Ibsen and Harrison Ibsen
[2014] FCCA 51
•20 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IBSEN & HARRISON IBSEN | [2014] FCCA 51 |
| Catchwords: CHILD MAINTENANCE – Overseas maintenance liability – Order made in [W] USA in 2001 – father seeking to have the order either discharged or varied, with a view to avoiding payment of arrears which stand at over $122,000.00 and having his child support for the one child still under 18 set at a level commensurate with his income – mother opposing an order which would do away with the arrears and seeking a greater level of ongoing child support than the father proposes. |
| Legislation: Child Support (Registration & Collection) Act, ss.4, 18A, Schedule 2 |
| Ibsen & Harrison Ibsen [2012] FMCAfam 1037 |
| Applicant: | MR IBSEN |
| Respondent: | MS HARRISON IBSEN |
| File Number: | NCC 649 of 2011 |
| Judgment of: | Judge Terry |
| Hearing date: | 25 July 2013 |
| Date of Last Submission: | 25 July 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 20 January 2014 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor Advocate for the Respondent: | Mr Fox |
| Solicitors for the Respondent: | Attwaters |
ORDERS
Pursuant to Regulation 36 of the Family Law Regulations and s.66S of the Family Law Act the order made by the Superior Court of [W] for [K] County USA on 20 December 2001 is varied to provide that:
(a)In lieu of the order that the father pay the mother $USD1,500.00 per month for the support of the children [W] born [in] 1987, [X] born [in] 1988, [Y] born [in] 1993 and [Z] born [in] 1996 commencing in June 2001 the father pay the mother an amount totalling the actual amount paid by the father pursuant to the order up to and including 20 January 2014.
(b)In addition the father pay to the mother for the support of [Z] $125.00 per week commencing on 21 January 2014 and concluding when the child turns 18.
All applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ibsen & Harrison Ibsen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 649 of 2011
| MR IBSEN |
Applicant
And
| MS HARRISON IBSEN |
Respondent
Introduction
On 20 December 2001 an order was made by consent in the Superior Court of [W] USA requiring the father, who was living in Australia, to pay $USD1,500.00 per month child support for his four children who were living with their mother in the United States.
The father paid the full amount for the first few months but after that he paid less than was required and in March 2006 he stopped paying altogether.
The mother sought assistance to enforce the order and in 2008 the State of [W] Division of Child Support asked the Child Support Agency in Australia to collect from the father arrears of $AUD122,994.30 and monthly child support of $AUD1, 817.10.
The father attempted to negotiate a settlement and as a result some adjustments were made to the amounts claimed but the father remained dissatisfied and in March 2011, after the Child Support Agency announced that they intended to begin garnisheeing his wages, he commenced proceedings in this court.
The father believes that the arrears should be done away with altogether and his current rate of child support set at a level commensurate with his income and the orders he sought at the hearing on 25 July 2013 were as follows:
i)The registered overseas maintenance liability currently administered by the Child Support Registrar be discharged.
ii)A new order [be made] directing Mr Ibsen to pay $AUD125.00 child support to Ms Harrison Ibsen on a weekly basis until [date omitted] 2014 when [Z] is eighteen years of age.
The orders sought by the mother were that the father pay child support of $AUD1,090.26 per month or $251.60 per week for [Z] and that his application be otherwise dismissed.
At the very least the mother submitted that:
The amount that the court should order for maintenance for each child and for the whole of the period since the applicant began to fall into arrears of the [W] orders would be not less than $150.00 per child per week.
Documents relied on
The father relied on his amended initiating application filed on 1 June 2011, his affidavits filed on 14 March 2011, 1 June 2011, 18 January 2013, 21 February 2013 and 26 April 2013 and his Financial Statement filed on 18 January 2013.
The father attached a completed Financial Statement for each financial year from 2002 onwards to his 26 April 2013 affidavit.
