Hales and Ballou - [2009] FMCAfam 1299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALES & BALLOU

[2009] FMCAfam 1299

CHILD SUPPORT – Whether applicant has leave to apply for reassessment and departure order more than 18 months after assessment – whether any argument that assessment is wrong.

Child Support (Assessment) Act 1989 (Cth), ss.98S, 111, 112, 117, 118
Federal Magistrates Court Rules 2001 (Cth), r.25A3
Child Support Legislation Amendment (Reform of the Child Support Scheme - new Formula and other Measures) Act 2006 (Cth), s.44

Applicant:

MR HALES

Respondent:

MS BALLOU

File Number:

MLC 84 of 2008

Judgment of:

Phipps FM

Hearing date:

18 May 2009

Date of Last Submission:

18 May 2009

Delivered at:

Melbourne

Delivered on:

10 December 2009

REPRESENTATION

The Applicant appearing in person:

Solicitors for the Respondent:

Carmel M. Prowse

ORDERS

The application filed 9 February 2009 as amended 6 April 2009 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 84 of 2008

MR HALES

Applicant

And

MS BALLOU

Respondent

REASONS FOR JUDGMENT

The applicant pays child support to the respondent for the children [X] and [Y]. They live with the respondent. A third child lives with the applicant in New Zealand.
On 9 February 2009 the applicant filed an application applying under s.111 and s.112 of the Child Support (Assessment) Act 1989 (Cth) for leave to apply for a change of assessment of administrative decisions that are more than 18 months old.
On 6 April 2009 he filed an amended application which includes an application pursuant to s.117 for a departure order “for the period

1 March 2003 to 30 September 2005, based on the actual income, financial resources and liabilities of the applicant at that time, and the applicant’s child support income amount for that period be fixed at an annual rate of AUD$42,101 and the applicant’s adjusted income for that period be fixed at AUD $12,077”.
The child support period ending 30 September 2005 is more than

18 months before the application was filed on 9 February 2009. Therefore the applicant requires leave under ss.111 & 112 before the Registrar can make a determination under s.98S varying the child support income amount before a court can make a departure order under s.118.
When considering whether to grant leave s.112 [4] requires the court to have regard to;
i)Any responsibility and reason for the delay in making the application;
ii)Hardship to the applicant if leave is not granted;
iii)Hardship to the respondent if leave is granted;
iv)Any other relevant matter
Rule 25A3 of the Federal Magistrates Court Rules 2001 (Cth) requires applicants in child support proceedings to file an affidavit setting out the facts and circumstances relied on and the grounds of the application. The applicant has filed several affidavits. The one filed with the original application on 9 February 2009 sets out the grounds for a review as “to take into account my reestablishment costs and my taxable income during that period”.
The reference to reestablishment costs is a reference to the current s.44. The Child Support Legislation Amendment (Reform of the Child Support Scheme - new Formula and other Measures) Act 2006 (Cth) substituted this section for the previous section. It permits additional income earned in the three years after separation to be disregarded in some circumstances. This provision came into operation on 1 July 2008 and so does not apply to the period for which the husband seeks a reassessment. The application on this ground is misconceived.
The applicant does not show hardship because he does not show that the assessment of his child support income for the period 1 March 2003 to 30 September 2005 is incorrect. Nor does he give a satisfactory explanation for the delay.
The parties separated in January 2003. At the time he was employed at [omitted]. Child support assessment commenced on 31 March 2003. On 24 September 2004 the wife applied for a reassessment. That was done by decision dated 11 November 2004.
The husband objected to the decision. That objection was allowed on

1 March 2004 and the application for change was returned for a further conference. The objection decision said that the husband would be provided with the opportunity to respond in full to the application for change and to provide evidence in support of his claims. The result was a Notice of Decision on 5 May 2005 which states for the period

9 November 2004 until 30 September 2005 the child support income of the husband was set at $39,949.
The husband made an application for change of assessment on

22 March 2006. This was for the period 1 February 2006 to 31 January 2007. In the application he disputed his income from 31 March 2003. This required the senior Case Officer to investigate his income, earning capacity, property and financial resources.
The Notice of Decision is dated 28 August 2006. It states the husband was assessed as follows;
i)For the period 31 March 2003 to 2 July 2003 based upon his 2002 taxable income of $132,556;
ii)For the period 3 July 2003 until 30 June 2004 on the husbands estimated income of $48,379;
iii)For the period 1 July 2004 to 8 November 2004 on the husbands 2004 overseas income of $16,707;
iv)For the period 9 November 2004 until 30 September 2004 based upon a child support income of $39,949 as set by a previous Notice of Decision.
The Notice of Decision makes these findings;
i)For the period 19 March 2003 until 22 August 2003 the husband earned a total income (for 26 weeks) of $54,691.28 or an annualized amount of $109,092.56. For the period 31 March 2003 until 2 July 2003 the husband was over assessed. From 3 July 2003 until 2 September 2004 he was under assessed;
ii)From 1 September 2003 until 31 March 2004 the husband was employed in New Zealand. His income was $16,717 which equates to an annualized income of $28,658. He was over assessed during this period;
iii)From 1 April 2004 till 31 March 2005 the husband earned an income of $46,096. He was slightly over assessed from 1 April 2004 to 30 June 2004. From 1 July 2004 until 8 November 2004 he was significantly under assessed.
The senior case office says in her decision that she considered it fair that the husband be assessed upon his actual annualized income amounts for the period 31 March 2003 until the commencement of the current assessment. However when considering whether it was fair to change the assessment she said that given the findings she did intend to make the following changes;
i)For the period 31 March 2003 until 2 September 2003 the husband be assessed upon his annual income of $109,392;
ii)For the period of 3 September 2003 until 31 March 2004 the husband be assessed upon his annualized income of $28,658;
iii)For the period 1 April 2004 until 30 September 2005 the husband be assessed upon his 2005 taxable income of $46,086.
However, the senior case officer found that that would have increased the husband’s arrears by at least $2,000 if the changes were made and she did not consider that fair. She then considered the husband’s claims for costs of contact and for this reason reduced the child support income amount of the husband by $2,200 for the period 1 February 2006 to 31 January 2007.
Therefore the notice of decision has considered the husbands actual income for the period 31 March 2003 until 30 September 2005.
The husband’s affidavits refer to various assessments and his income at various times. He refers to costs he has incurred such as legal costs, travel costs and other expenses which he says he has paid. He gives much detail about difficulties he says he has had in having contact with his children. He contests statements in the wife’s Financial Statement. None of it seeks to show that the contents of the Notice of Decision of 26 August 2006 are wrong. Indeed, the material the husband includes about his income shows that the notice of decision is correct in its assessment of his income.
The husband applies for either a reassessment by the Registrar or for the Court to hear a departure application. The Notice of Decision of

26 August 2006 was a reassessment by the Registrar. Nothing the husband puts forward shows that decision was wrong. The husband will suffer no hardship if the application is not granted because there is nothing to gain.
The husband attempts to explain the delay in making the application. He says it was because he wanted to have contact arrangements settled before doing so. The material shows that he has been active in disputing child support assessments. He does not appear to have been inhibited in doing so. He gives no satisfactory explanation for the delay.
There is no basis for permitting the application to dispute child support assessments more than 18 months old.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 7 December 2009