Gilbert and Gilbert
[2017] FCCA 506
•21 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILBERT & GILBERT | [2017] FCCA 506 |
| Catchwords: FAMILY LAW – Child Support – Application by father for a substitution order under section 123 of the Child Support (Assessment) Act 1989 and declarations – application summarily dismissed as without merit and an abuse of the Court’s processes. |
| Legislation: Family Law Act 1975, s.119 Child Support (Assessment) Act 1989, ss.3, 4, 5, 7B, 23, 25, 25A, 98, 98W, 98X, 99, 100, 33, 65D, 66, 66F(1)(b), 66P, 66Q, 67ZC, 72, 111, 112, 113B, 116, 117, 118, 120, 123, 124, 125, 139, 141 and 143 |
| Cases cited: Agar & Hyde v Batistatos & Roads & Traffic Authority of New South Wales [2006] HCA 27 Dey & Victorian Railways [1949] HCA 1 Fancourt & Mercantile Credits Ltd [1983] HCA 25 General Steel Industries Inc v Commissioner of Railways [1964] HCA 69 Lindon & The Commonwealth (No.2) [1996] HCA 14 Pullman & Pullman [2013] FCCA 31 Spencer v The Commonwealth of Australia [2010] HCA 28 Szepietowski (1991) FLC 92-247 |
| Applicant: | MR GILBERT |
| Respondent: | MS GILBERT |
| File Number: | SYC 4675 of 2016 |
| Judgment of: | Judge Henderson |
| Hearing date: | 18 October 2016 |
| Date of Last Submission: | 18 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bacon |
| The Respondent in person |
| Counsel for the Respondent: | Ms Rayment |
ORDERS
The application filed by the father on 26 July 2016 is summarily dismissed.
Any costs application may be listed by contacting my Associate in chambers.
IT IS NOTED that publication of this judgment under the pseudonym Gilbert & Gilbert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC4675 of 2016
| MR GILBERT |
Applicant
And
| MS GILBERT |
Respondent
REASONS FOR JUDGMENT
The matter of Gilbert is an application by a father to break up his current assessed child support payments of $424 per week paid directly to the mother to $200 towards 3rd party payments and $242 directly to the mother. The husband seeks a substitution order under section 123 of the Act to bring into effect his proposed order.
In order to achieve this goal the father has set out a circuitous path through the relevant child support legislation stating in an annexure to his affidavit that the application is made under sections 3, 4, 5, 7B, 23, 25, 25A, 33, 98, 98W, 98X, 99, 100, 65D, 66, 66F(1)b, 66P, 66Q, 67ZC, 72, 111, 112, 113B, 116, 117, 118, 120, 123, 124, 125, 139, 141, and 143 of the Child Support (Assessment) Act 1989 and sections 71, 71B, 105, 11A, 111B, 111C, and 113A of the Child Support (Registration and Collection) Act 1988 and section 119 of the Family Law Act 1975.
The father does not by way of application seek a departure of child support under 117(2) of the Act[1] but merely makes mention of this in his rambling affidavit.
[1] Child Support (Assessment) Act 1989, s. 117(2).
He seeks leave under section 112 of the Child Support (Assessment) Act (1989)[2] for the Agency to proceed. I am unclear what he is seeking leave for the Agency to proceed with given there is no order sought for a departure application. However, his affidavit commencing at paragraph 24 seeks leave to depart from child support going back more than 18 months on the basis that the Court declare the mother’s husband be considered a financial resource to her for child support purposes.
[2] Above note 1, section 112.
Additionally he seeks an order for any declaratory orders needed to do justice between the parties. Again, I am in the dark in relation to the declarations he seeks and for what purpose these declarations are sought other than at paragraph 23 of this affidavit where he seeks the Court declare the mother’s husband be considered a financial resource to her for child support purposes.
Unsurprisingly the mother resists the application and the Child Support Registrar acting on an amicus basis provided submissions seeking the father’s application be summarily dismissed. The mother joins in and supports the application for summary dismissal.
It is for the father to make out his case and the mere citing of many sections of various Acts in an attachment to the father’s affidavit does not constitute good cause of action if there be none.
I will review the father’s evidence to support his case at its highest and then determine whether the summary dismissal application is made out.
