Imago and Imago
[2010] FMCAfam 411
•28 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IMAGO & IMAGO | [2010] FMCAfam 411 |
| CHILD SUPPORT – Overseas maintenance orders made in 1998 and varied in 2006 – mother and two children live in the United States of America – father’s application to vary American order and to discharge arrears. |
| Child Support (Registration and Collection) Act1988, ss.4, 18A Family Law Regulations1984, reg.36, 38 |
| Beck v Sliwka (1992) FLC 92-296 Streets & Streets (1994) FLC 92-509 |
| Applicant: | MR IMAGO |
| Respondent: | MS IMAGO |
| File Number: | SYC 4746 of 2009 |
| Judgment of: | Sexton FM |
| Hearing date: | 3 February 2010 |
| Date of Last Submission: | 3 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2010 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | No appearance |
| In attendance for Child Support Agency: | Ms R |
THE COURT ORDERS THAT:
The Father’s application for DNA testing of the applicant’s two children [X] and [Y] be dismissed.
The Orders of the Pennsylvania Court of 6 March 2006 be varied as follows:
(a)For the period 1 March 2006 until 23 August 2015 ([Y]’s 18th birthday) the Father’s liability for child maintenance be set at $217AUD per month.
(b)The child support payable by the Father be increased in accordance with the Consumer Price Index on 1 July 2010 and on 1 July each year thereafter.
A sealed copy of these orders be forwarded forthwith to Ms R of the International Division of the Child Support Agency.
The Child Support Agency be granted liberty to apply within 30 days in relation to implementation of these orders.
The Child Support Agency of Australia forthwith forward a sealed copy of this Order to the Respondent Mother.
IT IS NOTED that publication of this judgment under the pseudonym Imago & Imago is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA ATSYDNEY |
SYC 4746 of 2009
| MR IMAGO |
Applicant
And
| MS IMAGO |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns child maintenance for [X] born [in] 1995, now aged 15 years and [Y] born [in] 1997, now aged 12 years. The parties are the children’s parents. The Father lives in Sydney with his wife of 10 years, Ms P. The applicant Father and Ms P were expecting their first child in March 2010. The Mother lives in the United States of America with [X] and [Y].
In his application filed on 10 August 2009, the Father sought a variation of a child maintenance order made by the Court of Common Pleas of Cumberland County, Pennsylvania, USA on 6 March 2006. The Father asked this Court to discharge the whole of his child maintenance arrears and sought an order that his ongoing liability for child maintenance be calculated by the Child Support Agency in Australia in accordance with the assessment formula.
The applicant Father was self-represented and his case was poorly presented.
The Father’s affidavit evidence referred in general terms to his circumstances after the original child maintenance order was made in New Jersey in 1998. Yet his application seeks a variation of the order of the Pennsylvania Court of March 2006. I advised the applicant there appeared to be fundamental difficulties in his case as presented and that much of the evidence in his affidavit was irrelevant to the question I was being asked to determine. I invited him to withdraw his application, seek legal advice and then file another application. He declined to take that course. He asked the court to proceed, despite the deficiencies in his material.
In his amended application filed on 19 November 2009, the applicant states in “Final Orders sought”:
I am seeking to have the amounts paid in child support over the years acknowledged and the amounts owing in arrears varied to reflect my actual income earned over the years instead of being based on income I have never earned and penalties incurred because of this discharged [sic]
That the husband pay child support in the amount of $268(AUD) per month as estimated by the child support calculator being based on the husband’s current income (as at October 2009) and the fact that my Wife [Ms P] and I are expecting our first child in March 2010 and my ex-wife’s (Ms Imago) income converted to Australian dollars (as of March 2006…). In addition I request that an unemployment/hardship (…) clause be included in the final order in the event of my being unemployed or unforeseen circumstances arising making it impossible for me to work thereby significantly affecting my earning potential and income…
I am seeking an order that will allow DNA testing of both [X] and [Y] for two reasons to ensure I am financially obligated to both children and for medical reasons…
In support of his Application, the Father relied on a financial statement and an affidavit sworn on 8 August 2009 and filed on 10 August 2009. In support of his Amended Application, the Father relied on an Affidavit sworn on 17 November 2009.
Involvement of the Respondent Mother in the proceedings
The Father filed an affidavit of service and an acknowledgement of service on 9 September 2009 verifying compliance with the Rules in relation to service on the respondent Mother. On 14 September 2009, when the matter first came before the Court, the Mother was directed to file and serve her response, affidavit in support and financial statement by no later than 4.00p.m. on 19 October 2009, and a sealed copy of those Orders was sent to the Mother at her address for service.