The father also asked me to read his written submissions dated 13 April 2012 and his Outline of Case document filed on 21 February 2013. I have read those documents but note that nothing in them has the status of evidence.
The mother relied on her response filed on 14 October 2011 and on her two affidavits sworn on 19 February 2013 and 10 July 2013 respectively and filed on 12 July 2013.
The mother’s solicitor handed up written submissions and asked me to have regard to a chronology and a schedule of the mother’s gross income between 2001 and 2011 which he had prepared. I received the chronology and the schedule without objection from the father on the basis that they would be treated as aide memoires.
The father was present at court for the hearing on 25 July 2013 but the mother was not, nor was any application made for her to attend by video link or telephone. The father and the mother’s solicitor agreed to the hearing proceeding on the basis that they would each make submissions and that there would be no cross-examination. The father had little choice but to consent to this course of action.
This was not the only example of the mother being far from a model litigant. She took six months to file a response after the father’s original application was served on her, she has never complied with an order that she file a Financial Statement, she initially provided (attached to an affidavit of her solicitor) copies of the tax returns the father trying to obtain for years which were only partially legible and she did not comply with orders to file documents for the hearing listed on 25 February 2013 and sought an adjournment of the hearing.
The mother also failed to comply with the filing directions for the hearing on 25 July 2013, but rather than have the matter further delayed she was permitted to rely on two very late filed affidavits.
The financial information the mother provided for the hearing was very unhelpfully presented. Her solicitor did not undertake the task of converting the mother’s income to Australian dollars (or the father’s to US dollars) so that the incomes of the parties could be compared, and he prepared a table comparing the parties’ incomes which failed to deal not only with the currency conversion issue but with the problem created by the fact that the taxation year is different in the USA and Australia.
Background
The father and mother ccommenced cohabitation in February 1986, married on [omitted] 1986 and separated in 2001. There are four children of the marriage: [W], born [in] 1987, [X] born [in] 1988, [Y], born [in] 1993 and [Z], born [in] 1996.
The father is from Australia and the mother from the USA. Between February 1986 and March 1989 the parties lived in Australia and from March 1989 until separation they lived in the USA.
Upon separation the father returned to Australia and he has lived continuously in Australia ever since.
The mother remained in the USA and has lived continuously in the USA ever since.
The children all lived with the mother until they turned 18 save that between January or February 2003 and August 2004 [X] lived with the father in Australia.
[W] turned 18 in [omitted] 2005, [X] in [omitted] 2006 and [Y] in [omitted] 2011. The only child now aged under 18 is [Z] who turned 17 in [omitted] 2013.
The father has always maintained a relationship with the children. [W] and [X] now reside in Australia, [Y] spent a year in Australia after finishing high school and [Z] has visited the father in Australia.
The [W] order
On 20 December 2001 orders were made by consent by the Superior Court of [W] for [K] County USA concerning property, spousal maintenance and child support.
The child support order required the father to pay the mother $USD1,500.00 per month. It provided that the child support was to be paid “Until the child(ren) reach(es) the age of 18 or as long as the child(ren) remain(s) enrolled in high school whichever occurs last….” However it did not apportion the amount of $1,500.00 between the children.
The amount the father was required to pay was calculated using a document called a child support worksheet which was attached to the order and into which was inserted information about the income of both parties and the costs associated with the children. The child support the father was required to pay was arrived at by a process of arithmetic.
The order provided a mechanism for a yearly review of the child support amount. It required each parent to provide the other with taxation returns and other financial documents by May 1 each year and provided that the child support could then be adjusted in accordance with the Schedule. It provided that if the parties could not agree on a revised amount they could bring the matter back to court but if neither party requested a review by June 1 in any year no review was to take place.
The father alleged that between 2002 and 2008 he continually requested an exchange of tax returns so that the child support could be recalculated but the mother ignored him. He made this allegation in his affidavit filed on 14 March 2011 and in his affidavit filed on 21 February 2013 and the mother has never disputed it. I accept the father’s evidence in this regard.
