Gresham and Gresham (No 2)

[2017] FamCA 681

FAMILY COURT OF AUSTRALIA

GRESHAM & GRESHAM (NO. 2) [2017] FamCA 681

FAMILY LAW – CHILD SUPPORT – Child support departure application – Where the father seeks that the Court make an order departing from administrative assessment of child support to be paid by the mother – Where there are two children the subject of proceedings – Where the children currently live with the father and spend time with the mother – Where the Court ordered that the administrative assessment provisions be departed from and fixed at $25,000, payable by the mother.

Child Support (Assessment) Act 1989 (Cth) s 116, 117 and 118

APPLICANT: Mr Gresham

RESPONDENT: Ms Gresham

FILE NUMBER: BRC 10362 of 2013

DATE DELIVERED: 5 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Evans
Evans & Company
Family Lawyers

THE RESPONDENT: In Person

Orders

1. That pursuant to s 118 of the Child Support (Assessment) Act 1989 the annual rate of child support payable by the mother, Ms Gresham, to the father for the children, B born … 2008 and C born … 2012, for the child support period commencing 1 August 2016 and ending 31 December 2017 as determined by the administrative assessment provisions of the Child Support (Assessment) Act 1989, be departed from and fixed hereby at $25,000.

2. That pursuant to s 118 of the Child Support (Assessment) Act 1989 the annual rate of child support payable by the father, Mr Gresham, to the mother for the children, B born … 2008 and C born … 2012, for the child support period commencing 1 August 2016 and ending 31 December 2017 as determined by the administrative assessment provisions of the Child Support (Assessment) Act 1989, be departed from and fixed hereby at $nil.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10362 of 2013

Mr Gresham

Applicant

And

Ms Gresham

Respondent

REASONS FOR JUDGMENT

1. For immediate determination is an application by Mr Gresham (“the father”) for the Court to make orders pursuant to the Child Support (Assessment) Act 1989 (“the Act”) departing from administrative assessment of child support to be paid by Ms Gresham (“the mother”) in respect of their two children. 

2. These parents are parties to substantive parenting proceedings in which a number of interim hearings have taken place in recent years against a backdrop of changing circumstances in the lives of the parents. In response to an Application in a Case that was brought by the mother last year the father sought this child support departure on an interim basis.

3. Pursuant to existing interim parenting orders, the two children of these parties, aged nine and five, live with the father and spend time with the mother. At the time of the hearing of this application on 23 May 2017, they were only spending time with the mother for a couple of hours each other week, supervised at a private children’s contact service. The Child Support Agency’s administrative assessment currently requires the mother to pay the father only $7.93 per week in child support for their two children. The inadequacy of that amount compared to the reasonable weekly expenditure requirements for two growing children is plain to see. Whether the Court should make an order departing from that assessment is a matter for further consideration though.

Some further background

1. The father is 41 years old. He is employed in a full-time position and earns $120,000 gross per annum in that job. He also earns a small amount of additional income doing some work out of hours.

2. The mother is 39 years old. She has a Bachelor’s Degree and has a career history of highly paid employment.

3. The former couple began living together in Sydney in 2000. They relocated to south-east Queensland in 2006, married in 2011, separated in December 2012 and divorced in May 2014.

4. After their separation, the parties lived within the same suburb in F Town and shared the parenting of their two young children. They finalised a property settlement with consent orders in February 2014.

5. The children moved between the parents household’s and care for a few years with a reasonable degree of parental co-operation. The father was working in the same job he still works in. The mother was working for a Brisbane firm, where she had been for a few years. There is disagreement between the parties as to the exact nature of the parenting arrangements that existed between them at the time, but it was apparently based around a shared care regimen of nine days a fortnight in the mother’s home (the former family home) and five days a fortnight in the father’s home with the father caring for the children sometimes during the time they were meant to be in the mother’s care when her work commitments required same.

6. By agreement between the couple, both children were enrolled at a local private school and each has been attending at that school since they commenced their formal education.

7. Although all the facts surrounding the cessation of the mother’s employment with the Brisbane firm in early 2014 are not clear as the mother and the firm have each relied on a confidentiality agreement not to reveal them, there is a distinct inference conveyed in the evidence of the father that it had something to do with alcohol abuse on the mother’s part. In any event, the mother has not fully and frankly disclosed the circumstances of her departure from her employment with that firm to the father or to this Court.