On 21 October 2009, the Court received from the Central Authority Child Support Agency, International Division in Tasmania, a bundle of documents from the Central Authority in Philadelphia, Pennsylvania. According to Ms R, Senior Advisor in the Technical and Quality Assurance Section, of the International Child Support Division in Tasmania, (who appeared in an amicus capacity at the hearing), the Philadelphian authority was advised by the Child Support Agency of the Father’s application, and the material forwarded to the court on behalf of the Mother, was prepared by the Mother with the assistance of the Philadelphian authority, in response to the Father’s application. Ms R said that the Central Authority in Philadelphia was asking the Court to have regard to the material provided by the Mother in response to the Father’s application.
On 27 October 2009, the matter was listed for further mention before me. I listed the matter for hearing, and the Mother was granted leave to appear by telephone at the hearing by making arrangements with my Associate. The Mother was also given liberty to rely on written submissions to be filed and served no later than 14 days prior to the hearing. The Mother was given an extension of time to file and serve her responding material. According to Ms R, a sealed copy of those orders was forwarded to the Mother on 30 October 2009. Nothing further was received from the Mother or from the Philadelphian Central Authority on the Mother’s behalf.
The Father adduced no evidence to prove service of the Amended Application or further affidavit upon the Mother. However, I am satisfied the Mother was on notice of the proceedings and was aware of the nature of the proceedings. I am satisfied the Mother was aware of her right to participate in the hearing by telephone on 3 February 2010, but did not do so. I have had regard to the content of the documents provided to the court on the Mother’s behalf by the Central Authority in Philadelphia. I am not satisfied the Mother was prejudiced by not being served with the Father’s amended application.
Father’s Application in a Case
On 27 November 2009, the Father filed an Application in a Case seeking to have his Wife, Ms P joined as a party. Under “Orders sought” the Father says:
I am seeking to have my Wife [Ms P] included as a party to the case, as she is able to give evidence regarding agreements and conversations that have been had with Child Support as she has authority to deal with the Child Support Agency as well as being the one who deals solely with our finances.
At the hearing on 3 February 2010, I dismissed the Application in a Case with brief reasons.
Father’s Application for DNA testing
In relation to the Father’s application for DNA testing of [X] and [Y], the Father says in his affidavit sworn 17 November 2009 that he wants his children to be tested for a blood disorder known as Thalassemia and that is why he is seeking the order for DNA testing. He adduces no evidence to suggest the children are not his biological children, nor of any question ever being raised in the past as to his paternity. In his affidavit sworn on 8 August 2009, the Father claims he is unsure as to whether or not [Y] is his son because he was separated from his wife at the time [Y] was conceived and was living in another state. He adduces no evidence of each party’s circumstances during the relevant period and no evidence as to why the issue was not raised at the original hearing in 1998 or subsequently, while he remained living in the United States. I am not satisfied there is any basis for an order for DNA testing in these proceedings.
The Father’s current liability
The Father’s current liability under the Pennsylvanian order of March 2006 is $893AUD per month. As at 27 January 2010, the liability registered by the child support agency was in arrears of $112,517AUD (including overdue payment penalties). The Father is currently making contributions in the amount of approximately $50AUD per week[1]. As already noted, he seeks to decrease his monthly liability to $268AUD per month, an amount he understands he would be required to pay if his liability were assessed by the Child Support Agency in Australia as at October 2009. He also seeks a variation or discharge of the arrears. The Father has not yet sought an assessment from the Child Support Agency, and the Child Support Agency has not commenced enforcement proceedings against the Father.
[1] Child Support Payer Transaction Statement for the period 30 July 2003 to 27 January 2010
Ms R from the Child Support Agency’s international division attended the hearing by phone from Tasmania. The Father gave oral evidence. Although she had not sworn an Affidavit in the proceedings, on the basis that the Father repeatedly told the Court Ms P alone was aware of their financial circumstances and the expenses he was required to meet, I permitted Ms P to give short oral evidence as to hers and the Father’s current financial position.
Background
The Father and the Mother married in Pennsylvania in the United States of America [in] 1993, separated on 13 June 1996 [2] (although the Father states 15 April 1997 as the date of separation in his Application and Amended Application) and were divorced on 15 October 1998.
