Jones and Jones

[2012] FamCA 1006

FAMILY COURT OF AUSTRALIA

JONES & JONES [2012] FamCA 1006

FAMILY LAW – CHILDREN – Child Support – Lump sum payment ordered - Where requirements under s125 of the Child Support (Assessment Act) 1989 (Cth) not fulfilled in original Reasons for Judgment – Where not clear that lump sum payment to be credited towards Father’s liability for child support – Where the ‘slip rule’ was insufficient to amend this – New Order made to clarify

APPLICANT: Mr Jones

RESPONDENT: Ms Jones

FILE NUMBER: BRF 4613 of 2002

DATE DELIVERED: 30 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 26 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hofstee, solicitor, Hofstee Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance by the Respondent Mother

Orders

It is Ordered that:

1. The lump sum payment of $27,548 paid by the Father, Mr Jones, to the Mother, Ms Jones, pursuant to the Reasons for Judgment handed down by the Honourable Justice Bell on 18 September 2003 and the Order made 18 September 2003 and amended on 1 June 2012 by Registrar Spinks, be credited against the Father’s liability for child support for a period of four (4) years from 18 September 2003.

2. The Father, Mr Jones, have liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jones & Jones 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 BRISBANE

FILE NUMBER: BRF 4613  of 2002

Mr Jones

Applicant

And

Ms Jones

Respondent

REASONS FOR JUDGMENT

1. This matter concerns an Order I made on 18 September 2003 regarding property settlement and parenting. Within my Reasons for Judgment at [18]-[21] and [33]-[34] I outlined that $27,548 be paid by way of lump sum child support by the Applicant Father, Mr Jones (“the Father”).

2. I failed, however, to include this payment in the Orders. Despite this, the Father paid the sum to the Respondent Mother, Ms Jones (“the Mother”), directly and it is not in dispute that such payment was received.

3. The Father deposes in his affidavit filed 16 October 2012 that he sought my Order made on 18 September 2003 be rectified on 7 July 2004 however this was not resolved and due to other ongoing legal issues, the matter was not looked into again until this year.

4. The Child Support Agency did not accept that the payment made by the Father is to be a credit on the Father’s child support assessment. The Father ascertained that the Agency required the Order to be on record. Therefore I gave Registrar Spinks authority to amend the Order under the ‘slip rule’ on 1 June 2012.

5. Quite rightly, the Child Support Agency has not accepted this amendment to confirm that the lump sum payment should affect the Father’s child support assessment. The Agency states in a letter to the Father dated 15 August 2012 (annexed to the Father’s affidavit filed 16 October 2012):

   As discussed, while the updated order was made under the “slip rule”, it does not change the interpretation of the original order and the lump sum payment is still considered to be in addition to the child support payable by [Mr Jones] under the Australian child support assessment.

   …

   [Mr Jones] would need to obtain a new Court Order which clearly states how the lump sum will effect the assessment and for what period and he should seek his own legal advice on this process; i.e. his likelihood of being successful in reducing his outstanding child support debt and the costs associated with obtaining a new order.

6. The Child Support Agency also outline in this letter the requirements pursuant to the Child Support (Assessment Act) 1989 (Cth) that I must fulfil if I intend for the lump sum to affect the child support assessment. Under subsection 125(3) of this Act, I must state in my Order how the lump sum child support is to affect the support assessment and what period is to be effected. I have failed to fulfil such requirements in my original Reasons for Judgment. I endeavour to do so now.

7. I therefore Order that the payment of $27,548, paid by way of lump sum to the Mother, be credited against the Father’s liability for child support for a period of four years.

8. As I stated in my Reasons for Judgment regarding the child support situation at the time (at [18]-[21]):

   … The wife sought a child support order on behalf of [B]. An order was made, eventually, in the sum of $573.92 per month. However, and regrettably, the child of his first marriage, I think her name was [C], too, the child of his first marriage was entitled under American law to child support, maintenance and it was ascertained that he owed something like $50,000-odd as and by way of child support or maintenance for that child in the United States….as a result of s 70 of the relevant Act that order…has priority to the order made by this Court and consequently, the greater majority of that child support assessment in favour of [B] is being used to set off the indebtedness by the husband to the child in the United States…

   The wife then receives comparatively small amounts per month, varying from $7 to $12 to – I think on one occasion, she got $200. It is set out in one of the exhibits.

   Consequently, that is one of the reasons why the application for a lump sum child support amount is being sought, because as has been said by Carew of counsel for the applicant, there is little or no likelihood of her receiving any substantial amounts of child support.