Notwithstanding the mother’s failure to provided the information the father (perhaps not unsurprisingly as he had returned to Australia) did not seek to bring the matter back to court in [W] and no reconsideration of the child support amount ever took place.
Until March 2006 the father paid child support each month, although apart from a handful of occasions early on he never paid the full amount required.
The table below sets out the amounts the father was required to pay and the amount he actually paid from June 2001, when the operation of the orders commenced as provided for in the orders and March 2006 when payments ceased:
Calendar Year Amount USD Due pursuant to the 2001 order USD Amount Paid USD Amount Paid AUD 2001 10,500.00 6,041.00 14,931.00 2002 18,000.00 15,100.00 28,000.00 2003 13,875.00 because [X] was with the father in Australia for 11 months and the mother agreed after the enforcement commenced that there should be a pro-rata reduction for this period 7,853.00 12,300.00 2004 15,375.00 because [X] was with the father in Australia for 7 months 10,644.00 13,450.00 2005 Either 18,000.00 or 14,625.00 if 9 months of child support for one child is deducted because [W] turned 18 in [omitted] 11,962.00 15,800.00 Jan-Mar
20062,250.00 at most – [X] turned 18 in [omitted] 2006 1,800.00 1,338.00 Total $USD78,000.00 or $USD74,625.00 $USD$53,400.00 $AUD85,819.00
The figures in the second column are my own and take account as best I can of the fact that in 2003/4 [X] lived in Australia for 18 months and [W] turned 18 in March 2005.
The figures in the third and fourth columns are taken from Annexure A to the father’s 18 January 2013 affidavit in which he meticulously set out the payments he says he made and the exchange rate applicable each month.
There is a difference between the information in Annexure A and information in last annexure to father’s 14 March 2011 affidavit, which is a history of child support payments obtained by the father pursuant to a Freedom of Information request. However the mother’s solicitor did not seek to cross-examine the father and challenge the accuracy of Annexure A and there is a limit to what I can do to sort out the tangled web the parties now present to the court.
The father said that his business failed in March 2006 and this evidence was not challenged.
The mother said, and I am prepared to accept, that between 2006 and 2007 she took advice about enforcement. In 2008 she sought the assistance of the State of [W] Division of Child Support and it referred the matter to the Child Support Agency in Australia.
On 5 September 2008 the father received a letter from the Child Support Agency advising him that he owed $AUD125,647.20 arrears of child support and was required to make ongoing payments of $AUD1,817.10 per month. The exchange rate at the time suggests that the father was being asked the equivalent of $USD1,500.00 per month ongoing child support notwithstanding that only two of the children were still under 18.
The father raised several concerns with the Child Support Agency about the amount they claimed from him.
First, he was suspicious that he had been charged $1,500.00 per month even for the period of 18 months when [X] lived with him in Australia and even after [W] and [X] turned 18.
Second, he said that he had requested on many occasions that the mother provide her taxation returns and other financial information so that the rate of child support could be reviewed and that she had consistently refused to do so. He said that the mother had returned to work at some point after the orders were made while his financial circumstances had declined and he was of the view that a proper examination of the financial documents and a re-calculation of the child support would lead to the conclusion that he had in fact overpaid his child support.
Third, he queried whether the amount he was required to pay was fair given the exchange rate between the US dollar and the Australian dollar from time to time.
In due course the father was advised that the arrears and ongoing child support amount had been reduced but he had to make a Freedom of Information Request to find out why.
The father eventually obtained a copy of a letter dated 23 July 2010 in which the mother requested the State of [W] Division of Child Support to reduce the arrears by $USD46,125.00. The mother said that she agreed to a reduction of $USD375.00 per month (¼ of the total amount) to remove the amount levied for [W] and [X] once they turned 18 and a reduction of $USD375.00 per month (¼ of the total amount otherwise payable for that period) to take account of the fact that [X] had lived with the father for eighteen months in 2003/4.