[2] October 1998 Order at Annexure 1 of father’s affidavit sworn 8 August 2009, and paragraph 3 of father’s affidavit sworn 8 August 2009
On 15 October 1998, an order was made by the Superior Court of New Jersey requiring the Father to pay maintenance for [X] and [Y] in the amount of USD$123 per week. The Order also provided for the Mother to have custody of the children and for the Father to have “reasonable rights of visitation”, including “every other weekend – every other holiday – two weeks in summer.”[3] In oral evidence, the Father says that he was present at the final hearing in 1998 and requested that the amount be increased to $150USD per week, which was granted. However, the October 1998 Court order states that the Father was not present at that hearing and that the order was $123USD a week. In his affidavit at paragraph 15, the Father deposes to an increase in the liability from $123USD to $150USD from 25 October 1999 due to outstanding arrears. The Father says[4] he decided to stop paying the maintenance as ordered, sometime in 1999, because the Mother relocated and refused to allow him to see the children. I am not satisfied the Father’s liability was increased from $123USD per week to $150USD per week until the Court made a further order on
18 September 2000 to include an additional amount of $27USD a week towards the arrears.[5]
[3] Annexure 1 to Father’s affidavit sworn 8 August 2009
[4] At page 29 of the transcript of the proceedings
[5] Annexure 4 to father’s affidavit sworn 8 August 2009
The Father left the United States on 31 December 2002 and has never returned. He says he cannot return for fear of being arrested for unpaid child support arrears. He says he is very unhappy in Australia as he is vilified as an American and wants the opportunity to return to the United States. His sons do not spend time with him although he says they have occasional telephone communication with him. The Father has lived with his present wife in Australia since 1 January 2003.
The registration of the USA order took effect in Australia from
30 July 2003. The liability registered by the Agency at that time was arrears of $19,919.50AUD, with ongoing periodic child support of $803.63AUD per month payable by the Father to the Child Support Agency.
According to a document from the Cumberland County Court of Pennsylvania dated 22 March 2005,[6] on 15 March 2005, the Court confirmed that the Father had been directed to pay $150USD a week for the maintenance of his children from 25 October 1999 and that arrears as at 22 February 2005 were $21,215.91USD. However, the order of 15 March 2005 was vacated because of deficiencies in the Father’s material sent to that Court by the Father in support of his application for modification.[7] On 22 March 2005, the Court advised the Child Support Agency that if the Father wished to pursue an application for modification he would need to start the process again. On 19 June 2005, the Father filed another application for modification of the earlier orders[8]. I am unable to establish from the evidence relied on, precisely what documents the Father forwarded in support of this modification application and what documents were available to the Court when it dealt with the application.
[6] Annexure 3 of the father’s affidavit sworn 8 August 2009
[7] Page 43 of Annexure 3 of father’s affidavit sworn 8 August 2009
[8] Pages 44 to 45 of Annexure 3 of father’s affidavit sworn 8 August 2009
On 6 March 2006, an order was made in the Court of Common Pleas of Cumberland County Pennsylvania which varied the Order made by the Superior Court of New Jersey. The Father had sought an order that “arrearages be remitted and order reduced.”[9] According to the Court document, at that time, the Father’s liability was $533USD per month. The Father says he appeared by telephone at the hearing of the application, at 2.00a.m and was disconnected 3 or 4 times. Although the Father does not specify which documents he forwarded in support of his application for modification, the Father claims the Pennsylvania Court failed to have regard to financial information he forwarded for the purpose of the hearing. The monthly amount payable by the Father was set at $662.54USD from 1 March 2006, and the arrears as at that date were $28,893.90USD. The Father was ordered to pay, in addition to the monthly amount of $662.54USD, the sum of $192USD per month towards the child support arrears – a total monthly amount of $854.54USD.
[9] Annexure 6 of father’s affidavit sworn 8 August 2009
The Father commenced these proceedings on 10 August 2009, and the matter was listed for final hearing before me on 3 February 2010.
Legal principles
Section 18A of the Child Support (Registration and Collection) Act 1988 defines registrable overseas maintenance liability as a liability of a parent of a child to pay a periodic amount for the maintenance of the child, and an overseas maintenance liability. Section 4 of the Act defines overseas maintenance liability as a maintenance order made by a judicial authority of a reciprocating jurisdiction. The United States of America is a reciprocating jurisdiction prescribed by Schedule 2 of the Child Support (Registration and Collection) Regulations 1988. The Father’s liability is therefore a registrable overseas maintenance liability.
