Haden and Haden and Farnsworth - [2003] FMCAfam 320

FEDERAL MAGISTRATE COURT OF AUSTRALIA

HADEN & HADEN & FARNSWORTH

[2003] FMCAfam 320

CHILD SUPPORT – Mother’s application that pursuant to section 66M of the Family Law Act her husband be declared liable to support her child from a previous relationship – parties living together – application brought to have the husband’s child support liability for his children of a former relationship reduced – application refused.

Applicant:

MS HADEN

Respondent:

MR HADEN

Intervener:

MS FARNSWORTH

File No:

CAM 2996 of 2001

Delivered on:

8 August 2003

Delivered at:

Canberra

Hearing date:

30 May 2002

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant and the Respondent:

Mr Farrar

Solicitors for the Applicant and the Respondent:

Farrar Gesini & Dunn, Solicitors

Counsel for the Intervener:

Mr Brzostowski

Solicitors for the Intervener:

Hill & Rummery, Solicitors

ORDERS

That the application of Ms Haden filed 4 March 2002 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Haden & Haden & Farnsworth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM2996 of 2001

MS HADEN

Applicant

And

MR HADEN

Respondent

And

MS FARNSWORTH

Intervener

REASONS FOR JUDGMENT

Introduction

This matter involves an application by Ms Haden for an order that “pursuant to s.66M of the Family Law Act it is declared that it is proper for Mr Haden to have a duty to maintain his step child, T born in November 1989 and that such situation has been in effect since 1 May 2001.” That application was filed on 4 March 2002. It further indicated that, in effect, the purpose of the application was to reduce the liability of Mr Haden to pay child support for his two children from a former relationship.
Mr Haden lived in a de facto marital relationship with Ms Farnsworth from 1987 to 1998. There are two children of that relationship, M born in March 1989 and J born in August 1992. Those children reside with Ms Farnsworth. Mr Haden has been assessed as liable to pay $659 a month child support for these two children.
Ms Haden was previously married to Mr N. She has one child of this marriage, the child T the subject of her application.
Mr and Ms Haden commenced to live together in about April 2001 and married on 5 December 2001. I note that it was only upon this marriage that Mr Haden became T’s step-father. See the definition of step-parent in section 60D(1). The application that Mr Haden’s duty to support T be, in effect, backdated to May 2001 sought an order beyond the Court’s power.
On 11 September 2001 Mr Haden and Ms Haden filed a joint application seeking orders in relation to T. The respondent to this application was Mr N. The application was for the following orders:
(a)That the child change her name to T;
(b)That Mr Haden and the mother have the responsibility for the day to day care, welfare and development of the said child;
(c)That the father have reasonable contact with the said child.
An affidavit filed in support of the application indicated that Mr N was ill and suffering from a malignant melanoma. Apparently his prognosis at the time was poor. He was apparently unable to work and no child support was being received from him for T.
This application came before the Court on 15 October 2001. There was no appearance on behalf of Mr N and orders were made on an undefended basis that Mr and Ms Haden have the responsibility for the day to day care, welfare and development of T. Orders were further made that the applicants were at liberty to take steps to have the child known as T and to take all steps necessary to have the birth certificate in relation to the child altered accordingly. The orders provided that as they had been made in the absence of Mr N he was at liberty to have the matter relisted to seek to vary or set aside those orders. No request to this effect was ever made by Mr N.

