Godfrey and Godfrey
[2009] FMCAfam 626
•26 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GODFREY & GODFREY | [2009] FMCAfam 626 |
| CHILD SUPPORT – Application for departure order – future child support – application for lump sum. |
| Child Support (Assessment Act) 1989, ss.124, 117 |
| Gyselman & Gyselman [1982] FLC 92-279 Hides & Hatton [1997] 21Fam LR 855 Bendeich & Bendeich [1993] FLC 92-355 Prpic & Prpic [1995] FLC 92-574 Dwyer v McGuire [1993] FLC 92-420 In the Marriage of Bolton [1992] 15FAMLR 615 |
| Applicant: | MS GODFREY |
| Respondent: | MR GODFREY |
| File Number: | HBC1143 of 2008 |
| Judgment of: | Baker FM |
| Hearing date: | 28 April 2009 |
| Date of Last Submission: | 28 April 2009 |
| Delivered at: | Hobart |
| Delivered on: | 26 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzgerald |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | PWB Lawyers |
ORDERS
The application for a departure of an administrative assessment of child support for the periods 30 September 2008 to 30 November 2009 and
1 December 2009 to 30 June 2010 be dismissed.For the period commencing 1 July 2010 there be a departure from an administrative assessment of Child Support for the child, [X] born in 1993, such that the respondent father pay child support for the child in the sum of $618.67 per month, such period to conclude upon the following terminating events:
(a)Subject to paragraph (c) herein, the child turns 18;
(b)The child obtains full-time remunerative employment before her 18th birthday in which case the period concludes upon the commencement of that employment;
(c)Upon completion of her secondary education.
The application for payment of child support by means other than periodic be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Godfrey & Godfrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC1143 of 2008
| MS GODFREY |
Applicant
And
| MR GODFREY |
Respondent
REASONS FOR JUDGMENT
This is an amended application of the wife filed 8 April 2009. Pursuant to s.117 of the Child Support (Assessment) Act 1989 (“the Act”) she seeks a departure order from the administrative assessment of child support payable in the sum of $806.92 per month for the child [X], born in 1993, in that the child support be set at $618.67 per month payable from 1 September 2008 until the child reaches the age of 18 years or completes her secondary education, whichever is the latter.
Further, the applicant seeks that pursuant to s.124 of the Act, an order be made in substitution of the periodic payments, of a lump sum payment in the sum of $21,034.78, or such other sum as ordered by the Court.
The response of the husband filed 27 January 2009 seeks that the application be dismissed.
Issues and evidence
The applicant relies on section 117(2)(c)(i) and (ia) to support the application. It was her case that a departure order will result in certainty to her. The applicant alleged that the respondent’s earning capacity was greater than what he is now exercising, by virtue of his having left his government job voluntarily and taken a job [in the Hospitality Industry]. Also, the respondent has the extra financial resource of superannuation in the RBF investment account.
The respondent’s case is that there are no grounds to justify a departure order.
The main issues in respect of the lump sum substitution application are whether the father will continue to pay child support and whether the child [X] will complete her secondary education.
The applicant relied on the following documents:
·Her amended application filed 8 April 2009.
·Her application filed 12 November 2008.
·Her affidavits filed 12 November 2008, 6 February 2009 and 8 April 2009.
·Affidavit of Service sworn 19 November 2008.
·Her financial statement filed 4 February 2009.
The respondent relied on the following documents:
·His response filed 28 November 2008.
·His affidavits filed 28 November 2008 and 21 April 2009.
·His financial statement filed 23 January 2009.
Background
The applicant and the respondent married in 1995 and separated on or about 1 February 2004. There are three children of the relationship. The child, who is the subject of these proceedings, is [X] born in 1993.
On or about 1 February 2004, the parties entered into a private arrangement for the payment of child support for the children and the father agreed to pay the rate assessed by the Child Support Agency.
In April 2008 the applicant requested the Child Support Agency to collect payments for her.
On 17 October 2008 the respondent attained the age of 55 years. At that time he was working for the Tasmanian Government at the Department of [omitted]. He was also working [in the Hospitality Industry].
