H and H
[2002] FMCAfam 99
•9 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2002] FMCA fam 99 |
| CHILD SUPPORT – Child Support (Assessment) Act 1989 – sections 117 (2)(c)(i) and 98. |
| Applicant: | G G H |
| Respondent: | S A P H |
| File No: | ZE 1604 of 2001 |
| Delivered on: | 9 September 2002 |
| Delivered at: | Dandenong |
| Hearing Date: | 16 January 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: |
ORDERS
THAT the Child Support Agreement entered into between the parties dated the 16th day of July 1996 be discharged as from the 1st day of October 1999.
THAT for the period 1st February 2002 to 30th June 2002 and for each annual period thereafter, the Father pay Child Support for the child A J H born on the 2nd day of November 1990 in the sum of $25.00 per week.
THAT from the period 2 October 1999 to 31 January 2002 the Father’s liability for child support be fixed at nil.
THAT the Child Support Registrar be requested to provide notice to the Mother and Father of the Father’s liability pursuant to these orders including his child support income for each child support year from the date of these orders.
THAT within 7 days of receiving employment, the Father notify the Mother of:
(a)The name and address of his employer or source of employment; and
(b)His anticipated annual taxable income.
THAT the Application filed 17 September 2001 be otherwise dismissed and removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
ZE 1604 of 2001
| G G H |
Applicant
And
| S A P H |
Respondent
REASONS FOR JUDGMENT
Introduction
This Application is brought by the Father pursuant to the Child Support (Assessment) Act 1989 (“The Act”) seeking to set aside a Child Support Agreement dated the 16th day of July 1996 whereby he is required to pay child support in the amount of $100.00 per week for the child of the parties, A J H, born on the 2nd day of November 1990 (“A” ).
Current child support liability
An Agreement was entered into between the Father and the Mother dated the 16th day of July 1996 which requires the Father to pay child support in the amount of $100.00 per week for A.
The Agreement was received by the Child Support Agency (“the Agency”) on the 8th day of August 1996 and was registered from the 1st day of June 1886 in case number 341456.
The liability became collectable by the Agency from the 7th day of January 1998. The daily rate was calculated by the Agency to be $14.28611. As at the 16th day of January 2002 the sum of $11,099.32 was outstanding.
A second case was established by the Agency. This occurred because the Father had substantial contact with A [s.25(1)]. The contact takes place from Wednesday after school until the commencement of school on Thursday, each alternate weekend from Friday afternoon until Monday morning and one half of the school holidays.
In the second case the payer is the Mother and any payment arrived at by Application of the Act [ss.39(1)(b); 47(1); 48(1)(d) and (e) and 49] would be set off by the Father’s liability under the Child Support Agreement. As the Mother’s income was below the threshold for application of the former, no liability arises in this case.
Sections of the Act relied upon
The Father relies upon section 117, section 141(1)J, section 98(1)(a) and (b) and section 95(6).
Prerequisites for an Application to the Court
As the Father seeks to vary a Child Support Agreement, there is no administrative basis upon which he can do so and he is required to make application pursuant to the provisions of section 117 of the Act (Section 98.).
Relevant law governing this Application
The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act. Section 3 contains the obligation that parents maintain their children. The objects of the Act are found in section 4. Each of the objects needs to be borne in mind when deciding an application under the Act. Section 4(3) of the Act recognises the desirability of parents reaching agreement for the financial support of their children. When interpreting the Act, the section requires that “the Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a)To permit parents to make private arrangements for the financial support of their children; and
(b)To limit interferences with the privacy of persons.”
Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part 7 include:
(a)That children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents, and
(b)That parents share equitably in the support of their children.”
Thus, the Act includes provisions that provide a scheme for the implementation of consent arrangements. Part 6, Division 3 contains the provisions that relate to applications to the Child Support Registrar for acceptance of a Child Support Agreement executed in accordance with the terms of Divisions 1 and 2 of the Part. The Registrar must make a decision to accept or refuse to accept the agreement (section 92). Once accepted, the liability to pay child support arises where child support was not already payable pursuant to an administrative assessment. Provisions contained in the Child Support Agreement for periodic payments have effect, for the purposes of Part 5, as if they were an order made by consent by a court under Division 4 of Part 7 [section 95(2)].
An application to vary a child support agreement must be determined in accordance with the provisions of section 117 of the Act. The Full Court of the Family Court described the approach to be taken in Wild and Ballard (1997) FLC 92-771 at 84,490. It held :
“In order to vary a consent order made under the provisions of Division 4 of Part 7 of the Child Support Assessment Act a Court must be satisfied that a ground for departure mentioned in s117(2) exists, and that it would be just and equitable as regards the child, the carer entitled to child support from the liable parent, and otherwise proper within the meaning of s117 to make an order changing an existing order.”
This is the genesis for the three-step process described in Gyselman (1992) FLC 92-279.