The mother requested the State of [W] Division of Child Support to collect a monthly amount of $USD900.00 for [Y] and [Z] effective from 1 September 2010, although the Child Support Agency initially seems to have interpreted this as a request that the father pay $USD900.00 per month per child.
The father was not consulted about these adjustments and the mother continued to ignore the father’s complaint that she had not provided up to date financial information.
On 4 February 2011 the Child Support Agency sent the father a letter advising him that it intended to recover arrears of $142,928.23 by garnisheeing his wages at the rate of $50.00 per week. He was informed that his employer would be required to make the first deduction on 7 February 2011 and the last on 29 November 2065, which may indicate that someone within the Child Support Agency has a sense of humour because the father will, if he live so long, be 113 in 2065.
The father was also requested to pay periodic child support of $250.74 per week for each of the two children who were then still under the age of 18.
On 14 March 2011 the father filed an application in this court and on 23 May 2011 an order was made that the Child Support Agency be restrained from collecting more than $100.00 per week from the father.
On 14 October 2011 the mother filed a response in which she sought the dismissal of the father’s application
including because the respondent does not admit the jurisdiction of the court
On 13 April 2012 I heard argument about whether the father’s application should be dismissed at a preliminary stage, either on the basis that this court did not have jurisdiction to hear and determine it or on the basis that this court was a clearly inappropriate forum to determine the dispute.
The argument that this court did not have jurisdiction had no merit but I gave careful consideration to the mother’s argument that this court was a clearly inappropriate forum to determine the dispute.
There was some attraction in the mother’s argument that issues to do with variation of the child support should be determined by the Superior Court of [K] County in [W] but on 28 September 2012 I dismissed the mother’s application and part of my reason for doing so was as follows:
……the mother made it clear that if the matter was heard in [W] she intended if she could to rely on provisions in the 2001 order to prevent the father obtaining a reconsideration of the child support for any year prior to 2012.
It would be unjust to deny the father an opportunity to argue that the rate of child support for earlier years should be varied in circumstances where there is some reason to believe that the mother was unco-operative in the past in providing taxation returns to allow a yearly review to take place, and I say this because the mother’s solicitor did not dispute in his affidavit the father’s claim that he had requested these documents in vain.
It would also be unjust to shut the father out of a say about the rate of child support for all years prior to 2012 in circumstances where the mother has apparently arbitrarily taken it upon herself to increase the rate of child support for the children then under 18 from 2010 onwards and has requested the Child Support Agency to enforce this decision.[1]
[1] Ibsen & Harrison Ibsen [2012] FMCAfam 1037
The competing applications for final orders were listed for hearing on 25 February 2013 and it was ordered that each party file any further documents on which they intended to rely by 18 January 2013.
The father complied with the filing directions; the mother did not and on 25 February 2013 she sought an adjournment of the hearing.
I granted the adjournment because although the father had complied with the filing directions it was apparent that he had not filed sufficient material to enable me to properly consider his application to vary the 2001 orders. The matter was relisted for hearing on 15 July 2013 and each party was ordered to file further documents by 26 April 2013.
Once again the father complied with the filing direction but the mother did not. However rather than have the hearing further delayed the mother was permitted, without objection by the father, to rely on two very late filed affidavits.
The applicable law
The United States is a reciprocating jurisdiction pursuant to Schedule 2 of the Child Support (Registration & Collection) Act and pursuant to s.4 and s.18A of that Act the [W] order is a registrable overseas maintenance liability.
R.36 of the Family Law Regulations gives this court the power to discharge, suspend, revive or vary such a liability. It provides as follows:
Party in Australia may apply to vary etc overseas maintenance order, agreement or liability
(1) This regulation applies to:
(a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and
(b) an overseas maintenance entry liability or a registered maintenance liability.
(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be applied to determination of an application is the law in force in Australia under the Act.