As at 12 November 2008, the respondent was in arrears of child support in the amount of $4,050.35. On 20 November 2008 he paid the sum of $2,000.00 and on 21 November 2008 he paid $1,100.00 towards the arrears, leaving a balance of $984.89. As at 28 November 2008 the respondent was in arrears of $381.00.
The respondent retired from employment with the Tasmanian Government on 22 October 2008. He had been [working in the Hospitality Industry] for some time. This was an unpaid position. Shortly before retiring, a paid position became available to the respondent [within the Hospitality Industry]. The respondent now has a permanent position [within the Hospitality Industry].
Upon the respondent’s voluntary retirement from the Tasmanian Government he received $10,000.00 in holiday and long service leave payments.
On 9 December 2008 the respondent rolled over into the Retirement Benefits Fund Superannuation investment account the sum of $101,074.61. He received a cash benefit of $19,461.21.00 after tax.
On 6 February 2009 the respondent signed an Undertaking that until the final hearing of this matter or until released by the Court, he shall ensure that there remains standing in his Retirement Benefits Fund Superannuation fund investment account membership number 1326739, a sum not less than $25,000.00.
The RBF exit statement indicated that the total amount of $122,967.41 was unrestricted non-preserved.[1]
[1] Exhibit “H1”
The respondent is currently paying child support to the applicant in the sum of $618.67 per month. He is not in arrears of any child support payments.
The respondent is currently earning an income of approximately $672.00 per week or $34,944.00 per annum.
The respondent has paid child support in the sum of $800.00 in December 2008, $800.00 in January 2009, $700.00 on 17 February 2009 and $715.24 on 17 March 2009.
The child [X] is fifteen and half years old and is currently attending [R] High School in year 10.
Relevant law
Section 117 sets out the matters of which the court must be satisfied before making a departure order. The court must satisfy itself:
“(i) Whether one or more of the grounds for departure in s.117(2) is established,
(ii) Whether it is ‘just and equitable’ within the meaning of s.117(4) to make a particular order; and
(iii) Whether it is otherwise ‘proper’ within the meaning of s.117(5) to make a particular order.”
Before making a determination to depart from a child support assessment, a “special circumstance” must be established. In Gyselman & Gyselman[2] the Full Court referring to the term “special circumstance” said:
“Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases…”[3]
[2] [1982]FLC 92-279
[3] op sit at para 29
The applicant is relying on the special circumstances set out in s.117(2)(c)(ia) which provides:
“ that, in the special circumstances of the case, application in relation to the child of the provision of the 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…
(ia) because of income, property and financial resources of either parent; or …”
The applicant is also relying on s.117(2)(c)(ib) which provides:
“(ib) because of earning capacity of either parent; or…”
The Court must follow the three step process with respect of each child support assessment period that is sought to be altered.[4]
[4] Hides & Hatton 21Fam LR 855
Lump sum or substitution order?
It is preferable for the payment of child support to be by way of periodic payments rather than a lump sum order anticipating the long-term future. In Bendeich & Bendeich[5] Mushin J said:
“The rational underlying the general approach of the Court was that the longer a lump sum order operates the greater the chance of change in circumstances necessitating a variation of that order, thereby making the order unjust. Those changed circumstances might be in relation to the liable parents, custodial parent or the children. Incomes may increase or decrease and children may change their living arrangements from one parent to another.”[6]
[5] [1993] FLC 92-355
[6] op sit at page 79,754
Section 123 provides that if there is an administrative assessment in force either the carer entitled to support or the liable parent can apply for an order that child support be provided in a form other than periodic payment to the carer.
Section 123(3) provides that before hearing the application for a lump sum the Court must first hear and determine any pending application made to the Court for an order under division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.
Section 124(1) provides that the order must be just and equitable and otherwise proper. The Court must have regard to the matters referred to in s.124(2), and in determining whether it is just and equitable and otherwise proper, the Court must have regard to the matters contained in s.117(4), (5), (6), (7) and (8).
It is necessary for the applicant to establish a need for a lump sum. The Full Court said in Prpic & Prpic[7]:
“Capitalisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties. However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances can not be predicted with any degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to a be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate so to do.”