8. The father says that in the first half of 2014 he began agitating for some changes to the parenting arrangements the parties had so that an equal shared care regimen could be established. He asserts that from that time onwards his parenting relationship with the mother began to deteriorate. Disagreement about the mother taking the children for a holiday overseas in that period of time added to their problems, he said.

9. After the mother finished working for the Brisbane firm, she made the decision to take a similar job working for an international firm in Asia.  She proposed to the father that he agree to allow the two young children to move to live in Asia with her. She proposed that she would have them educated at very expensive private schools in Asia. The father did not agree with the mother’s proposal.

10. The substantive parenting proceedings that remain extant in this Court were then commenced by the mother. She sought orders that the children be allowed to relocate with her to Asia. A family report was obtained from an experienced social worker. It did not recommend that the children be permitted to relocate to Asia with the mother. The mother was unsuccessful in obtaining those orders that she sought. She moved to Asia and took up the position and the two children remained living in F Town in the full-time care of the father, spending time in the school holidays with the mother.

11. The mother was earning in excess of $170,000 per annum for the work she was doing in Asia. Whilst living there, she rented out her home in F Town, though not earning enough in rent to cover the mortgage liability repayments.

12. Again, in circumstances not fully and frankly detailed to the father or to this Court, the mother’s employment with the firm in Asia ended in or around April, 2016. She did say she sought to transfer with that firm back to a position in their Brisbane office but that there was none available and that as she was missing the children so much, she decided to leave the firm and return to Australia anyway. She said there was apparent agreement for her to leave without the required period of three months’ notice and the evidence permits inferences that the mother had some issues with her health that also influenced the decisions of the mother and the firm at the time. Nevertheless, I do not accept that the mother was entirely truthful about all of this, but rather withheld the real facts from the father and this Court for her own reasons.

13. Upon finishing work in Asia, the mother then travelled to a number of other countries over several weeks before returning to Australia in the middle of last year. Then, apparently relying on assertions recorded by the family report writer as having been made to her by the father when the report was done that he would agree to an equal shared parenting regime if the mother returned to Australia, the mother sought same from him. No agreement was reached and the mother brought an Application in a Case in the substantive proceedings. By then, of course, those substantive proceedings had changed from a dispute about whether or not the children relocated to Asia to being a parenting dispute about the amount of time the children spend in the care of each parent, both again living in F Town.

14. In late August 2016, Senior Registrar Spink made interim parenting orders that resulted in the children beginning to spend alternate weekends with the mother. Subsequent to that though, the father learned from a friend of the mother that the mother had been admitted to hospital apparently suffering from some form of mental health disorder and he suspended the children’s time with the mother. On 1 December 2016, the Senior Registrar then made orders suspending the children’s alternate weekend unsupervised time with the mother and providing for supervised time to take place at the private contact centre. He also ordered that the children be represented in the proceedings by an Independent Children’s Lawyer and listed the matter for further mention in January this year.

15. In January, an order was made for the mother to be examined by a court expert psychiatrist who would report to the Court. By then, the father’s Response to an Application in a Case wherein he sought departure from the administrative assessment of child support, had been filed and the mother was also ordered to disclose “all sources of income she has received since 21 November 2016 including any money received from Airbnb either by her or on her behalf”.

16. A Contravention Application filed by the mother was listed, heard and determined by me in the early part of the year, with the mother having some limited success in that. The father’s Response to an Application in a Case was listed and heard on 23 May 2017. I regret not being able to deliver this judgment before now.  Annual leave of several weeks that fell since the hearing of the matter and the responsibility for hearing and deciding many other cases explains the delay.

17. To be clear, the administrative assessment of the Child Support Agency currently in place is the outcome of a number of administrative applications for review of the original assessment made. In short, the mother says it is a proper assessment and should continue to apply, with the mechanisms of the administrative assessment process utilised within the Child Support Agency being the means by which any assessment should continue to be assessed.

18. For the father, it is submitted that this Court should determine the application pursuant to the provisions of Part 7 Division 4 of the Act.

Application to the Court for an Order under Part 7 Division 4

1. Pursuant to s 116 of the Act, a carer entitled to child support (as the father clearly is) may apply to the Court for a departure order under Part 7 Division 4 of the Act in the special circumstances of the case if:

   (i)He is a party to an application pending in a Court having jurisdiction under the Act; and

   (ii)The Court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under Part 7 Division 4 in relation to the children in the special circumstances of the case.