The evidence I read was as follows:
a)For the father: His application, affidavit and financial statement filed 26 July 2016.
b)For the mother: Her affidavit filed 31 August 2016
Ms Rayment appeared amicus and made submission on behalf of the agency. The mother was unrepresented and the father was represented by Mr Bacon Solicitor.
The father’s application is as follows:
Final orders
1.From the date of these orders and until a final child support terminating event occurs in relation to X (born (omitted) 2003) and Y (born (omitted) 2005) (the children) any monies paid by the applicant to third parties for purposes directly related to the children’s educational, healthcare and general living costs (up to $200 per week) be credited at an appropriate percentage against any child support otherwise payable by the applicant to the respondent regarding the children.
2.Any declaratory orders required to do justice between the parties be made.
3.Any leave required to be given in these proceedings for them to proceed (within the Child Support Agency) under s112 Child Support (Assessment) Act 1989 (or otherwise) be so given.
4.Any further order [whether under the Family Law Act 1975, Child Support (Assessment) Act 1989 or otherwise] required to do justice between the parties.
5.The respondent pay the applicant’s costs of an incidental to these proceedings.
Interim Orders
1.Pending the final outcome of these proceedings, the applicant’s obligation to pay ongoing child support and arrears to the respondent regarding the children be stayed to the extent that that sum exceeds $200 per week.
I refused to grant a stay of the current assessment there being no basis at law that I could see to so do.
Going to the father’s substantive application. Order 1 seeks a substitution order under section 123 of the Act[3]. The substitution sought is not by consent see section 124[4].
[3] Child support (Registration and Collection) Act 1988, section 123.
[4] Above note 1, section 124.
The application is brought under s.123 of the Child Support (Assessment) Act 1989[5], which reads as follows:
[5] Above note 1, section 123.
An application may be made to a Court having jurisdiction under this Act for:
(a)an order that a liable parent provide child support otherwise than in the form of the periodic amounts paid to the carer in total to child support; or
(b) a lump sum under order.
The application can be made by the carer or the liable parent. There is jurisdiction and status for the applicant to bring this application.
In determining whether to make such an order, the Court must consider the factors set out in s.124 of the Child Support (Assessment) Act (1989) (“the Act”)[6], which reads in part that the section is to apply in relation to:
…orders for provision of child support otherwise in the form of periodic amounts paid to a carer entitled to child support.
[6] Above note 1, section 123.
124(1):
Where a carer entitled to child support, or a liable parent, makes an application under 123(1)(a), and the Court is satisfied it would be:
(b)(i) just and equitable as regards to the child, the carer entitled to child support and the liable parent; and
(ii)otherwise proper;
to make an order that the liable parent provide child the child, otherwise than in a form of periodic amounts paid to the carer entitled to child support, the Court may make the order.
I must also have regard to the matters set out in s.124(2) of the Act[7]:
[7] Above note 1, section 124(2).
In determining the application, the Court must:
(a)have regard to the administrative assessment enforced in relation to the child;
(aa)any determination enforced under part 6A, departure determinations –
(b)any order in force under division IV, departure orders in relation to the child;
(c)whether the carer who is entitled to child support is in receipt of an income tested pension, allowance or benefit and if that order was made they would be able to support themselves –
I accept there is no reference to special circumstances and there is no initial hurdle to be overcome, such as in a departure application under s.117(2) of the Act[8].
[8] Above note 1, section 117(2).
Additionally and pursuant to section 124(3)[9] the matters set out in section 117(4), (5), (6) and (7), (7)(a) and (8)[10] are matters I must have regard to in determining whether it is just and equitable to make the order sought. Those matters are as follows:
[9] Above note 1, section 124(3).
[10] Above note 1, section 117(4), (5), (6), (7), (7)(a) and (8).
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
Income, earning capacity, property and financial resources
(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
The court can only make a substitution order if there is already an assessment in place as there is here and the court is satisfied as to the matters under s. 124 of the Act[11].
[11] Above note 1, section 124.
Thus I must be satisfied on two basis namely that it is just and equitable as regards the child, the carer and the liable parent to make the order and otherwise proper before I can make the order . Then I must have regard to four specific factors under section 124(2) of the Act[12] although they do not limit what I can have regard to and finally address the factors in sections 117(4), (5), (6) and (7), (7)(a) and (8) of the Act[13]. I note the mother is not in receipt of an income tested pension.