The law to be applied in determining an application pursuant to R.36 is contained in the Family Law Act and as the order is still in force s.66S is the applicable section.
S.66S(2)(a) gives the court the power to discharge the order if there is just cause for doing so.
S.66S(2)(d) gives the court the power to vary the order so as to increase or decrease any amount ordered to be paid or in any other way.
S.66S(3)(a) provides that the court must not vary an order so as to increase or decrease the amount payable unless it is satisfied of one of the things set out in that subjection, and the provisions on which the father could potentially rely are s.66(3)(a)(i), (ii) and (iii) which allow the court to increase or decrease the amount payable if it is satisfied:
(a) that since the order was made or last varied:
(i)the circumstances of the child have changed so as to justify the variation; or
(ii)the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii)the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation;
S.66S also contains the following general provisions which are relevant to this application:
(7)An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.
(8)If an order (the subsequent order) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.
(9)If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.
(10) For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).
(11) The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.
S.66B of the Family Law Act contains the objects of the Child Maintenance Division of the Family Law Act and provides that:
(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(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.
The first step the court must take in determining a maintenance application is to make findings about the proper needs of the children and the income, earning capacity, property and financial resources of the children (s.66J).
Pursuant to s.66K it must then determine the contributions which should be made by each parent toward meeting those proper needs and to do that it must take into account the income earning capacity, property and financial resources of each of the parties, the commitments of each of the parties necessary to support themselves or any other child or person the party has a duty to care for, the direct and indirect costs incurred by the parent with whom the child lives in providing care for the child.
Pursuant to s.66K(1)(e) the court must also take into account any special circumstances which if not taken into account would result in injustice or undue hardship for any person.
Whether there is just cause for discharging the [W] order
The father’s first submission was that the child support provisions in the [W] order should be discharged but I am not satisfied that there is just cause for discharging the child support order in its entirety.
The father consented to the order being made. For the first few months he paid the monthly amount in full and after he ceased doing that he still continued to make monthly payments for more than four years. He also paid a small amount in 2010 and the beginning of 2011 and since about June 2011 has been making payments of $100.00 per week.
This is not a case where the order was made without the father’s knowledge or consent, or where the mother sat on her hands and did nothing while arrears accumulated and then attempted to recover a large lump sum long after the need for periodic child support had passed.
The problems in this case are firstly that the mother failed to engage in the process which would have resulted in a yearly review of the amount payable taking place, and secondly that impact of the exchange rate between the currencies has never been taken into account.
A third problem is that it does look as if the mother is still trying to recover the full $1,500.00 USD per month for the period between 2006 and 2010 notwithstanding that for most of that period only two of the children were under 18.
The appropriate way to deal with these problems is not to discharge the order in its entirety but to consider whether the amount ordered to be paid should be varied.
Whether the order should be varied
The amount the father was required to pay in 2001 was calculated using the [W] State Child Support Schedule attached to the order and in that schedule the parties incomes are stated to be $USD3,250.00 per month for the father and $USD1,000.00 per month for the mother.
The father returned to Australia in the second half of 2001 and it is unclear to me where his income figure came from. It translates into a monthly salary of $AUD $6,190.00 or $AUD74,280.00 per annum using (somewhat roughly) the exchange rate at that time, and the father’s evidence, unchallenged at the hearing before me, was that his actual income in the 2001/2 financial year was $AUD34,856.00.
The mother alleged in her 12 July 2013 affidavit that the father was earning $USD96,000.00 prior to separation but this was a bare assertion without foundation. It was not put to the father as there was no cross-examination and I cannot find that this is correct.
The father provided virtually no information about the nature of his employment after he returned to Australia but he certainly commenced work in some capacity in 2001. He said that in July 2003 he obtained a [omitted] licence in Sydney and that his motivation for doing this was [X] coming to live with him in January 2003 and his need to be available to provide care for [X].
In March 2006 father’s business collapsed. I have only the father’s word for this but the mother’s solicitor chose not to cross-examine him and challenge this evidence.