2. The father is and was at the time he filed his Response to an Application in a Case, a party to an application pending in this Court and this Court has jurisdiction under the Act. I am quite satisfied that it is in the interest of the father and the mother to consider whether an order should be made pursuant to Part 7 Division 4 of the Act in relation to their two children in the special circumstances of this case. The application was filed, listed for hearing and heard. I am readily satisfied that it is in the interests of the parents and the two children now to determine it by considering whether an order for departure from the administrative assessment of child support should be made in the special circumstances of the case. This case clearly has a number of features about it that do, in my judgment distinguish it from the ordinary run of cases in which child support assessments are made. The fact that the mother had a strong work history and was earning in excess of $170,000 per annum for a number of years before she abruptly left her employment in Asia, came back to Australia and has not worked in paid employment up until the time of the hearing in late May this year, is not the least of them. The issue of the mother’s health and its relevance is but another, as is her continued ‘unemployment’.

On what basis would departure from administrative assessment be granted?

1. Pursuant to s 117(1) of the Act, the Court may make the departure order where it is satisfied that:

   (i)One or more of the grounds for departure mentioned in subsection (2) of the section exists or exist; and

   (ii)It would be just and equitable as regards the child, the carer entitled to child support and the liable parent; and

   (iii)It would be otherwise proper.

2. There are two of the grounds mentioned that I consider relevant in this case. First, s 117(2)(b)(ii) introduces the matter of the costs of maintaining the child (or children in this case) being affected because they are being educated in the manner that was expected by their parents. These two children go to a private school by choice of the parents and sending them there costs quite a lot of money. Plainly, that affects the costs of maintaining them.

3. Second, s 117(2)(c) introduces the matter of application of the administrative assessment provisions of the Act resulting in an unjust and inequitable determination of the level of child support to be provided by the mother for the children because of the income, property and financial resources of the mother or the father or because of the earning capacity of either parent. As I have observed already, the mother has been assessed as liable to pay $7.93 per week to the father in child support for the two children. As I have already observed earlier in these reasons, that appears to be plainly inadequate when one considers how much it would cost to reasonably maintain two young children and educate them at a private, fee-charging school. The immediate question though is whether that is “an unjust and inequitable determination” of the level of child support to be paid by the mother having regard to the income, property and financial resources of each of the parents or because of the mother’s earning capacity.

4. I consider that it is. I will, of course, now set out my reasons for reaching this conclusion along with the rest of my consideration of the father’s application. 

5. Section 117(7B) of the Act prescribes the circumstances in which the Court may determine that a parent’s earning capacity is greater than is reflected in his or her income for the purposes of the Act. It can only be if the Court is satisfied of a multitude of matters. They are:

   (a)        One or more of the following:

   (i)The parent does not work despite ample opportunity to do so;

   (ii)The parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engage;

   (iii)The parent has changed his or her occupation, industry or working pattern; and

   (b)The parent’s 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 parent’s caring responsibilities; or

   (ii)       The parent’s state of health; and

   (c)The parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

6. The mother left her high paid employment in Brisbane and went to high paid employment in the same occupation in Asia. She then left that and returned to Australia, but not to employment. She has remained unemployed and in receipt of benefits from the Commonwealth Government through Centrelink since she returned to Australia, at least up until the hearing of this application in May.  Plainly, she has changed her working pattern.

7. As I have observed, the mother says that she decided to leave Asia and return to Australia because she missed the children. As I have said, I do not accept that she has been entirely frank or honest about the complete circumstances surrounding that. In any event, I consider that lack of honesty is to the detriment of her case. I am concerned that the reality may very well be that her employer asked her to leave. But I am unable to determine that is the fact as the mother has said that she decided to leave that employment and the father has not put contrary evidence before the Court. As such, the mother has left the Court having to conclude that she chose to end that high paid employment and return to Australia without securing employment before returning. Furthermore, she has not adduced evidence that persuades me that she legitimately or justifiably did that because of her health, or her caring responsibilities. I do not find that deciding to leave that job in Asia and to come back to Australia to unemployment was made necessary by caring responsibilities just because she wanted to see the children more than she was seeing them whilst she was living in Asia.