[12] Above note 1, section 124(2).
[13] Above note 1, sections 117(4), (5), (6) and (7), (7)(a) and (8).
The relevant provision of the Act[14] providing for orders for child support to be paid other than in the form of periodic amounts paid to the carer are contained in Part 7 Div 5 of the Act[15], see section 122.
[14] Above note 1.
[15] Above note 1, section 122.
At page 30,703 of the CCH service relating to Substitution orders the authors state, “it is clear that Div 5 of Pt 7 should be seen as remedial Division providing for alternate methods of providing child support only if the circumstances of the case are such that periodic assessment fails to meet the objectives of the Act.”
In light of the mother’s objection to payment of child support being paid other than as assessed by the Agency and directly to her what are the grounds set out in the father material to support the exercise of my discretion under section 123 of the Act[16].
[16] Above note 1, section 124.
The father has exhausted his administrative review/appeal rights within the Agency and withdrew his application for appeal to the AAT in June 2016.
The husband can meet the assessed child support. That is clear from his financial statement. There has been no change in his circumstances that would warrant I review his capacity to pay. He can pay the assessed amount and yet seeks, in the absence of the mother’s consent, to pay part of his assessment to the 3rd parties he deems appropriate the children’s school and other 3rd parties, parties which are most unclear to me.
Why does he seek to do this?
At paragraph 5 he states he has a right to seek this order.
At paragraph 7 such an order may assist in him becoming more involved with the children.
At paragraph 8 that children ask him for additional things such as shoes, computers, phones, swimming lessons which he asserts he cannot pay. That it is unhealthy for the father to tell the children he cannot pay for these additional items. That by paying costs for their schooling such as camps, etc. directly the children would see that he is contributing to their welfare directly.
At paragraph 9 that the school is happy for this to occur and that he will honour the substitution order.
At paragraph 11 he has not always been invited to participate in the children education events and by directly paying their schooling costs he would become a “contracting party” and this would give him some “status” in these matters.
At paragraph 12 that in the long term a substitution order would bring long term benefits to the children’s wellbeing and overall “fairness of how he and the mother interact financially over the children” despite his acknowledgement that such an order may cause difficulties for the mother’s budgeting.
Paragraphs 14, 18, 20, and 25 support the mother’s contention that the father has launched these proceedings to flush out what he regards as her untapped wealth and financial resources for example at paragraph 18.
“The subpoena and R25A.08 processes will provide me with a full set of documents as regards the respondents work history and finances”. The husband has already has one bite at the cherry on this issue during his administrative review/appeals through the Agency and at the AAT proceedings which he withdrew from.
At paragraphs 15, 16 and 17 he asserts that the mother is not working and earning income to her full capacity and is not committed to full time employment.
At paragraph 19 that the mother lives a comfortable lifestyle and is thus underreporting her financial resources or not disclosing her income.
At paragraph 20 that the income accepted by the Agency as the respondent’s income grossly underestimates her income and financial resources.
At paragraph 22 that the mother has married a man of wealth. That as she lives with him he is a financial resource available to her and the Court ought to make a declaration to that effect which will ground the father seeking re-assessment.
In the remaining paragraphs the father then endeavours makes out a case for leave to review past assessments based upon a declaration he asks the court to make that the mothers husband is a financial resource for her.
Going to the case law. I was referred to a decision of Justice Kay in Szepietowski[17]. His Honour granted a substitution order for $2,400 per annum for school fees, however, no reasons were given to justify the order and the matter was dealt with on an undefended basis. This decision is of little relevance to the matter before me.
[17] Szepietowski (1991) FLC 92-247.
In the matter of Hall v Rushton[18] a substitution order was allowed for children clothing and the like where the wife had agreed to a nil assessment. Again no reasons where proffered why it was just and equitable and otherwise proper to make the order and the facts of that matter are vastly different to this matter.
[18] Hall v Rushton (1991) FLC 92-249.
I accept there need not be special circumstances in play as for an application under 117(2) of the Act[19].
[19] Above note 1, section 117(2).
