H and T
[2003] FMCAfam 47
•25 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & T | [2003] FMCAfam 47 |
| CHILD SUPPORT – Application to set aside child support agreement pursuant to s.136 Child Support (Assessment) Act – alleged fraud/undue influence – departure application. |
| Applicant: | V A H |
| Respondent: | P N T |
| File No: | DGM 1763 of 2002 |
| Delivered on: | 25 February 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 20 December 2002 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahon |
| Solicitors for the Applicant: | Peninsula Community Legal Centre |
| Counsel for the Respondent: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
ORDERS
That the mother’s form 63 application filed 8 August 2002 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGM 1763 of 2002
| V A H |
Applicant
And
| P N T |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were initiated by the mother’s form 63 application which in effect sought a discharge of the child support agreement dated 31 October 2000. The application itself does not make it clear, on what basis the agreement should be set aside. Although in the running of the case it appeared that the mother sought firstly to set aside the agreement pursuant to section 136 of the Child Support (Assessment) Act 1989 (‘CSAA’) on the grounds that it was obtained by fraud or undue influence or alternatively to have the agreement departed from pursuant to section 117(2)(c)(i) or (ii) on the grounds that her income had decreased since entering into the agreement. The Husband sought to have the mother’s application dismissed.
The documents
Each party filed an affidavit stating their financial circumstances. In addition both parties gave oral evidence.
The background
The mother is a part time Receptionist who lives at 3 C Avenue, L. She earns according to her financial statement approximately $342.00 per week by way of wages and in addition she receives $83.00 per week from the pension plus child support. The child support is paid pursuant to the provisions of the agreement signed by the parties on
31 October 2000.
The agreement provides for the payment of the sum of $1,325.00 per month of which $200.00 is represented by car and mortgage payments of $100.00 per week each. The agreement provides that it will continue until the children reach the age of 18 and that the payments are to be adjusted for inflation on 1 July each year. The mother alleges that the agreement was entered into while she was in a state of duress and she also says that she was not aware of her legal entitlements or the procedural requirements to discharge the agreement.
The father is a Project Manager who lives at 51 M Drive, S F. That property is still in joint names. He earns approximately $85,000 per annum and in addition to the two children of the relationship he supports a child K aged 18 years, his child from a previous relationship in the sum of $450 per month.
The parties finally separated on 9 September 2000. There are two children of the relationship, twins, L and S T born 31 March 1992.
The relevant law
Section 4(1)(2) and (3) of the Child Support (Assessment) Act 1989 (‘CS(A)A’)
Objects of the Act
(1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
(a) that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b) that the level of financial support to be provided by parents for their children should be determined in accordance with the legislatively fixed standards; and
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e) that Australia is in a position to give effect to its obligations under international agreements or arrange-ments relating to maintenance obligations arising from family relationship, parentage or marriage.
(3) It is the intention of the Parliament that this 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.
Section 136 of the CS(A)A
Power of the Court to Set Aside Agreements
(1) A court having jurisdiction under this Act may set aside a child support agreement that has been registered in the court if the court is satisfied, on application by a party to the agreement, that the concurrence of the party was obtained by fraud or undue influence.
Section 98(1) of the CS(A)A
Variation etc. of provisions of child support agreement by court
order
(1) Where:
(a)under section 95, provisions of a child support agreement have effect, for the purposes of Part 5, as if they were a court order of a particular kind; and
(b)the agreement, or those provisions of the agreement, are registered in a court having jurisdiction under this Act; the provisions may be discharged, suspended, revived or varied by the court in the same manner and in like circumstances as the court could discharge, suspend, revive or vary an order of that kind made by it.
Section 117(2)(c)(i) and (ii) of the CS(A)A
Matters as to which court must be satisfied before making order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(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; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child
In Gyselman and Gyselman (1992) FLC 92-279 the Full Court held,
Section 117 clearly establishes a three-step process, namely:
(awhether in the special circumstances of the case a ground of departure has been established;
(b)whether it is “just and equitable” to make the proposed order within subsec (4);
(c)whether it is “otherwise proper” to make the order within subsec (5).