8. The third and final matter of which the Court must be satisfied is an interesting one. The legislative provision is written so as to squarely put the onus of proving that affecting the child support assessment was not a major purpose for the change in employment on the parent who gave up that employment. In that respect, I have regard to the fact that the parents were already in dispute about the level of child support the mother was liable for in 2015. At one point in time, the mother was assessed as liable to pay child support for the children at the annualised rate of $15,840 for the period between October 2015 and April 2016. The Child Support Agency’s internal review processes seeking changes to the assessment had been initiated by both the father and the mother whilst the mother was living and working in Asia. The parents were clearly in substantial dispute about the level of child support the mother was paying.

9. The mother left Asia in the first half of 2016 lodging an objection around that time in which she relied upon the fact that she was returning to Australia to unemployment to seek a reduction in her child support liability. In these circumstances, without more than her bare assertion that she wanted to return because she missed the children, I am unable to say I am satisfied that the mother has discharged the onus upon her to satisfy the Court that affecting her child support liability was not a major purpose of her decision to leave her employment in Asia and return to Australia and unemployment. In other words, I am satisfied that the mother has not demonstrated that which the subsection requires her to demonstrate. Accordingly, the third precondition for being able to determine that the mother’s earning capacity is greater than is reflected in her income (at least during the relevant period, being the period for which the father seeks the administrative assessment to be departed from – 1 August 2016 to 31 December 2017) is met.

1. In the absence of any evidence adduced by the mother that her employment circumstances are directly related to her state of health, physical or mental, I am quite satisfied that the mother has not fully exploited her real earning capacity for the period between 1 August 2016 and the date of the hearing in May this year. The very non-specific documents she referred to asserting they evidence Centrelink’s satisfaction with her job-seeking efforts did not dissuade me from that satisfaction. No evidence I read or heard persuaded me that she would be likely to exploit her true earning capacity for the period from the date of the hearing until the end of the year either.

2. Clearly then, I am satisfied that one or more of the grounds for departure mentioned in s 117(2) of the Act exists or exist. The ground provided for in s 117(2)(b)(ii) exists (the private schooling of the children) and the ground provided for in s 117(2)(c)(ib) exists (the mother’s earning capacity issue). I will leave the question of determining whether the ground provided for in s 117(2)(c)(ia) exists until later, if it is at all necessary.

What would be a just and equitable determination of the level of child support the mother should pay for the period from 1 August 2016 to 31 December 2017?

1. Section 117(4) prescribes that in determining the answer to the question just posed the Court must have regard to a list of things. They are:

   (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.

2. I have regard to each of those matters. In particular, I accept the father’s evidence, set out in his Financial Statement filed 15 February 2017 that the average weekly expenditure requirements he has for the children total $1,210 per week, including school fees and the cost of before and after school care for the children. If it is not exactly that amount each week, I have no reason to doubt that it costs him around that much on average each week to support the two children and educate them at the private school. I specifically reject the mother’s argument that many of those items of expenditure would be expenses he would have even if he did not have the children in his care.

3. I accept the father’s evidence that he earns gross income of $2,542 per week or around $132,000 per annum. Out of that income, as well as around $1,200 for the children, he pays tax of around $660 per week, mortgage repayments of $527 per week, rates of $62 per week, insurance premiums equal to $87 per week, car registration of $13 per week, arrears of tax of $46 per week and other expenses for his own personal needs of $533 per week. That totals $3,128, leaving him with a shortfall of around $586 per week that he says he meets with assistance from his family who he is also indebted to for in excess of $20,000 in respect of borrowings to pay his legal fees in these proceedings.

4. The father owns the home in which he and the children live. He says it is worth $550,000. He is paying off a loan secured by mortgage over the property and he owed $444,896 on it in February this year. He has a car said to be worth $5,000 and the furniture and contents of the home said to be worth $6,000. Apart from a superannuation interest, those are his assets.

5. The mother retained the former family home in the property settlement. She says it is worth $600,000 but is encumbered by mortgage securing $518,441 in debt earlier this year. Some of that debt was borrowed after her return to Australia last year, but only a small portion of it. Otherwise, she, too, does not have much in the way of assets. She has some shares in a health fund worth almost $4,000 and her motor car said to be worth $32,500, her household furniture said to be worth $10,000 and her jewellery said to be worth $10,000. She has a little bit more superannuation than the father. She also has some other debts. She says she has a credit card debt of around $15,000, a debt to her former lawyers of $9,000 and debts to “private creditors” of $32,000. Worthy of comment, in my judgment, is the fact that the mother did not give details about who those creditors are and how much each is owed or on what basis, leaving the father and the Court to speculate about that.