Looking at the Child Support (Assessment) Act1989. An underpinning principle is that parents have a primary obligation to support their children and not other parties. Under s.66E of the Family Law Act (1975) (“the Act”), parents have a primary duty to maintain children and under s.66C of the Act[20] this duty is not of lower priority than the duty of the parent to maintain any other child or other person, and has a priority over all other commitments of the parent other than commitments necessary to support himself or herself or another child.
[20] Family Law Act 1975, section 66C.
Going to the facts of this matter.
The father has no obligation to support any other child or person other than his children with the respondent.
The father is paying his assessed child support.
He has sufficient income to pay that sum and support himself adequately.
Going now to the law relating to summary dismissal in the Federal Circuit Court.
Summary dismissal applications are difficult to succeed as the Court is mindful to ensure the citizen’s right to have a justiciable issue ventilated and determined is a protected. In Spencer v The Commonwealth of Australia[21], a decision in 2010 in relation to the summary dismissal power under the Federal Court’s legislation, the Court said that the growth and volume of unmeritorious litigation in the Federal Court and in the Federal Magistrates Court, as our Court was then known (now the Federal Circuit Court), over the last few years, particularly in migrations, caused the government to relook at the law surrounding summary dismissal applications.
[21] Spencer v The Commonwealth of Australia (2010) HCA 28.
The recommendation was that the rule be amended to read that the test be the application had “no prospect of succeeding”. In Fancourt & Mercantile Credits Ltd[22], the Court said:
The power to order a summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
[22] Fancourt & Mercantile Credits Ltd [1983] HCA 25.
This decision was referred to in the decision of Agar & Hyde vBatistatos & Roads & Traffic Authority of New South Wales[23], in which their Honours said:
The verbal formulae which are used in summary dismissal applications describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.
[23] Agar & Hyde v Batistatos & Roads & Traffic Authority of New South Wales [2006] HCA 27.
The Court went on to say that the test was high is cases of both mixed fact and law. Upon going back to the older decisions such as the Commissioner of General Steel Industries & Commissioner for Railways[24] and the decision in Dey & Victorian Railways[25], Dixon CJ said:
Once it appears there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious or an abuse of process.
[24] General Steel Industries Inc v Commissioner of Railways [1964] HCA 69.
[25] Dey & Victorian Railways [1949] HCA 1.
Section 17A of the Federal Circuit Court Act 1999 (3)(a) and (b) sets out a test for summary dismissal applications which is different to the Family Court. 17A is as follows:
The Federal Circuit Court of Australia may give judgment for one party against the other in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that of the proceedings; or
(2)(b) the Court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
In the Family Court the test is a much stricter test to be overcome to succeed on the summary dismissal application by an applicant being the application is bound to fail.
In a decision by, as he then was, Scarlett FM (latterly Judge Scarlett of the Federal Magistrates Court, now retired) of Pullman & Pullman[26], his Honour discussed the principles in a summary dismissal application. The test he said was “whether or not the applicant has a reasonable prospect of success”:
[26] Pullman & Pullman [2013] FCCA 31.
Rule 13.10 of the Federal Circuit Court Rules also provide:
The Court may order a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding if the Court is satisfied:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
His Honour’s decision referred to Justice Kirby’s decision in Lindon & The Commonwealth (No. 2)[27] and said in his decision:
The principles set out by Kirby J in Lindon & The Commonwealth (No 2) still provide a most helpful guide to the Court when dealing with these applications.
[27] Lindon & The Commonwealth (No. 2) [1996] HCA 14.
Justice Kirby said the approach to be taken by the Court is as follows:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief is rarely and sparingly provided.
2. To secure such relief, the parties seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief for absence of a reasonable cause of action is not a substitute for proceedings by way of a demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleadings.
6. The guiding principle is doing what is just. If it is clear that proceedings within the concept of the proceedings under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Looking as I must to the matters under 117(4), (6), (7), (7)(a) and (8) of the Act[28] if I was to exercise my discretion under section 123 of the Act[29] I find as follows.
[28] Above note 1, sections 117(4), (6), (7), (7)(a) and (8).
[29] Above note 1, section 123.