Regulation 36 of the Family Law Regulations 1984 applies to an overseas maintenance entry liability or a registered maintenance liability. The Regulation applies to the American order. Under regulations 36(2) and 36(3)(b) the applicant Father can bring an application to this court for an order discharging, suspending, reviving or varying a liability to which the Regulation applies. The application is determined under the Family Law Act 1975.[10]
[10] Regulation 36(4) and Regulation 3(1)
An order made under Regulation 36 is final in Australia because the United States is not a reciprocating jurisdiction under Regulation 38(1). This means that if an order is made, the Child Support Agency will vary the register to give effect to the final court order. However, any order made by this court is extremely unlikely to be recognised in the United States. As Ms R said:[11]
…it is our experience that it is extremely difficult to have a US court change a maintenance order and change the circumstances, particularly if the circumstances are perceived by the court to be the result of somebody’s, you know, lifestyle decisions or that they have decided to move countries or whatever, is often not looked on in a very sympathetic manner so it is very difficult to have orders changed in the United States…
[11] At page 10 of transcript of proceedings
Therefore it is likely that arrears will continue to accrue in the United States under the original order irrespective of any order made by an Australian court.
Child maintenance orders are governed by Division 7 of Part VII of the Family Law Act 1975. Section 66S deals with modification of child maintenance orders. Section 66S(2)(d) provides that a Court may, subject to subsection (3), vary an order so as to increase or decrease any amount ordered to be paid by the order or in any other way.
Section 66S(3) provides that the court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied
a)That since the order was made or last varied, the circumstances of the child, the person liable to make payments or the person entitled to receive the payments, have changed so as to justify the variation; or
b)That since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing; or
c)If the order was made by consent – that the amount ordered to be paid is not proper or adequate; or
d)That material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.
The onus is on the applicant Father to prove his case.
If the court is satisfied one of the s.66S(3) conditions is satisfied, s.66G provides that the court may make such child maintenance order as it thinks proper. The Court must consider the financial support necessary for [X] and [Y]’s maintenance and then determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the children, that should be made by each of the parties to the proceedings.[12]
[12] Section 66H
The issue for determination
As already noted, the Father seeks an order varying the child maintenance order of the Pennsylvania Court of 6 March 2006, when that Court, on the Father’s application, modified the original order made by the Superior Court of the State of New Jersey on 15 October 1998. However, on a reading of his affidavit material, and on hearing his submissions, it was apparent that the Father, in seeking a discharge of the arrears which have accrued since 1999, was actually seeking a variation of the original order made by the Pennsylvania Court in October 1998, and as a consequence, a variation of the amended order of March 2006. Although the Father did not address the Court as to which provision in section 66S(3) he relied on, his evidence primarily addressed his own personal circumstances. I am therefore satisfied the Father is relying on section 66S(3)(a).
The Father’s evidence is contradictory. On the one hand, he claims to have paid child maintenance in terms of the original order until he decided to stop paying because the Mother relocated and he was unable to see the children. On the other hand, he claims he was never in a financial position to meet the order. In his Affidavit, the Father says that his financial circumstances changed in December 2001 (although his affidavit of August 2009 at paragraph 2, when he refers to a change occurring in December 2000, is inconsistent with the contents of paragraph 15 of the same affidavit, when he refers to a change in December 2001) and that as a result, he has been unable to meet his child maintenance obligations at least from that time.
To make sense of the Father’s case, I have endeavoured to assess his financial position as at October 1998, and to changes in his circumstances since that time.
Has the Father established a change of circumstance since either the date of the Pennsylvanian order on 15 October 1998 or since the date of the variation order on 6 March 2006, such as to justify a variation in either of those orders?
As already noted, the paucity of the Father’s evidence has significantly limited the findings the Court is able to make. I have regard to the following:
a)The children remained living with the Mother after the parties separated and have remained living with her since. The children saw very little of the Father after separation and have not seen him at all since he moved to Australia to live in January 2003.
b)On 15 October 1998, the Father was ordered to pay $123USD per week in child maintenance. At that time, the Father deposes to working [in the hospitality industry] in New Jersey. He says that, although he earned a base salary of $2.20USD an hour, he could earn up to $100USD an hour during busy periods, which included weekends. Although the Father deposes to having had insufficient income to comply with the October 1998 order, on his own oral evidence he met his child maintenance obligations in accordance with the 1998 order for at least a few months, and then refused to pay because “my ex-wife forbade me from seeing the children.” [13]
[13] At page 29 of the transcript of the proceedings
c)The Father adduces no evidence of his annual income, his expenses or of his asset and liability position at the time of the 1998 order.