[7] [1995]FLC 92-574 at page 81,688
Applicant’s evidence
The applicant earns an income of $36,712.00 per annum. She receives a parenting benefit and a family tax benefit of $4,836.00 per annum. She owns her home worth $260,000.00 and has a mortgage of $158,000.00, having equity of $102,000.00 in the property. She owns a car worth $9,000.00 and household contents worth $3,000.00. She has a credit card debt of $9,000.00 and $150.00 debit to GE Finance. She has superannuation of $20,000.00.
The expenses for [X] are $196.00 per week or $784.00 per month[8], of which the respondent is contributing the sum of $618.67 per month. The mother said that [X] has expressed an interest in attending [G] College for years 11 and 12. This is a private school with fees of $387.00 per month. The respondent has not agreed for [X] to attend [G] College and always assumed that she would attend [N] College, where the parties’ son [Z] attended. The applicant’s case was not run on the basis of the expectation by the parties that [X] would be educated at a private school. In any event, I am satisfied that it was not an expectation of the parties.
[8] Financial statement of applicant filed 4..02.09
The applicant said that since separation their son [Y] lived with the respondent for 18 months and then returned to live with her in 2006. In 2007 he then went to live with the respondent. She said that the respondent paid child support for [Y] and [X]. When [Y] was living with the respondent, the applicant did not pay child support to the respondent. In her affidavit the applicant said, for some months prior to April 2008, the respondent’s payments had been sporadic and she therefore asked the Child Support Agency to collect the payments for her. [9]
[9] 4 December 2008 – para 5
Annexure “A” to the applicant’s affidavit[10] indicated that $120.00 per fortnight was credited by the respondent to her bank account up until 29 April 2008. When it was put to her by the respondent’s Counsel that the payments were not sporadic, she answered that the amount paid by the respondent was not paid at the assessed rate. The applicant’s complaint was therefore that the respondent did not pay the correct assessed amount of child support.
[10] affidavit filed 6 February 2009
Annexure “A” of the applicant’s affidavit[11] indicated that $559.33 was outstanding in arrears for the period 14 December 2007 to 13 March 2008.
[11] affidavit filed 12 November 2008
Annexure “B” indicated that:
(i) On the issue date of 12 April 2008 the child support assessment was $423.83 per month, based on the respondent’s child support income amount of $63,501.00, for the period 14 March 2008 to 14 April 2008. This assessment took into account the fact that the parties child [Y] was residing with the respondent.
(ii) On the issue date of 12 April 2008, the amount of the child support assessment was $732.83 based on the child support income of the respondent of $63,501.00 from 15 April 2008 to 30 June 2008.
(iii) On the issue date of 12 April 2008, the child support assessment was $9,608.00 or $800.67 per month based on the respondent’s child support income of $63,501.00 for the period 1 July 2008 to 31 December 2008.
Annexure “C” indicated that:
(iv) On 15 August 2008 the child support assessment was $800.67 per month for the period 1 July 2008 to 31 August 2008.
(v)
On 14 August 2008 the child support assessment was $806.92 per month for the period 1 September 2008 to
30 November 2009.
On 5 January 2009 the Child Support Agency wrote to the applicant. The letter stated that there was a change in the frequency of child support payments, to now be payable monthly at the rate of $618.67, although the annual amount will not change.
Respondent’s evidence
The respondent has an income of $34,944.00 per annum. He pays rent of $220.00 per week. He has $12,500.00 savings, a car worth $6,000.00 and household contents worth $10,000.00. He has superannuation with RBF of $101,074.61. He does not have any debts.
The respondent said that the reason he ceased child support payments for [X], was due to the advice which he received from an officer of the Child Support Agency in about April 2008, that the Agency would start collecting [X]’s child support payments. This is consistent with the applicant’s evidence, that in April 2008, she asked the Child Support Agency to collect the payments from the respondent. During the same conversation with the Agency officer, the respondent was informed that he should have been receiving child support for [Y] from July 2007 to April 2008 and that the applicant was in arrears. In response to the respondent’s question, why the arrears could not be deducted from his liability to the applicant, he was told that nothing could be done because [Y]’s file had been closed because he was 18. The respondent objected and wanted the matter dealt with.