The Gilbert children have two parents each able to support them. An assessment has been made of the level of support to be paid by each parent based upon their respective incomes and financial resources, number of nights in each parents care and any other special needs relevant to a child support assessment such as private school fees etc.
Their father earns a significant income of some $164,000 per annum and has no impediment to paying his assessed child support. The father has taken this matter through the various administrative procedures available in the Child Support Scheme and his current assessment arises after he withdrew his Appeal to the Administrative Appeals Tribunal. He is clearly not satisfied with the Agency’s determination however he has pursued his remedies.
The father now seeks a substitution order to pay 3rd parties monies up to $200 per week for the support of his children and thus reducing the money received by the mother by $200.
This application must fail as it has no reasonable prospects of success for the following.
Taking his evidence at its highest I have no idea how the figure of $200 was arrived at and most importantly for what expense/s of the children it will be used. The father has not specified how the figure of $200 had been arrived at for example he is not paying a known amount for school fees, or for music lessons etc.
He has plucked a figure out of the air. He would, I suspect just spend the $200 or less on what he thinks is appropriate. To have had any chance of succeeding the father needed to identify an ongoing cost for the children and attach that cost to his figure of $200. He would need to demonstrate how the $200 would be spent for the support of his children and he has not and for that reason alone his application would fail and his application ought to be summarily dismissed. However, there are additional reasons why his application is doomed.
It is clear to me that the gravamen of the father’s complaint is that he believes the wife is not maximising her income and thus maximising his child support. This failure is both her laziness in not pursuing full time work as he sees it and that her husband is an unexercised financial resource. This is clear from his affidavit and his failure to specify at all the expenses he will pay to 3rd parties for his children benefit. Thus his application under section 123 of the Act[30] is of itself an abuse of process for it was the vehicle by which he sought to yet again revive processes to change the payment by him of child support because he is clearly unhappy with the administrative process which he has now exhausted.
[30] Above note 1, section 123.
Looking at section 124(1) of the Act[31] and again taking the father’s evidence at its highest he has not and cannot satisfy me that it is just and equitable as regards the children or the mother to make a substitution order or that it is otherwise proper. Indeed the reverse is true namely if I granted a substitution order I would be perpetrating an injustice and inequity on the children and mother. What would occur is that the mother would have $200 a week less to spend on the needs of her children and the father would receive a windfall of $200 a week to spend or not spend as he saw fit. Such an outcome would not be otherwise proper and would operate unjustly on the mother and the children.
[31] Above note 1, section 124(1).
Thirdly, there is no basis on the facts or at law that would impel me to exercise my power to make the declaration as sought. To do so would be a gross miscarriage of justice to the mother’s husband and be totally at odds with both the Child Support Legislation and the Family Law Act1975 in relation to child maintenance which is that parents have the primary duty to support their children and no other parties. These children have parents who not only have the primary duty to support them they do so and that is the end of the matter.
Reading again page 30,703 of the CCH service relating to Substitution orders “it is clear that Div 5 of Pt 7 should be seen as remedial Division providing for alternate methods of providing child support only if the circumstances of the case are such that periodic assessment fails to meet the objectives of the Act[32].” The periodic assessment of child support clearly meets the objective of the Act[33] in this case in that both parents are equitably sharing in the costs of caring for their children having regard to their income and financial resources.
[32] Above note 1.
[33] Above note 1.
The father is seeking merely to reduce the child support he pays to the mother and asserts I should assist him by using the Court’s power to make a declaration. There are very specific applications and evidence required to be filed to support the entertaining of an application to vary/reduce assessed child support and how it is paid and to whom and the father has failed to file such an application or produce any cogent evidence to support such an application.
As an aside if the Court had the power to declare a parents spouse a financial resource to them for child support purposes then in this case the father’s wife and her income would also be a financial resource to the father and thus the lid of Pandora’s Box would be well and truly open.
The application filed by the father is totally without merit. It is an abuse of process of the Court and has no prospects of success. It is frivolous and vexatious and is designed only to minimise the father’s considerable capacity to pay towards the support of his children and further harass and over bear on the mother with his assertions of obtaining further financial information from her and continuing Court processes and proceedings.
The application filed by the father on 26 July 2106 is summarily dismissed. I will list the matter for a costs application if requested to do so.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 21 March 2017
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