Discussion

It should be noted that the application by Ms Haden in the present case does not involve an application that Mr Haden pay any specific amount for child maintenance with respect to T. Mr and Ms Haden are still living together. I agree with the approach taken in this respect. In my view it would have been inappropriate to go through the charade of seeking a specific sum by the way of maintenance. The purpose of the application, and as I have indicated this was made very clear from the application itself, was to obtain a situation where Mr Haden's liability to pay child support for M and J would be reduced and more money become available to apply towards the support of T. The child support payable for M and J would be affected because T would become a relevant dependant child of Mr Haden pursuant to section 5 of the Child Support (Assessment) Act. That section defines relevant dependant child as including a step-child provided there is an order in force under section 66M of the Family Law Act in relation to the parent and the step-child.
Ms Farnsworth was invited to become a party to the litigation and on 13 March 2002 an order was made joining her as a party. She opposed the making of the declaration sought by Ms Haden. She was the only contradictor.
I will now turn to what I consider to be the sections of the Family Law Act germane to this case.
Section 4(1) provides that a child maintenance order has the meaning given by subsection 64B(5) and that a parenting order has a meaning given by subsection 64B(1).
Section 64B(1) states that a parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection 2, or
(b)an order under this Part discharging, varying, suspending or reviving an order or part of an order described in paragraph (a).
Section 64B(2) provides as follows:
A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c)maintenance of a child;
(d)any other aspect of parental responsibility for a child.
Section 64B(5) is as follows:
To the extent (if at all) that a parenting order deals with a matter mentioned in paragraph (2)(c) the order is a child maintenance order.
Section 66A is contained in Division 7 of Part VII. That Division is headed “Child maintenance orders.” It provides as follows:
This Division:
(a)contains statements of objects and principles relevant to making of child maintenance orders, and
(b)deals with the relationship between this Division and the Child Support (Assessment) Act 1989, and
(c)deals with applying for and making child maintenance orders, and
(d)deals with other aspects of courts’ powers in relation to child maintenance orders, and
(da) deals with varying the maintenance of certain children, and
(e)deals with when child maintenance orders stop being in force.
Section 66B sets out the objects of the Division. It provides as follows:
66B(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents;
66B(2)Particular objects of this Division include ensuring:
(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.
Section 66C(1) states that:
The parents of a child have, subject to this Division, the primary duty to maintain the child.
Section 66D(1) provides that:
The step-parent of a child has, subject to this Division, the duty of maintaining a child if and only if a court by order under section 66M determines that it is proper for the step-parent to have that duty.
Section 66D(2) is to the following effect:
Any duty of a step-parent to maintain a step-child,
(a)is a secondary duty subject to the primary duty of the parents of the child to maintain the child, and
(b)does not derogate from the primary duty of the parents to maintain the child.
Section 66G provides that:
In proceedings for a child maintenance order the court may, subject to this Division, make such child maintenance order as it thinks proper.
Section 66H states as follows:
In proceedings for the making of a child maintenance order in relation to a child the court must:
(a)consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J) and
(b)determine the financial contribution or respective financial contributions towards the financial support necessary for the maintenance of the child that should be made by a party or by parties to the proceedings (this is expanded on in section 66K).
Section 66M is as follows
66M(1) As stated in section 66D a step-parent of a child has a duty of maintaining a child if and only if there is an order in force under this section.
66M(2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.
66M(3) In making an order under subsection (2) the court must have regard to these (and no other) matters:
(a)The matters referred to in sections 60F (this is not relevant in the present case), 66B and 66C; and
(b)the length and circumstances of a marriage to the relevant parent and the child; and
(c)the relationship that existed between the step parent and the child; and
(d) the arrangements that have existed for the maintenance of the child, and
(e)any special circumstances which if not taken into account in the particular case would result in an injustice or undue hardship to any person.
Section 66N states:
In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child the court must take into account:
(a)the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and
(b)the extent to which the primary duty of the parents to maintain the child is being and can be fulfilled.
I decide this case primarily on the basis that had Mr and Ms Haden had separated and Ms Haden filed an opposed application seeking that Mr Haden pay child maintenance for T. I would not have made an order under section 66M even if it did not impact on Mr Haden’s liability under the Child Support (Assessment) Act. T was born in 1989. Mr Haden joined the family in April 2001 and did not marry T’s mother until December of that year. At the date Ms Haden filed her application in this case Mr Haden had therefore only been living in the same household as T for less than a year. In any event it is the length of the marriage, not the relationship, that is relevant under section 66M(3) and at the time the application was filed Mr Haden had been married to T’s mother for only three months. In these circumstances I would not have considered it appropriate to make an order for step-parent maintenance. Of course the lamentable delay in handing down this judgment has meant that more time has elapsed between the date of the marriage and the consideration of matters under section 66M(3). However it is still a short marriage, less than two years, and were this a contested application for child maintenance my decision would have been the same.