The respondent said he thought the payments for [X] would be suspended until the objection was determined. He said that he did not hear from the Child Support Agency again until September 2008, and it became clear to him then that the arrears had to be paid. He agreed for the child support to be deducted directly from his bank account. The first deduction occurred on 4 November 2008, before the applicant’s application for variation of the child support assessment was served upon him. On 4 November 2008, three deductions from his bank account, amounting to a total of $1,099.27, were made.
Counsel for the applicant did not object to this hearsay evidence. The evidence is relevant to explain the respondent’s conduct in ceasing the child support payments between April and November 2008.
In 2008 the respondent did not apply for a review of the child support assessment, notwithstanding that his 2006-2007 assessment included an extra sum of $15,000.00, which increased his income amount to $63,501.00. During cross-examination, the wife’s Counsel asked the respondent about his income when he was employed by the Tasmanian Government. He was asked about his child support income of $65,216.00 for 2008-2009. The respondent explained that he had received a lump sum of $15,000.00, which had accrued between 1998 and 2003 for on-call work, and it was not paid until 2007. His taxable income for 2007 was $63,501.00 and increased to $65,216.00 in 2008 for CPI rises.
The respondent said that that he leaves the child support assessment to the Child Support Agency. He said the sum of $10,00.00, which he received in the 2008-2009 financial year for long service leave and holiday payments, will be included in his income assessment for child support, after he lodges his income tax return. He said that he could seek a review, but he had no intention of doing so, “I am doing what the Child Support Agency says, it is not my job to assess, anything could happen, I could be out of a job.”
In respect of the respondent’s superannuation entitlement, he said he has no intention of accessing it in the foreseeable future. He said:
“I will continue to meet my child support liability and intend to remain in my current position for as long as the position is available and I am physically capable for working. I have no health issues restricting my working capacity and my position is permanent”[12].
[12] paragraph 14 – affidavit filed 21 April 2009
Whilst the respondent should not have stopped the child support payments in April 2008, I accept the respondent’s explanation that he did not pay child support between April 2008 and November 2008 due to his dispute with the Child Support Agency. I accept the respondent’s evidence that he will continue to meet his child support obligation. He has paid regular child support from 2004 until April 2008, although there was an issue of the level of payments towards the end of 2007.
Discussion
The application relates to a departure from the administrative assessment for the period 1 September 2008 to 30 November 2009. The assessment is based on the income of the respondent of $65,216.00 and the income of the applicant of $38,007.00 resulting in a child support rate of $806.92 per month.
The applicant did not give any evidence of the amount of the child support assessment at the time when the respondent was receiving an income from the Tasmanian Government of around $49,500.00. The only evidence was that:
“Following our separation, the father paid me child support in accordance with his assessment in a private arrangement in that the Child Support Agency did not need to collect payments as the father made his payments to me directly. Towards the end of 2007 the father’s child support payments had become sporadic such as that by April 2008 I was not receiving any child support payments and I had to request that the Child Support Agency collect on my behalf”[13]
[13] para 24 and 25 – applicant’s affidavit filed 12 November 2008.
The respondent said that the applicant and he had agreed on child support for [X] of approximately $240.00 per fortnight and that this sum was automatically deducted from his wage and paid direct to the applicant’s CBA account at [N].[14] This was incorrect, as the amount being paid to the applicant’s account was $120.00 per fortnight. The applicant annexed copies of her bank statements and indicated that the respondent had paid from 1 November 2008 to 30 April 2009 a sum of $1,590.00. She did not dispute when she answered the respondent’s affidavit, that the parties had agreed for the respondent to pay her $240.00 per fortnight child support for [X].
[14] Para 8 – respondent’s affidavit filed 28 November 2008
Neither party produced evidence of the child support the respondent was assessed to pay when his taxable income was $49,500.00. I infer from the agreement of the parties that the respondent’s child support obligation, when he was on an income of $49,500.00 employed by the Tasmanian Government, was around $480.00 per month.
The Court is required to consider, whether in the special circumstances of the case, the application in relation to [X] of the provisions of the Child Support (Assessment) Act 1989 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 respondent for [X], either (i) because of the income, property and financial resources of the respondent or (ii) because of the earning capacity of the respondent.
Are there special circumstances for the child support assessment period of 1 September 2008 to 30 November 2009?