d)On the evidence available, I find the Father was able to meet the 1998 order at the time it was made, and for at least a few months thereafter.
e)Sometime soon after the October 1998 Order was made, the Mother relocated with the children from New Jersey to Pittsburgh, a distance of some hours by car or public transport. The Father says the weekends were the busiest time for him in the restaurant, and the most profitable for earning tips, so it was exceptionally difficult for him to travel to Pittsburgh to see the children. The Father says that as a result of the Mother’s move, and his inability to see the children, he became depressed and started drinking alcohol. He says he developed a major alcohol addiction that made it “increasingly difficult for me to sustain gainful employment.” He does not say when or to what extent his earnings decreased or what his income was in the 1999 financial year. He adduces no evidence of the precise financial impact of his depression and alcohol use on his earning capacity or financial situation. I can make no findings as to his actual financial position during this period.
f)
The Father commenced a relationship with his present wife,
Ms P, in or around October 1999.
g)From 24 December 2000 to 31 December 2002, the Father says he was “in and out of employment” and “more unemployed than employed” working mainly [in the hospitality industry], but for a period of time, [in the sales industry]. He says he lost that job due to excessive drinking and “my increasing depression and anxiety was making it harder for me to control my need to drink”. He entered a rehabilitation facility in Pennsylvania. The Father says that at that time he was being supported both financially and emotionally by Ms P and his mounting child support debt was making his depression worse. He adduces no independent evidence of these assertions or the financial impact of his condition on his earning capacity or financial situation. I can make no findings as to his actual financial circumstances during this period.
h)The Father arrived in Australia from the United States on 1 January 2003. Until then, he says he had been unable to obtain a passport to travel from the United States due to the level of his child support arrears. The Father says he came to an arrangement with the Mother to pay her a lump sum amount of $10,000AUD in partial satisfaction of the arrears and this was sufficient to enable him to obtain a passport to leave the United States. The Father says Ms P’s mother lent him the $10,000AUD so he could travel to Australia with Ms P. He has never repaid her.
i)The Father adduces no evidence of his financial position when he arrived in Australia or of the level of his child support arrears at that date. After his arrival, the Father says he remained unemployed until 18 March 2003 when he was granted a temporary work permit in Australia. In April 2003, he commenced employment in the [hospitality industry]. He does not say what he earned. He says he remained in that position for a period of six months before losing his job. He adduces no evidence from [the company]. The Father says that he was “in and out of jobs from this point onwards.” He says that his alcohol dependency worsened and he admitted himself to [omitted], a detoxification unit in [omitted] Hospital, on two occasions. He does not say when these admissions occurred and adduces no evidence from the Hospital as to the severity of his condition or of its impact on his capacity for employment. I can make no findings as to his financial circumstances during the period 1 January 2003 to 30 June 2003.
j)The Father’s Notice of Assessment for the year ending 30 June 2004 discloses a taxable income of $15,724.00AUD in that financial year.
k)In an Income and Expense Statement prepared by the Father for the Pennsylvania Court, dated 23 March 2005, the Father discloses an average gross weekly income of approximately $630AUD a week, or an average net weekly income of $470AUD and weekly expenses of $490AUD a week. He states that his only asset was $150AUD in savings in the bank[14]. He stated that his income varied according to the number of hours worked each week.
[14] Page 33 of Annexure 3 of father’s affidavit sworn 8 August 2009
l)His Notice of Assessment for the year ending 30 June 2005 discloses a taxable income of $27,469AUD per annum[15] less than the annual income calculated on the figures he provided in his Income and Expense Statement in March 2005.
[15] Page 4 of Annexure 5 of father’s affidavit sworn 8 August 2009
m)The Father annexes a further Income and Expense Statement dated 19 June 2005[16] in which he discloses a gross weekly income of $300-350AUD a fortnight, expenses of $490AUD a week, and assets of $50.00AUD. He states that his gross income varies according to hours worked each week and that he was working at best, 2 days a fortnight “but this varies to maybe two days every 3 or 4 weeks”. On 26 January 2006, the Court advised the Father that he had failed to provide proof of income and that if he failed to provide documentary verification of his income, his application to modify the previous order may be dismissed[17].