6. The mother described herself in her January Financial Statement as unemployed and said her income consists of Newstart Allowance of $315.40 and a small share dividend of $1.80 per week. At the same time, she said her mortgage liability is $567 per week and other personal expenses are $408 per week. How she survives on her pension benefit with $1,000 per week expenditure requirements is indeed a matter for consideration.

7. The mother told the Court that on her return to Australia mid-year last year she drew against the remaining equity in her property and put $8,000 of that aside to meet the ongoing mortgage repayments. Plainly, that would have only lasted less than 16 weeks.

8. Against that, the father adduced evidence that proved revealing about the mother’s conduct since her return to Australia. He adduced evidence that satisfied me that the mother had listed her home on internet websites for short term holiday rental, either with her in occupation or with her allowing vacant possession. The evidence showed that the mother was charging $100 per night for two night minimum stays if she was staying in the home, or $800 per night for the whole house. The house is located at the northern end of F Town not far from the park precinct and offers attractive holiday amenity, including a swimming pool with a swim up bar.  The evidence the father adduced included evidence of reviews posted by numerous persons portraying satisfaction with the rental arrangement and happy holiday experiences in the home. It also included email correspondence between an employee of the father’s solicitors’ firm (who, of course, did not tell the mother who she worked for) and the mother in which enquiries about the potential rental of the property were favourably answered by the mother.

9. When confronted with this evidence in affidavit form with plenty of notice, the mother did not, in my mind, deal with it in an honest or satisfactory manner. First, the father’s evidence is that the mother immediately caused the entries on the internet rental sites to be removed. Next, her evidence about it was vague, unclear and unconvincing. In essence, I understood her to say that when she returned to Australia mid-year last year, she could not move back into her home as it was still rented out pursuant to a lease entered into when she was in Asia. Consequently, a friend of hers gave her permission to live in an apartment owned by that friend, rent free, without obligation. The mother said that when she moved back into her home she felt morally indebted to her friend and therefore listed her place on the short-term rental internet sites with the very small amount of income she received for the few rentals she said she obtained being paid to her friend to compensate for the rent free accommodation she had been given.

10. The mother adduced no documents into evidence to support any of what she said about this. Frankly, I did not believe her evidence as truthful. I am quite satisfied that over a period of several months she received income for short term rental of rooms in her home or the whole home that she has not told the father or the Court about, not to mention the Child Support Agency.  Determining how much that might have been is actually impossible, though in peak holiday time it could readily have been as much as around $5,000 per week.

11. The mother deposed to having paid $846 towards school fees in August 2016 and $911 in October 2016, being for the last two school terms of that year. She adduced documentary evidence from the school corroborating that. The father did not dispute that. Of course, I must take that into account in determining any departure orders I make. She also said that she had paid for some other expenses for the children being $128 for some reading glasses for one of them, as well as clothing for them retained at her home for their use when in her care.

12. Though at the time of the hearing the children were only spending a few hours of supervised time with their mother, that is not a state of affairs I considered would be in place for very long. I expect the children will be spending more regular, unsupervised time with the mother in the not too distant future. I expect she will have some expenses of her own in caring for them at that time.

13. Finally, I have regard, as I must, to questions of hardship that would be caused to the children, the father or the mother by the making of a departure order or the refusal to make such a departure order.

14. I am quite satisfied that it is unjust and inequitable, as between the father and the mother, in all the circumstances of this case for the mother to only be assessed as liable to pay only $7.93 per week ($412 per annum) to the father to assist him in the financial support of their two children from August 2016 to December 2017. Leaving such an assessment in place causes hardship to the father as he meets virtually all of the costs of raising these two children himself.  On the other hand, I cannot simply be punitive in my determination as to what the mother should be liable for paying without being conscious of the hardship that might cause her if I set her liability too high.

15. I am conscious of the fact that the mother was earning more than the father earns in the last few years of her employment and that she did, she says, voluntarily give that up. Nevertheless, I am not persuaded that fact demands that she should be determined now to have to meet more than half their weekly expenditure needs of around $1,200. I remain somewhat troubled about the actual state of the mother’s mental health and the role it may be playing in her employment situation and note that I have not had the benefit of the psychiatric report that was to be obtained from Dr J, given the parties were still waiting on that at the time of the hearing before me.