The current child support assessment amount is $9,683.00 per annum until 30 November 2009. The respondent is currently paying $618.67 per month. He has an income from his permanent employment [within the Hospitality Industry] of between $33,000.00 to $36,000.00 per annum. The assessment is based on the respondent’s income of $65,216.00.
The respondent is currently paying more than he was assessed to pay when he was employed by the Tasmanian Government earning around $49,500.00, due to the inclusion of the lump sum payment of $15,000.00 in his child support income assessment amount.
The respondent said that when he lodges his income tax return for 2008 – 2009, his income will amount to around $43,000.00 to $46,000.00, due to the inclusion of the $10,000.00 lump sum payment in his taxable income. The respondent therefore expects to be assessed on this amount. The respondent will therefore pay a level of child support which is assessed on a similar income to the income he received when he was working for the Tasmanian Government.
I am not satisfied that the applicant has established a ground for departure for the child support period 1 September 2008 to 30 November 2009.
Future child support
There is no administrative assessment for the child support period from 1 December 2009 until [X] completes her secondary education. Counsel for the applicant referred to the case of Dwyer v McGuire[15] in which Lindenmayer J held that the structure of the Act is such that once a valid application for departure has been made, it throws open for consideration by the Court the question of departure from the administrative assessment provisions of the Act not only in respect of any current or past child support years but also in respect of any future years.[16] This decision was followed by Federal Magistrate Ryan, as she then was, in C & G[17].
[15] [1993] FLC 92-420
[16] at page 80,316
[17] [2002] FMCAfam361
Are there special circumstances that justify a departure for the periods after 30 November 2009?
Period 1 December 2009 to 30 June 2010
I repeat paragraph 56. Until 30 June 2010 or until the respondent lodges a tax return, he will pay a level of child support which is assessed on a similar income to the income he received when he was working for the Tasmanian Government.
I am not satisfied that the applicant has established a ground for departure for the child support period 1 December 2009 to 30 June 2010.
Period 1 July 2010 to 30 June 2011
For the 2010 – 2011 financial year, the respondent’s taxable income is likely to be between $33,000.00 to $36,000.00, if he continues to be employed [within the Hospitality Industry]working similar hours. This means there is likely to be a reduction in the amount of child support from the amount he paid when he was working for the Tasmanian Government.
Are the respondent’s lower earnings justified?
Section 117 (7B) provides that:
“…in having regard to the earning capacity of a parent of the child, the Court may determine that the parents earning capacity if greater than is reflected in his or her income for the purposes of this Act only if the Court is satisfied that:
(a) One or more of the following applies:
…(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parents decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern is not justified on the basis of:
(i) the parents caring responsibility; or
(ii) the parents state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to effect the administrative assessment of child support in relation to the child”.
There is no evidence which justifies the respondent reducing his income of the basis of his caring responsibilities or the state of his health.
Has the respondent proved that it was not a major purpose of his decision to change his employment or occupation to effect the administrative assessment of child support in relation to [X]? The onus of proof is on the respondent.
The respondent left his permanent employment with the Tasmanian Government earning a salary of around $49,500.00 per annum to work [within the Hospitality Industry]. At the time he left his employment he expected his income to amount to around $31,200.00 per annum. Prior to leaving his permanent employment he became aware in September 2008 that his objection with the Child Support Agency was not successful and that he would have to pay to arrears and that the child support assessment amount.
The respondent said during cross-examination that he would leave the assessment to the Child Support Agency “…it is not my job to assess, anything could happen, I could be out of a job”. Notwithstanding that the respondent had a permanent position with the Tasmanian Government, he left it knowing that anything could happen and that he could even be unemployed.
During cross-examination, the respondent said that it was not his intention for his child support payments to reduce. However, I am not satisfied that the respondent has proved that it was not a major purpose of his decision to leave his employment and change occupation to affect the administrative assessment of child support in relation to [X].