[16] Page 40 of Annexure 3 of father’s affidavit sworn 8 August 2009
[17] Page 62 of Annexure 3 of father’s affidavit sworn 8 August 2009
n)In the Income and Expense Statement dated 10 February 2006, the Father discloses a gross income of $3,460AUD a month, ($41,520AUD per annum) expenses of $3,477AUD a month, and assets of AUD$30AUD in a savings account. There is no reference in the Statement to his liabilities, with the exception of a payment of AUD$800 a month for a joint loan with Ms P and a credit card repayment of AUD$210 per month. There is no evidence as to whether this document was available to the Pennsylvania Court hearing his modification application in March 2006.
o)The Father says he participated in the March 2006 proceedings by telephone from Australia at 2.00a.m, but was frequently disconnected.
p)Prior to the March 2006 hearing, the Father was obliged to pay child maintenance in the sum of USD$533.00 per month. The Summary of Facts relied on by the Court in the modification proceedings stated that the Father gave verbal notice to the Court, in the absence of any documentary verification of his income, that he earned $20AUD per hour and worked 42 hours per week, equating to $840AUD per week, or $43,680AUD per annum or $625.23USD gross per week. His net taxable income was therefore estimated to be $25,075.20USD (or $2,089.60USD per month). The Mother submitted orthodontic expenses for the children, and the Court assessed the Father’s liability for this expense at $1190.70USD. The Father was ordered to pay $662.54USD a month in addition to $192USD a month for arrears, a total of $854.54USD a month.
q)The Father denies the factual basis upon which the Court made the order. In his affidavit sworn on 8 August 2009, the Father says:
I had sent all the requested information along with tax returns and payslips that they had requested after trying to fax it and it was not going through I mailed it to the USA. I am baffled as to how if they received this information they requested that I sent them they determined I earned a salary of $43,680 per annum which I clearly did not and never have as is evident from my notice of assessments and if they did not receive the information (as they claimed on the day of the conference) how they could come up with this figure. …
The facts that they are stating were agreed upon in this final order were most certainly not agreed upon by me. …
My work for the 2005/6 financial year was sporadic at best due to my depression and alcohol addiction and my inability to hold down a job.
r)His Notice of Assessment for the year ending 30 June 2006 discloses a taxable income of $15,996AUD per annum[18], significantly less than the income calculated by using the figures the Father provided in his Income and Expenses Statement of 10 February 2006 which is $41,520AUD per annum. However, assuming the Pennsylvania Court had access to the Father’s Statement of Income and Expenses dated 10 February 2006, I am satisfied there was a basis for the Court’s finding as to the Father’s income at that time.
[18] Page 3 of Annexure 5 of father’s affidavit sworn 8 August 2009
s)His Notice of Assessment for the year ending 30 June 2007 discloses a taxable income of $11,570AUD per annum.[19]
[19] Page 2 of Annexure 5 of father’s affidavit sworn 8 August 2009
t)His Notice of Assessment for the year ending 30 June 2008 discloses a taxable income of $8,883AUD per annum.[20]
[20] Page 1 of Annexure 5 of father’s affidavit sworn 8 August 2009
u)The Father says he attempted suicide on three occasions, and annexes a letter from Dr P dated 3 May 2007, consultant psychiatrist[21], stating that the Father was seeking treatment:
[21] Annexure 7
…for a long standing, primary major depressive disorder, with associated anxiety and panic attacks. The secondary problem, due in part to the untreated major depression, is alcohol abuse. The treatment strategy is to aim for total abstinence from alcohol, combined with using medication to treat his major depressive disorder, or which there is a very strong family history.
v)The ICU discharge summary from [hospital omitted] states that the Father presented to emergency with a xanax overdose on 23 April 2007. It noted a history of depression and heavy alcohol use. It noted the Father self-discharged against medical advice and was advised to have counselling for drug and alcohol abuse[22].
w)The Father says that as a result of this condition he was unable to work and was advised by his psychiatrist and treating doctor to seek employment in a field other than hospitality. He says, however, that he was unsuccessful in moving into an industry where alcohol was not involved as “hospitality and catering is what I have done all my life and is what I am qualified to do.” He says he was being supported by Ms P with assistance from Ms P’s parents.
x)A medical certificate for Centrelink dated 17 December 2008 says the Father suffers from depression and is being treated with counselling and anti-depressant medication[23].
y)At the time his financial statement was sworn in August 2009, the Father had been employed as a casual [employee in the hospitality industry] for five months, and deposed to earning $680AUD per week with weekly expenses of $1,308AUD including $50AUD a week in child support. He deposed to assets of $5,000AUD being the value of household contents and to superannuation with a value of $4,100AUD. He deposes to debts of approximately $66,000AUD, excluding his child support debt.