   …

   As I have said, that is the reason why she is seeking a lump sum apportionment because, as Carew says, there is little or no chance, in fact I think probably no chance, that [B] would receive any allocation under the child support order already made before he was over the age of 18…

1. In relation to the lump sum payment, I stated (at [33]-[34]):

   Further, we now have to look at whether in fact I will order a lump sum payment as and by way of child support. As I have already touched upon this, it appears to me that the father has no chance, on what he says, of paying any substantial amount of the assessment of $500 odd per month. Consequently that is, as far as I am concerned, proper that he be able to pay out that amount of some $27,508 to the mother in order that his son, [B], will have some support from his father rather than the varying amounts as set out in exhibit 2.

   I have been informed from the Bar table that s 125, taking into consideration that section, that the maths come to $27,548….Consequently I will order that an amount of $27,548 be paid by way of lump sum. I consider it is just and equitable in all the circumstances and otherwise proper.

2. It is clear from my reasons that I was applying section 125 of the Act in making the Order for the lump sum payment. That section, as it was in place in 2003, states:

   (1)If the court makes an order under section 124, the court must state in the order whether the child support ordered to be provided by the liable parent is to be credited against the liable parent’s liability under any administrative assessment (in this Division called a relevant administrative assessment) of the child support payable by the liable parent to the carer entitled to child support that relates to the period, or a part of the period, for which the order has effect.

   (2) The court may state that the child support is not to be credited against the liable parent’s liability under any relevant assessment only if it is satisfied that, in the special circumstances of the case, it would be:

   (a)just and equitable as regards the child, the carer entitled to child support and the liable parent; and

   (b)otherwise proper

   that the child support should not be credited.

3. The Agency contends that my use of the words ‘just and equitable in all the circumstances and otherwise proper’ in my Reasons for Judgment indicated that I have considered that the lump sum child support is not to be credited against the Father’s liability (see the Agency’s letter referred to in [5]).

4. I regret that I did not make it clear in my Reasons for Judgment the effect of the lump sum payment. I did not state any special circumstances of the case nor did I state, as the section says I must, whether the lump sum should or should not be credited. I did intend for the lump sum payment to be credited against the Father’s liability.

5. I am thus stating clearly now that the lump sum payment of $27,548 is to be credited against the Father’s liability for child support. The requirements to have this Order take effect are set out in subsections 125(3) and (4) of the Act:

   (3) If the court states in the order that the child support is to be credited against the liable parent’s liability under any relevant administrative assessment, the court must also state in the order either:

   (a)that the child support has an annual value of the specified amount and that the annual rate of the child support payable under any relevant administrative assessment is to be reduced by that amount; or

   (b)that the child support is to count for a specified percentage of the annual rate of child support payable under any relevant administrative assessment.

   (4) The court may, under subsections (1) and (3), make different provision in relation to different child support periods and in relation to different parts of a child support period.

6. Further section 125 of the Act states that if I am making such an Order, I must give my reasons for making it along with my reasons for making the statement included in the Order under section 125. I must also cause those reasons to be entered in the records of this Court.

7. How will it affect the child support assessment and for what specific period will it have an effect? An Order for child support had been made in the sum of $573.92 per month. I had found that it appears there was no chance that the Father would pay any substantial amount of that assessment. Therefore, I ordered that he pay the amount as a lump sum payment to the Mother. As the Father deposes in his recent affidavit, the lump sum payment is to be paid to cover the child support assessment for a period of four years as the sum of $573.92 per month multiplied by 48 months totals $27,548. Therefore, the lump sum payment is to cover the child support assessment for a period of four years from the date of my Order, being 18 September 2003.

8. I am of the opinion that the lump sum child support payment referred to here and before, has an annual value of the specified amount and that annual rate is to be reduced by the aforesaid amount rateably over a period of four years. I have also indicated in my original judgment that I am of the view that the Order was just and equitable as regards the child, the carer entitled to the child support, and the liable parent, and otherwise proper in this case. 

9. My reasons for making this Order are that the child will, therefore, have some guaranteed support from the Father rather than the Mother receiving varying payments as set out in exhibit 2 due to the Father’s obligations to the child of the Father’s first marriage and the debt owed in the United States in relation to such obligation. I find that it is just and equitable in all the circumstances that this lump sum payment, as it is calculated to be what the Father would have paid under the child support assessment, should be credited against that liability.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 30 November 2012.

Associate: 

Date:  30/11/12