As to whether it would be just and equitable to make a departure order, the applicant’s financial statement indicated her weekly income is $706.00 per week and she receives child support of $154.00 per week being a total of $860.00 per week. She also receives $93.00 per week in government benefits, which I am required to disregard[18]. Her expenses amount to $1,301.50 per week and that [X]’s expenses amount to $196.00 per week. Other indirect expenses for [X] include a share of the mortgage payments and rates. The applicant has also indicated that [X] will have extra expenses attributed to her ongoing education.[19] The applicant owns a property worth $260,000.00 subject to a mortgage of $158,000.00. She owns a motor vehicle worth $9,000.00 and household contents worth $3,000.00. She has superannuation of $20,000.00. She has a credit card debt of $9,000.00.
[18] section 117(7A)(b)(ii)
[19] para 9 – wife’s affidavit filed 8 April 2009
The respondent’s income is $672.00 per week. In addition he receives $100.00 per week from his son for board and they share food costs. He has a greater earning capacity than his current income. He has not indicated what his tax liability is. He has expenses amounting to $588.00 per week. He indicated that he meets his child support assessment on his income. He has excess income after paying child support and this is sufficient for him to provide for all of his personal expenses. The respondent has funds in the bank of $12,500.00, a car worth $6,000.00 and household contents worth $10,000.00. The respondent has RBF superannuation of $101,074.61 which is unrestricted non-preserved.
Whilst the sum of $618.67 per month is more than the sum I have inferred the respondent was paying for [X]’s child support when he was employed with the Tasmanian Government[20], I am of the view that it is a sum which appropriate for the respondent to pay given the extra expenses the applicant has indicated [X] will have whilst completing her education, and having regard to the income, property and financial resources of the parties. The respondent can afford to pay this sum. If he had remained in employment with the Tasmanian Government his income may have increased. I am of the view that in the circumstance where the respondent has a greater income and earning capacity than the applicant does, that he contribute a greater share of [X]’s future costs. This is just and equitable.
[20] para 52
Having regard to the income, property and financial resources of the parties and their commitments, there will be no hardship to the respondent if the order is made. The sum of $618.67 per month is the sum which the respondent is currently paying and after payment he has excess income sufficient for him to provide for all of his expenses. In my view it is just and equitable to order a departure order for this period.
It is otherwise proper to order a departure order. Each party has the primary duty to maintain [X]. The respondent has a greater earning capacity than the applicant and is able to access his superannuation. There is no evidence that the order would have an effect on the entitlement of the applicant to a parenting benefit or family tax benefit.
Period 1 July 2011 until [X] completes her schooling.
I repeat paragraphs 62 to 73.
In my view it is just and equitable to order a departure order for this period and is otherwise proper to order a departure order in the sum of $618.67.
Should a lump sum be substituted for periodic payments?
The applicant said that [X] is not 100% decided about her future, and that she is leaving her options open. She has started a course in animal studies and it depends what course is available at each school campus. During cross-examination that applicant said that [X] is in the Navy Cadets and there is a chance she could join the Navy, although she was not sure that [X] is ready to join in the next one and a half years.
The applicant said that until recently she always wanted to join the Navy but, she has had a couple of trips recently and is now exercising caution. “She is a normal teenager, one day she was going into aged care after talking to a friend, she flips ideas around”.
It is not certain whether [X] will complete her education to year 12.
The provision of child support by way of lump sum payment is not the preferred method of maintaining children. Lump sum orders are usually considered where there are difficulties in enforcement or where liable parents are asset rich and income poor[21]. This is not a case where the respondent left his employment to avoid paying any child support, such as in the case of In the Marriage of Bolton.[22]
[21] see Reithmuller Australian Family Law Child Support Handbook at p.91,74
[22] [1992] 15FAMLR 615
The respondent is currently employed on a permanent basis and pays periodic child support for [X] of $618.67 per month. He has paid child support regularly for [X] and also for [Y]. Until April 2008 he made payments which commenced in 2004. At the end of 2007 he was not paying the correct assessed amount, however he arranged in September 2008 for the direct debits of the correct child support amount to be made from his account. He has continued to pay the assessed child support and has not sought a review or made a cross application to reduce the amount he is currently paying.
Notwithstanding that the respondent left his permanent employment in late 2008, I am not satisfied that the respondent has an intention to avoid the payment of child support for [X].
I am of the view that the circumstances in this case are not sufficient for me to find that it is appropriate to order a lump sum in substitution for periodic payments.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 26 June 2009
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