Hampton and Temple

[2012] FamCA 681

FAMILY COURT OF AUSTRALIA

HAMPTON & TEMPLE [2012] FamCA 681

FAMILY LAW – MAINTENANCE – Child Bearing Expenses- application by mother for a lump sum payment - father ordered to pay mother a lump sum amount

Family Law Act 1975 (Cth) ss 67B, 67C(1),(2) and (3)

APPLICANT: Ms Hampton

RESPONDENT: Mr Temple

FILE NUMBER: LNC 166 of 2012

DATE DELIVERED: 16 July 2012

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 16 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The father pay to the mother the sum of three thousand two hundred dollars ($3,200) within twenty eight (28) days of the date of this order by way of child bearing expenses arising out of the birth of the child T born March 2011.

2. All outstanding applications be dismissed.

3. This matter be removed from the list of cases requiring determination.

   IT IS DIRECTED

4. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hampton & Temple has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: LNC 166 of 2012

Ms Hampton

Applicant

And

Mr Temple

Respondent

REASONS FOR JUDGMENT

1. This is an application before me by Ms Hampton (“the mother”), seeking the sum of $19,847, being the maintenance expenses of the mother as a consequence of the birth of T in March 2011 (“the child”).  That application is opposed by the father, Mr Temple, (“the father”) who says he should pay no money towards the cost of the mother’s child-bearing expenses.

2. There seems to be no issue that the child is a child of the parties, and the questions are, firstly, the period of time that the expenses to which the mother seeks should relate; secondly, the amount; and, finally, how that amount ought to be paid, if an amount is determined.  The mother made it clear at the start that she is seeking maintenance for the period from four months prior to the birth of the child to the date of birth of the child.  The father says that the period, if at all, should be limited to a two‑month period as he raises issues in respect of the mother’s employment and he says it should be for a shorter period.

3. The mother, in her evidence, indicated she does not seek medical expenses, but seeks, in essence, an amount to reimburse her for her loss of income over that period of time.  The mother relied upon her application filed on 23 March 2012, an affidavit in support filed the same date, and a financial statement prepared by her filed the same date.  She also gave some oral evidence and was cross‑examined by the father.  The father relied upon his response filed 29 May 2012 and his financial statement filed 11 May 2012.  He gave oral evidence and was cross-examined in relation to that evidence.

4. The relevant law for child-bearing expenses is set out under s 67B of the Family Law Act 1975 (Cth) (“the Family Law Act”).  It provides:-

   The father of a child who is not married to the child’s mother is, subject to this division, liable to make proper contribution towards:

   (a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child, and

   (b) the mother’s reasonable medical expenses –

5. Sub paragraphs (c) and (d) are not relevant.

6. The matters to be taken into account in proceedings in this section are set out in section 67C(1), (2) and (3), which provide:-

   (1)In proceedings under this Subdivision in relation to the birth of a child, the court must, in determining the contribution that should be made by the father of the child, take into account the following matters only:

   (a)the income, earning capacity, property and financial resources of the mother and the father of the child;

   (b)commitments of each of those persons that are necessary to enable the person to support:

   (i)         himself or herself; or

   (ii)         any other child or another person that the person has a duty             to maintain;

   (c)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   (2)In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income.

   (3)In taking into account the income, earning capacity, property and financial resources of the mother, the court must disregard any entitlement of the mother to an income tested pension, allowance or benefit.

7. I have to have regard to the income-earning capacity, property and financial resources of the mother, the father and the commitments of each of those parties to support others.  There is no doubt that the mother has the commitment to support the child, the subject of these proceedings, and the father has a commitment to support the subject child and his other children who are referred to in the material.

8. There is an issue as to whether the father has a capacity to derive a greater income by way of overtime and the Court is directed to disregard the mother’s entitlement to any pension or entitlement to an income-tested allowance or benefit.  The Court may make an order for lump sum payment or periodic payment.  Clearly, in this case, it will be a lump sum, although the question as to how it will be paid will need to be determined.

9. There is enormous animosity between the parties, which was apparent in the conduct of the proceedings, and that, frankly, is sad for the child, having regard to two parents who are at such high levels of conflict.  However, that is not a matter for me to determine.

10. The first question I need to turn my mind to is the childbirth maintenance period. Section 4(1) of the Family Law Act defines “childbirth maintenance period” as:-

    in relation to the birth of a child means the period that beings on the day mentioned in paragraph (a) or (b) and ends three months after the child’s birth.