Conclusions and findings
The mother’s primary submission was that the agreement should be set aside ab initio on the basis that it had been obtained by fraud or undue influence. It was alleged by her counsel in opening, that at the time of entering into the agreement she was suffering from anxiety and depression and felt bullied and pressured by the respondent and continues to feel that way. She says in paragraph 2 of her affidavit:
“I was asked by the respondent to sign the Child Support Agreement. At the time I signed it the relationship had just broken up and I was in a state of duress. I was not aware of my legal entitlement to child support as assessed by the Child Support Agency. I did not realise the procedure required to discharge the Agreement.”
The mother said in her evidence in chief that “I telephoned the Child Support Agency and they sent an agreement and told me to sign it and get the agreement filled out”. She further said that she “suffered very severe anxiety and stress and depression”. She later said that her relationship with the father prior to the break up was “fairly amicable”. She conceded that she obtained the agreement from the Child Support Agency and filled out half of the information, she further conceded that she agreed to the terms and signed it. There was absolutely no evidence that the father attempted to exert any undue influence or that he acted in any way to pressure or bully the mother into signing the agreement. Indeed the evidence was to the contrary, in that it was the mother that initiated the preparation of the agreement and was happy to sign it.
The mother’s alternate claim for a departure from the existing agreement is pursuant to Section 117(2)(c)(i) and (ii) of the CSAA. Counsel for the mother submitted that the mother’s income at the time of signing the agreement was about $18,000 per annum and that it had decreased to about $15,000 per annum at the time of the hearing. In her evidence in chief the mother responded to a question about her income on a yearly basis at the time of signing the agreement by saying that she earned “$18,000.00 per annum”. She further said that she was currently earning “$15,000.00 per annum”. However, she then agreed with the proposition put to her by her counsel, that the figures in her form 17 financial statement indicated a weekly income of $342.00 (which she said was approximately half of $670.00 per fortnight) and that she has a salary increase since completing the form 17 of about $5.00 per week. She later said in cross-examination that if the figure of $342.00 was on the form 17 it was correct as it came from her salary slip.
In all the circumstances I am satisfied the mother’s evidence regarding her current earnings of $342.00 per week plus a small increase of $5.00 per week can be relied upon. That is an income on a yearly basis of $18,044.00. Accordingly I am not satisfied the basis of the mother’s application for departure – that is that there is a decrease in salary – has been established.
The final basis for setting aside the agreement put to me by Counsel for the mother was that there had been a settlement of property. This in fact was not the case. There had been some negotiations about property but the matter is still very much an issue. Indeed when the matter first commenced I stood it down to enable some discussions to take place in the hope that a resolution might be reached. It appeared to me the real reason for seeking to set aside the agreement and conceded by the mother in her evidence, was that she did not want to be “controlled” by the father.
I am further satisfied that both parties entered into this agreement with a view to obtaining other financial benefits for each of them (which included the fact that they were joint proprietors of the property at
51 M Drive, S F (‘the property’)). The Father said that the mothers equity in the property had increased since the signing of the agreement and further that the mother had the benefit of an additional $6,500.00 from the top up mortgage on the property. However, these matters were not expanded on and were not supported by any independent evidence. I am satisfied these parties have entered into the agreement with full knowledge of its terms and conditions and there has been no significant change to either of their circumstances in the intervening time. The legislation makes it clear that parties are entitled to make these private arrangements for the financial support of their children and that such arrangements will be binding. It was not intended that in the event that a party changed his or her mind that they could be released from the burden of the agreement.
In further considering whether any special circumstances exist for departure from the provisions of the agreement I note section 4(3) of the CS(A)A.
In all the circumstances of this case, the applicant has not established that special circumstances exist which require the agreement to be departed from.
Accordingly I dismiss the mother’s application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate:
Date: 25 February 2003
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