The father is currently employed as a [omitted]. Based on the information in his financial statement filed on 18 January 2013 it appears that he commenced this employment in 2006 or 2007.
In his affidavit filed on 26 April 2013 the father gave figures for his gross average weekly income for the financial years 2001/2 onwards which translate into the following yearly income:
2001/2 34,856.00 2002/3 49,556.00 2003/4 30,940.00 2004/5 30,212.00 2005/6 19,968.00 2006/7 20,488.00 2007/8 62,140.00 2008/9 44,304.00 2009/10 42,796.00 2010/11 47,736.00 2011/12 52,156.00
The father attached to his 1 June 2011 affidavit copies of his Notices of Assessment for the financial years 2002 to 2010 and his taxable income for 2004 and 2005 in those Notices of Assessment is significantly lower than the amounts shown above for those years. I have no idea why this is the case and out of an abundance of caution I have used the higher amounts derived from the summary of earnings in the father’s more recent affidavit.
In her affidavit filed on 12 July 2013 the mother said that she disputed that the father had provided an accurate summary of his earnings but her solicitor declined the opportunity to cross-examine the father. There was nothing to cast doubt on the father’s assertions about his income as contained in his 2013 affidavits save that he may in fact have overstated his income in some years.
The mother gave her occupation as [omitted] but I have no idea what that means. She provided copies of Tax Returns for the years 2002 to 2011 and in Exhibit A her solicitor summarised her gross income from 2002 to 2011 as follows:
2001 9,598.00 2002 10,764.00 2003 56,770.00 2004 38,463.00 2005 47,851.00 2006 37,628.00 2007 43,468.00 2008 38,920.00 2009 18,839.00 2010 52,293.00 2011 73,439.00
These amounts correlate with the information in the Tax Returns. In Exhibit A it is asserted that the mother’s taxable income in 2008, 2009 and 2010 was slightly less than the above figures. It is unclear to me what the basis of this is.
This is all very well but it is impossible without further work for me to compare the parties’ incomes.
First, the mother’s income was given in US dollars and her solicitor made no attempt to calculate what this meant in Australian dollars.
Second, the father’s income is based on a financial year which runs from 1 July to 30 June and the mother’s income (on the face of her taxation returns) on a financial year which runs from 1 January to 31 December.
I must try and compare the incomes however and doing the best I can and using the very rough method of adopting an average exchange rate each year based on the information in Annexure H to the father’s affidavit filed on 1 June 2011 I have converted the mother’s income into Australia dollars:
Mother’ s income USD Mother’s income AUD 2001 9,598.00 18,953.39 2002 10,764.00 19,703.46 2003 56,770.00 88,855.85 2004 38,463.00 52,761.31 2005 47,851.00 63,127.97 2006 37,628.00 49,630.25 2007 43,468.00 52,592.86 2008 38,920.00 45,806.55 2009 18,839.00 22,974.39 2010 52,293.00 63,771.95 2011 73,439.00 89,559.75
I have then roughly calculated a calendar year income for the father based on the table he provided in his 26 April 2013 affidavit and this gives the following result:
Mother’s income AUD Father’s income AUD 2001 18,953.39 NK 2002 19,703.46 42,206.00 2003 88,855.85 40,248.00 2004 52,761.31 30,576.00 2005 63,127.97 25,090.00 2006 49,630.25 20,228.00 2007 52,592.86 41,294.00 2008 45,806.55 53,222.00 2009 22,974.39 43,550.00 2010 63,771.95 45,266.00 2011 89,559.75 49,946.00
In the highlighted years namely in 7 out of the 9 post-separation years the mother’s income exceeded the father’s and in the years between 2003 and 2006 it considerably exceeded the father’s.
This leaves me comfortably satisfied that it is appropriate to consider varying the child support amount in the [W] order and moreover it is consistent with the [W] order that this occur.