11. In this case, the child maintenance period sought by the mother is limited to the period up to the child’s birth.  The question is whether it is a period defined under subsection (a), that is, from the time the mother sought work in paid employment after the pregnancy, or (b) two months before the child was due to be born.  In this case, there is no issue that the mother was in paid employment until November 2010.  Whether that employment was full time or casual is irrelevant, but there was no issue in relation to whether the mother was earning income at that time.  There was a question as to whether it was a short-term or a long-term contract.  On balance, I accept the evidence of the mother.  So I am satisfied that at the relevant period she worked in paid employment.

12. The next question is whether the mother was advised by a medical practitioner to stop working for medical reasons related to her pregnancy and stopped working after she had been advised more than two months before the child was due to be born.  The evidence of the mother was that she became very sick, went to hospital, and on the advice of a doctor from that hospital, ceased employment.  Normally, one would have expected a letter or a report from the doctor to be available.  However, the mother has said she made inquiries of the hospital and that material was not available.

13. The father, and quite properly, acknowledged that he did not know whether the mother was advised to give up work or not and that his communication with the mother at that time was, to say the least, somewhat strained.  I am satisfied that the mother was advised by a medical practitioner to stop work for medical reasons and the period ought to be for a period of four months from November 2010 until March 2011, which I note is a period of about 16 weeks.

14. The next question, of course, is the needs of the mother.  In her material, it is clear that the mother was not in paid employment from November 2010 until at least a period shortly after the birth of the child, and that is the relevant period which I must have regard to.  The mother now receives a parenting payment and a carer’s allowance, plus the sum of about $100 per week child support from the father.  There is an issue as to whether it has been paid in full or paid in part.  I have had little regard to that on the basis that the father is in good employment.  If he has not paid the full amount of child support, as night follows day, the Child Support Agency will follow him and find that money.  So if he has not paid it now, he will be paying it later with interest.

15. The mother has no significant property apart from money she says that the father owes her and her household contents.  She describes her expenses at the present time as about $507 per week, and I will take it that that was roughly her expenses over the childbirth maintenance period.  It is clear that she has a need for this amount of money.  The next question is, of course, the father’s ability to pay that, which is, I sense, the primary issue before the Court and which has caused this matter to need a hearing.

16. The father earns an income, on his own evidence, of about $98,000 per year.  Out of that income, he asserts that he spends the whole of that sum in his personal expenditure.  There are some sums, of course, which the father has no choice but to pay.  Those are, of course, questions of his 9 per cent superannuation levy, his income tax; his mortgage repayments of about $445 per week, which I have regard to, noting that he has a child living with him; council rates and other expenses associated with that.

17. There is an issue as to his car insurance, although not house and contents, although there was no division of the three of those.  The father has private health insurance, and he tells the Court that he has some heart difficulties and spends about $25 per week on medication.  The father entered into an agreement under Part IX of the Bankruptcy Act 1966 (Cth) to repay some debts. That agreement will run for a period of six years and involves the father in paying $275 per fortnight. He has other expenses in terms of child support for B and the care of his son who lives with him.

18. He sets out in his financial statement expenses and says that they total some $373 per week.  He was criticised in relation to some of these expenses, in particular, medicine, being the chemist and pharmaceutical, and it is clear that there may have been an error in relation to that, and the amount he spends a week on the children, of $40, I think it is.  I am satisfied, having regard to all of those sums, that the father has a capacity to pay, but not at a rate sought by the mother.  I am satisfied that he had the capacity over that four‑month period to which the mother alluded.

19. The father has a strong income-earning capacity.  He has limited financial resources.  He has an equity in a home, but it is a modest equity and one to which he is unlikely to have access to it unless the home was sold.  There was an issue about a motor vehicle, and a number of other motor vehicles, and I am satisfied that there are probably motor vehicles of very modest amounts available to the father, but the extent of those I do not know.

20. He has a commitment to support himself and a commitment to support his three children.  I am satisfied that over that period of time he would have had a capacity to pay at least $100 per week, as that is what he is paying for the child at the moment, and probably more.  I am satisfied that he would have had the capacity to pay about $200 per week.  Finally, I need to determine whether the father should pay this by instalments or pay it immediately by way of a lump sum.  It seems to me that the father has the capacity to liquidate assets to pay that sum without reasonable delay.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 July 2012.

Associate:     

Date:              16 July 2012