z)He says that he remained [in the hospitality industry] until November 2009. He then worked for approximately a week at [company omitted] before moving into [the sales industry].
aa)The Father is currently employed full [in the sales industry], and has been in this position since 1 December 2009. He is earning a base salary of $48,000AUD per annum, which includes $9,000AUD per annum for a car allowance (which is not taxed). He also earns a small commission. At the time of hearing, he had received a commission of $280AUD.
bb)The Father lives with his wife, Ms P, in rental accommodation in [omitted]. They have been married for 10 years, and were expecting their first child in March 2010. The Father, in his financial statement, deposes to Ms P earning approximately $520AUD per week and says in oral evidence, this has not changed. Ms P says she planned to stop working before the birth of the baby.
cc)The Father pays rent of $225AUD per week, being half the overall rent. Ms P pays the other half. The Father and Ms P have a joint bank account, but he says there is currently a zero balance. They have household contents valued at $5,000AUD. The Father owns a Mitsubishi 380 SX Series 3 motor vehicle, recently purchased second hand for $17,500AUD. There is an associated debt to Esanda of approximately $23,000AUD. The Father has superannuation entitlements with the Portfolio Service of approximately $5,000AUD.
dd)The Father deposes to one credit card debt of $1500AUD. He also says that he, and Ms P, have a joint personal loan of $47,000AUD with the National Australia Bank with repayment obligations of $1,486AUD a month. The Father and Ms P also have a joint debt to Esanda in relation to two motor vehicles of approximately $43,000AUD. Ms P says the parties have credit card debts of approximately $25,000AUD. They have no assets with the exception of home contents.
ee)The Father suffers from depression and is an alcoholic.[24]
[22] At page 15 of Annexure 7 of father’s affidavit sworn 8 August 2009
[23] At page 14 of Annexure 7 of father’s affidavit sworn 8 August 2009
[24] Mental health assessment July 2009 at pages 24 to 26 of Annexure 7 of father’s affidavit sworn 8 August 2009
On the basis of these findings, I am satisfied the Father has shown a change in his circumstances from the date of the order of 6 March 2006 until the date of hearing sufficient to justify a variation in the current maintenance order from Pennsylvania. I am therefore required to assess the child maintenance payable by the Father from the time Father’s circumstances changed.
The first step is to determine the children’s needs.[25]
[25] Mee and Ferguson (1986) FLC 91-716.
The children’s reasonable needs
In considering the financial support necessary for the children’s maintenance, s.66J provides that the court must have regard to the children’s age, the manner in which they are being educated and trained, and in which the parties expected them to be educated and trained, and any of their special needs.
According to the documents received by the Child Support Agency from the Central Authority in Pennsylvania in September 2009, the children have monthly expenses of $2,618USD. According to the Summary of Trier of Fact in the Pennsylvania Court in March 2006, the children have orthodontic expenses of $4,535USD and their health insurance will cover $1,200USD of that expense. There is no other evidence before me as to the children’s circumstances or as to the children’s needs from the date of the 2006 order to the present time.
The court may have regard to any relevant findings of published research in relation to the maintenance of children. Neither party adduced evidence of published research as to the costs of children living in Pennsylvania. There is no evidence before me to relate the published research in Australia concerning the costs of children to the costs of children in the United States. There is therefore no other evidence before me as to the children’s financial needs.
On the basis of the limited evidence available, I am satisfied the children have monthly expenses of at least $2,618USD a month, or $604USD a week.
The Mother’s circumstances
According to the documents received by the Child Support Agency from the Central Authority in Pennsylvania in September 2009, completed on 10 February 2009, the Mother is an [occupation omitted] earning a gross monthly income of $4,741.75USD and net monthly income of $3,831.27USD. She has expenses for herself of $1,193.38USD and expenses of $2,618USD per month for the children, a total of $3,811.36USD a month. The list of children’s expenses does not include any expense for education, books or extra curricular activities. She owns a home in [omitted] with a value of $157,000.00USD secured by a mortgage loan of $153,000.00USD and a caravan with a net value of $500.00USD. Except for the debt on the home and the caravan, the documents provided do not disclose any additional liabilities.
There is no other evidence before me as to the Mother’s financial circumstances between 1998 and the present. As already noted, the Mother did not attend the hearing.