The Father relied upon s.117(2) (c) (i):
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this 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:
(i) because of the income, earning capacity, property and financial resources of either parent or the child;
The Father’s case
The Father relied upon his Application filed on the 17th day of September 2001, a Financial Statement and an Affidavit filed on the 2nd day of January 2002 and some oral evidence was given.
On the 17th day of September 1999, the Father had a stroke. At that time he was running a landscaping business and had started a car detailing business. At some point he also injured his knee which affected his capacity to work. As a result of financial difficulties that then ensued, the Father became bankrupt on his own petition on the 4th day of A 2001.
At the present time the Father is receiving a Newstart pension and Family allowance which total approximately $232.00 per week.
At the time of his Application the Father had interest in a home and the position of the sale of assets was not clear at the hearing, but after all debts were paid there would be little, if any equity left in the home. It is common ground that the Father has not paid child support in accordance with the Agreement since he ceased work in September 199, although he has paid for ballet lessons for A and has supported her when she is with him for contact.
The Mother’s case
The Mother concedes that the Father is in ill health and concedes his present financial position. Her case is that she is required to totally support A from her own income which is limited to a parenting pension and some income from cleaning of approximately $143.00 per fortnight which reduces to $50.00 per fortnight during school holiday periods.
She and A are required to share accommodation and I accept that their standard of living is detrimentally affected by the fact that she is not receiving child support from the Father.
The Mother argued that the Father keeps pedigree dogs and has paid ballet fees for A and asserts that he can afford to pay something for her support although she concedes that he probably can’t afford $110.00 per week at present.
She seeks that the arrears remain payable so that they can be recovered at the conclusion of the Father’s bankruptcy [s.5(I) and s.153(2)(d) Bankruptcy Act 1966 (Cth)].
Special circumstances and whether a ground for departure exists
Since the Child Support Agreement was entered into, there have been significant changes to the Father’s financial position.
The Father has had a stroke and a knee injury which have rendered him unable to work at the present time, although it appears that neither is a long term disability.
The Father’s only income is from his pension and family allowance and he has little in the way of assets. I am satisfied that it would be unjust and inequitable given his current income and assets to require him to pay $100.00 per week as the Agreement provides and there are special circumstances in this case which require a departure from his current liability [section 117(2)(c)(i)].
The next question to be determined is whether I should require the Father to pay any alternative sum or whether I should simply allow the provisions of the Act to apply. If no further order is made the effect of the Act is to provide that whilst the Father is in receipt of a pension, a sum of $ 260 per annum is payable from his pension [sections 66 and 66B(2)].
The Father’s capacity to pay child support
The Father is presently supporting A when she is with him and has paid her ballet fees. He is required to support himself from his pension of $400.00 per fortnight and $70.00 of family allowance a fortnight ($35.00 per week). It is the obligation of both parents to contribute to the support their children (sections 114 and 121). The Mother is doing so from her pension and family allowance and is presently meeting virtually all of A’s living expenses save for the ballet fees and the periods when she is with her Father.
I am satisfied that it would be just and equitable to require that the Father make some contribution from his family allowance to the Mother who has the major responsibility for A at the present time. The expenses as listed by the Father for his own living exceed his income, but by the same token, the Mother has little income other than the pension and parenting allowance and she too is in a position in which the way in which she would wish to provide for herself and A has been severely compromised by her present financial position. It is reasonable for the Father to also make some compromise to his present position in order to fulfil the requirements of the Act that both parties should be contributing to the support of A. A payment of $25.00 per week, or $50.00 per fortnight would require the Father to contribute to A’s support by payment of about 2/3 of his family allowance toward her support which in all the circumstances, in my view, is a reasonable payment at the present time.
Arrears
Having determined that the Father should make a contribution of $25.00 per week, it would not be reasonable to allow the current arrears to accrue when I have found that the Father has no capacity to meet the current obligations. First, he has not had the capacity to pay the sum of $100.00 per week since September 1999 and it would be artificial and inequitable to allow arrears to stand during that period. Secondly, the conclusion of the Father’s bankruptcy will not of itself provide him with a fund from which the Mother can recover arrears. Finally, child support is to provide for current support and not to be accumulated as a capital resource at some future time.
Conclusion
I am satisfied that it is just and equitable as regards the Mother, Father and the child that the current liability provided for by the Agreement be discharged and that he Father pay $25.00 per week towards the support of A. The orders will provide that the Agreement be discharged as from the 1st day of October 1999. I am satisfied that it is otherwise proper that these orders should be made. Whilst to some extent the continuity by payment of pension to both parties is providing for the support of A, the provision whereby the Father pays $25.00 per week to the Mother for her support will more equitably share the burden between them.
Notwithstanding that an administrative assessment will not apply in this case, I propose to request the Child Support Registrar to provide details of the Father’s taxable income for each child support year and the father to provide information to the Mother if and when he commences work. In this was she will have information which will enable her to seek revised child support once the Father commences work.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 6 September 2002
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