16. The father seeks an assessment set at the annualised amount of $27,378 which is $526 per week, slightly less than half of the weekly amount of $1,200 that he spends on the children on average.

17. The mother has sufficient equity in her property and in the reasonably valuable motor car that she owns to cover such an amount if it were to be paid in one lump sum. If I make the order as sought, it will not immediately all become owing in one lump sum. Only arrears calculated from the date of commencement of the child support period that I include in the order to the date on which the mother commences paying the periodic amount will be immediately payable as a lump sum. Such amount, if substantially less than the value of her motor car, could simply be paid by her selling her motor car and buying one that is worth around $5,000, such as the one the father drives. In any event, having regard to the evidence about the short term rental of her home, I am not convinced the mother does not have access to funds in any event.

18. The father sought an alternative order that the mother pay half of the cost of the private school fees, the book and stationery expenses and school uniform expenses plus $150 per week per child. I consider that would total something less than $526 per week but it is difficult to be precise without full particulars and details of the likely cost of school books and stationery and school uniforms.

19. I am not satisfied that it would be appropriate to make such an alternative order. I consider it far better for an order to be made that sets an annualised figure for the complete liability of the mother, that includes consideration of private school fees and the cost of school uniforms and books, rather than expressly obliging the mother to pay some portion of those expenses. Although she had made payments directly to the children’s school in recent times, there is no guarantee that will continue, even if ordered, and I would not want to directly involve the school in the dispute between the mother and the father any more than it currently might be. I have had cases before in which the non-payment by one parent of half of the school fees to a private school seriously jeopardizes the relationship between the family and the school. I do not consider that to be something that is in this family’s interests.

20. In the end, taking the relatively robust approach that I consider I am entitled to take in the matter having regard to my factual findings, I consider that a determination that the mother’s liability for child support for the two children for the child support period commencing 1 August 2016 and concluding 31 December, 2017 be set at the annual rate of $25,000, the equivalent of approximately $480 per week, would be just and equitable as regards the children, the father and the mother in this case.

Would such an order be “otherwise proper” within the meaning of that term as used in the Act?

1. Section 117(5) of the Act prescribes the things the Court is to have regard to in determining the answer to the question just posed. Those matters are:

   (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.

2. I am satisfied that the order I propose to make demonstrates appropriate regard to the fact that it is the parents of children themselves who have the primary duty to maintain those children. As for the second matter to be considered, it is clearly not very relevant in this case as the father is not in receipt of an income tested pension. He works for a living and earns around $130,000 per year which he spends on supporting himself and the two children. That income will not be affected by the child support departure order I am considering making. He would just have less of a shortfall between his current expenditure requirements and his income. That would be good for him and the children.

3. He has deposed in his Financial Statement to receiving a child care rebate. I presume he receives that from the Commonwealth Government. I am unaware whether that is income tested but consider it likely that it is. I am unaware whether the receipt of child support of $480 per week from the mother would affect that child care rebate he receives. If it does, it could be expected to reduce it. If that is the case, then I can say that I am satisfied that would be a good outcome for the Commonwealth tax payers and, therefore, within s 117(1)(b)(ii)(B) as I understand it, “otherwise proper”.

The father’s liability

1. The father also sought an order that any liability he is assessed as having for child support for the corresponding child support period should be fixed at nil. In the circumstances of the case, particularly the fact that the children were spending very little time with the mother at all pursuant to current parenting orders when the matter went to hearing, I am not completely sure why the father sought this order. However, the mother did make it clear in her oral evidence that her intention is to press for parenting orders that have the children living at least in an equal shared care arrangement between them and that if she is successful in that endeavour she will most certainly apply for child support to be assessed against the father.

2. In such circumstances, having regard to my findings in this matter, I am satisfied that the order the father seeks in respect to fixing his child support liability at nil for the same period as I fix the mother’s liability at the equivalent of $480 per week is also just and equitable and otherwise proper. It will give the parties certainty in respect of child support for the next four months thus making the negotiation of parenting arrangements in that time more likely to be child focused rather than child support focused.

3. Accordingly, I will make the orders set out at the commencement of these written reasons.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 September 2017.

Associate: 

Date:  5 September 2017