On the basis of the limited evidence available, I am satisfied the Mother and the children are living in modest financial circumstances.
How should the parties share equitably in the support of [X] and [Y]?
The objects and principles of Division 7, Part VII of the Act are set out in sections 66B, 66C and 66D. Section 66S(10) provides that, to the extent applicable, the court must have regard to these objects. The principal object of the Division, as in the Child Support (Assessment) Act 1989, is to ensure that children receive a proper level of financial support from their parents, that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents and that parents share equitably in the support of their children. Parents have the primary duty to maintain their child and that duty is not of lower priority than the duty of the parent to maintain any other child or child of another person. That duty has priority over all commitments of the parent other than commitments necessary to enable that parent to support himself or another person or child that parent has a duty to maintain, and is not affected by the duty of any other person to maintain the child.
Section 66S(7) provides that 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.
I have had regard to the Father’s Notices of Assessment from the Taxation Department for the financial years ending June 2004 to June 2008, the evidence in his Financial Statement sworn in August 2009 and the oral evidence given by the Father and Ms P at hearing.
Although the Father does not provide evidence of his expenses, assets or liabilities during the period 6 March 2006 to 8 August 2009 when he swore his Financial Statement, on the basis of his taxable incomes during that period, and the level of his debt in August 2009, I am satisfied his debt level has been increasing over a considerable period, and continues to increase, excluding altogether his child support debt of well over $100,000AUD. I find it likely that the Father’s earning capacity was affected during this period by alcohol abuse and mental illness.[26]
[26] Annexure 7 of father’s affidavit sworn 8 August 2009 – medical evidence
Since August 2009, I am satisfied the Father’s expenses have exceeded his income, even though he is paying only $50AUD a week in child support. I have therefore concluded that the Father does not have the capacity to meet the order made on 6 March 2006 in Pennsylvania and his liability should be decreased.
The authorities make clear the court is not required to assess the Father’s liability as though it were being assessed under the Australian child support formula. The CCH Handbook provides a useful summary of the case law on this issue. In Streets & Streets[27] the Full Court applied the majority decision in Beck v Sliwka[28] where it was held that, in cases where the issue is the capacity of the payer to make an equitable contribution to the costs of the children, it is not unreasonable to have regard to the Child Support (Assessment) Act1989 formula in determining the amount of an order under Stage 1. In Coon v Cox[29] his Honour Chief Justice Nicholson held that it was open for the Court to have regard to what would be payable under the Child Support (Assessment) Act 1989 but that the formula in no way controlled the matter in proceedings under the Family Law Act. In Ganter v Grimshaw[30] the child support formula was considered to be only a guide. The Father had two children from a former relationship and one child and step-child in his current marriage. The Full Court held that the trial judge erred in using the child support formula as the starting point, rather than a final check, in determining the liability of the Father for child maintenance. The Full Court held that strict adherence to s.66C(2) and s.66K(4)(a) (which oblige the court to disregard the Mother's pension) would result in an injustice to the Father, but a similar injustice was imposed on the Mother by adopting the child support formula. The only equitable way, the court said, was to divide the Father's available income (less expenses) by four.
[27] (1994) FLC 92-509
[28] (1992) FLC 92-296
[29] (1994) FLC 92-464
[30] (1998) FLC 92-810
In the present case, the Mother has taken almost the whole of the responsibility for [X] and [Y]’s financial and emotional support. On the basis of the Mother’s financial position in February 2009, I am satisfied that the Mother and the children are living in very modest financial circumstances. In these circumstances, I find a significant injustice would be imposed on the Mother if I assessed the Father’s liability on the basis of the Australian child support formula from March 2006. I have decided that injustice would be imposed on the Mother if the Father did not pay child support to the extent of his capacity to do so.
The Father has been paying child support in the sum of approximately $50AUD a week since early 2009. On the basis of his financial position since March 2006, I am not satisfied the Father has had the capacity to pay more than $50AUD a week since then. The Father has an erratic work history and suffers from a mental illness. He has almost no assets. His expenses exceed his income. His wife was due to have a baby last month, and was planning to stop working. I find it unlikely that the Father’s financial position will improve in the foreseeable future.
I have decided the Father will pay $50AUD a week in child support from 1 March 2006 until his youngest son [Y] attains 18 years of age. This will lead to a significant reduction in his child support arrears, but his arrears will not be discharged.
I am satisfied the orders I have made are proper in all the circumstances.
I certify that the preceding 53 (fifty three) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 28 April 2010