date: 15 October 2001