How the order should be varied
If an attempt is to be made to recalculate the child support it will have to be done on a year by year basis, because the parties’ incomes varied significantly each year.
The first step in the exercise is to determine the needs of the children, and the mother provided an estimate of the costs of the children year by (calendar) year.
The father raised concerns about the figures the mother provided, pointing out that some amounts were the same year in and year out. The mother did not make herself available for cross-examination so there was no opportunity for the father to question the mother about this issue.
I have some sympathy for the mother, who would have faced an almost impossible task trying to historically work out the children’s costs, but it is important to remember that if the mother had co-operated with the father in reviewing the figures each year as he requested this difficulty would never have arisen.
The mother’s solicitor suggested that I have regard to the published research on the costs of children in other words what used to be called the Lee & Lovering tables, but these tables have not been updated for a very long time.
It is impossible for me now to be satisfied, even very generally, of precise needs of the children each calendar year. I can understand the father’s concern about the mother’s broad brush figures and the best that I am able to say about the costs of the children is that they were very likely substantial each year.
The next step in the exercise is to consider each parties income, earning capacity, property and financial resources and I am again left in a very difficult position because the mother failed to provide complete information about her financial circumstances. All she provided in the main was her gross income from 2001 to 2011 and sheets setting out the alleged monthly costs of the children for each year between 2001 and 2011.
The mother also provided information about the current costs she said were incurred in supporting herself and “the children” (which may include the adult [Y]) but she failed to provide any information at all about her income in 2012 and 2013.[2]
[2] Mother’s affidavit sworn 19 February 2013 filed 12 July 2013
The mother did not provide any information about her property and resources which are matters I am required by s.66K to take into account.
In many maintenance cases the property and resources of a party have no relevance in determining the amount of child maintenance one should pay to the other but I cannot be certain that this is one of those cases when the mother has failed to provide the information.
I acknowledge that the order I made on 25 February 2013 did not specifically require the mother to provide information about her property and resources, but current information about these would have appeared in the mother’s Financial Statement had she complied with the order to file one.
The father made an attempt to set out his financial commitments for the Australian taxation years from 2002 to the present and provided information about his property and resources. This latter establishes that the father does not own and has not since separation owned any property except for some household contents. He has gradually accumulated superannuation and now has about $29,900.00 in total.
Discussion
The mother’s solicitor submitted that I should order that the father pay $150.00 per week child support for each child for the period from 2001 to date. He did not specify whether this was intended to be USD or AUD but I presume that he must have intended it to be AUD, because if it was USD it would amount to child support greatly in excess of that ordered in 2001.
The difficulty with this submission is that it only partially addresses the issues I need to consider. It does not address the issue of how the cost of the children should be apportioned between the parents each year and given that the parents incomes differed markedly over the years I cannot simply apply a blanket rate for the father to pay every year.
The other difficulty is that in some years, such as 2003 and 2004, it would result in the father paying child support in excess of his gross income and in most other years it would result in an unacceptably high proportion of the father’s income being paid in child support.
S.66K(1)(e) allows me to take into account any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to a person and in his written submissions the mother’s solicitor suggested that court should have treat as a special circumstance the fact that the father’s expenses were not as great as the mother’s because his current wife was providing him with accommodation free of charge while the mother had to pay a mortgage and he also drew my attention to the consistently high income earned by the father’s wife over the years.
This is a very cheeky submission for several reasons.
The mother’s solicitor failed to consider s.66K(4) and attempt to explain why the special circumstances of the case required the court to have regard to the income, property and financial resources of a person who had no duty to maintain the children; he made submissions about the father’s circumstances which were not supported by evidence in the case; and the mother conspicuously failed to provide any information about her partner’s income, property or financial resources so that the mother and father were on a level playing field.