I do not believe that the Orders made on 15 October 2001 are relevant to the determination of this case. The only matters I am to take into account are those set out in section 66M(3). The existence of such orders is not a matter covered by that subsection.
I believe I should approach this case on the same basis as if it were a defended child maintenance application. It does not seem to me to be appropriate, given the implications involved in this case in making an order under section 66M, to make an order which would not have been made had it been opposed by the step-father simply on the basis that it is not opposed by him.
I take into account paragraph (e) of section 66M(3). In my opinion Mr Haden's voluntary assuming the responsibility for maintaining T and having orders made such that it impacts on his primary duty to maintain M and J would result in injustice and undue hardship to Ms Farnsworth. The child support payable of $659 a month equates to about $76 per child per week. On the basis of published research concerning the cost of raising children I conclude that this would be less than half the total cost of maintaining each of these children. Ms Farnsworth earns a modest income. Any reduction in child support will have a significant impact.
Furthermore I doubt that it is possible to make a declaration as sought by Ms Haden without it being linked to an application for a child maintenance order. Part VII of the Family Law Act is essentially concerned with parenting orders. Section 64B(5) provides that when a parenting order is made in relation to child maintenance it is a child maintenance order. Section 66H I believe makes it clear that making a child maintenance order involves determining the precise financial contribution that a parent or step-parent should make for the maintenance of a child. It is implicit in this that the power of the Court is limited to the making of a specific order for a specific sum of money. This is also reflected in section 66N. Section 66M is in effect the gateway to an order being made pursuant to section 66G. It is not a “stand alone” section.
There appears to be a fundamental inconsistency between the provisions of the Family Law Act (as I read them) and the Child Support (Assessment) Act. The Family Law Act, as I have indicated, envisages a section 66M application as a forerunner to the making of an order for child maintenance. It is not surprising that the provisions of the Act lead to this conclusion. There are indications in the headings that this is what was intended. Division 7 of Part VII of the Act was enacted against a backdrop of orders in the past having being made in litigation between separated parties in which orders for a specific amount of child maintenance was sought. Indeed the heading of Division 7 is “Child maintenance orders.” and Subdivision D in which section 66M is found is headed “Applying for and making child maintenance orders.” Section 66A which explains what the Division does refers to “child maintenance orders.” It seems clear to me that the legislature intended the Act to be read in the context I have read it. On the other hand it appears that when the legislature came to enact the Child Support ( Assessment) Act it did not read the Family Law Act in this way. This is because of the definition of “relevant dependant child” contained in section 5. That section provides as follows:
Relevant dependant child, in relation to a liable parent, means a child or step-child of the parent, but only if:
(a)the parent:
(i)is the sole or principal provider of ongoing daily care for the child or step-child; or
(ii)has major contact with the child or step-child; and
(b)the child or step-child is under 18 and is not a member of a couple; and
(c)in the case of a step-child;
(i)an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step child; or
(ii) (the balance of the definition is not relevant)
This definition and the rationale behind it are difficult to understand. It is apparent that it envisages an order under section 66M being made without a child maintenance order also being made. Given what is in paragraph (a)(i) it does not seem to envisage the parent and step-parent of the dependant child living together. If it were otherwise then there would be no issue of major contact and in most cases, of which this is one, the step-parent would not be the sole or principal provider of ongoing daily care for the step-child. Those duties would normally be shared by the parent and step-parent. It seems to envisage a situation where the step-parent and the parent have separated (or where the parent has died) and the child remains with the step-parent or the step-parent exercises major contact. In the former situation there could be no question of there being an order for child maintenance. In the latter situation there could be some anomalous outcomes. A respondent to an application for step-child maintenance might have his liability to pay that maintenance reduced by reason of his having major contact and then get a double benefit in that his child support assessment for his own children would also reduce.
This would appear to be an example of one Act incorporating provisions of another Act where the purpose of the latter Act is not identical with the purpose of the former Act. It would be preferable if the Child Support (Assessment) Act had contained a stand alone provision making it clear what the test is to determine if a step-child should be taken into account when applying the formula to a liable parent who is also a step-parent. However I do not propose to construe the provisions of the Family Law Act which appear clear to me in a way designed to achieve some symmetry between that Act and the Child Support (Assessment) Act.

Conclusion

For the foregoing reasons I refuse to make the orders sought by Ms Haden.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: 8 August 2003