It was the father’s case that he had paid enough child support to date, and a table of his child support payments and his income produces the following result:
Father’s income AUD Amount of child support Paid AUD 2001 NK 14,931.00 2002 42,206.00 28,000.00 2003 40,248.00 12,300.00 2004 30,576.00 13,450.00 2005 25,090.00 15,800.00 2006 20,228.00 1,338.00 2007 41,294.00 Nil 2008 53,222.00 1,786.00 2009 43,550.00 5,718.00 2010 45,266.00 2,435.00 2011 49,946.00 8,863.00 104,621.00
The above table clearly shows that in 2002, 2003 and 2004 the father paid a much greater percentage of his income in child support than was reasonable. He paid a total of $104,621.00 to the end of 2011 and has continued to pay $100.00 per week to the present time.
The matter which I consider critically important is that I am faced with a very difficult task in being asked to recalculate the child support for a period of 12 years in the face of constant changes in the parties incomes and I am faced with this task because of the mother’s failure to comply with the requirements of the 2001 order to provide financial information to the father so that the amount could be recalculated each year.
S.66K(1)(e) allows me to take into account any special circumstances of the case which would result in injustice and hardship to a person and I consider that the mother’s failure to provide financial information to the father each year as required by the 2001 order amounts to such special circumstances.
Had the mother provided the financial information each year the child support amount could have been re-calculated using the [W] Child Support Schedule quite simply and with confidence that the figures given for the costs of the children were correct.
If I attempt to retrospectively recalculate the child support, especially in light of the less than satisfactory information provided by the mother and her failure to attend the hearing, there is an unacceptable risk that the outcome will be unjust to one party or the other, and if it is unjust to the father this will be a harsh outcome. He is 61 years old with minimal assets and it could result in him being faced with a debt which he has no capacity to pay.
Although it is a rough way to arrive at a solution to this matter, I consider that the just and equitable outcome in all of the circumstances of the case would be to order that whatever the father has paid to date should stand as the amount required from him between 2001 and the present time.
The father proposed that between now and [Z] turning 18 he pay $125.00 per week child support. The mother proposed that the amount be $251.60 per week.
As far as I can make out the mother estimated that [Z]’s needs (including a share of her home loan costs) were either $575.37 per week or $419.00 per week.[3]
[3] Cf Annexure A to mother’s affidavit sworn 10 July 2013 and filed 12 July 2013 and Annexure D to the mother’s affidavit sworn 19 February 2013 and filed 12 July 2013
The mother was not available for cross-examination so that these claims could be clarified and tested, and there is no published research to assist me to arrive at a figure. However [Z] undoubtedly has needs and using a figure of $420.00 per week does not seem out of the ballpark.
The father has the capacity to pay the $100.00 he is paying at the moment and indeed the capacity to pay more. In his Financial Statement filed on 18 January 2013 he declared income was $1,023.00 per week and that he had expenses of $1,031.00. His expenses however included $100.00 per week child support paid for [Z], $106.00 he described as “Gifts,” $9.00 for the maintenance of a motor vehicle although he does not own one and $125.00 for credit card repayments which is $65.00 in excess of the minimum payment required.
I do not know what the mother’s capacity to provide for [Z]’s needs is because she did not provide a current income figure. However her 2011 income was some $AUD 40,000.00 more than the father’s per annum, and I have a strong suspicion that the mother’s failure to provide information about her current income is because it has improved. This leads to the inevitable conclusion that the mother should bear a greater proportion of the costs of [Z]’s care than the father.
The father has the capacity to pay $125.00 and he offered to pay it, and in the circumstances I intend to order that the father pay this amount in lieu of the $100.00 per week he is currently paying until December 2014 when [Z] turns 18.
I have drafted orders consistent with my reasons but if the Child Support Agency has any difficulty with the wording of the orders the father may need to seek to relist the matter so that the drafting of the orders can be re-considered.
For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of Judge Terry
D/Associate:
Date: 20 January 2014
Key Legal Topics
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Family Law
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Statutory Interpretation
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Appeal
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Jurisdiction
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Remedies
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Statutory Construction
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