Luck and Luck

[2007] FamCA 130

FAMILY COURT OF AUSTRALIA

LUCK & LUCK [2007] FamCA 130

FAMILY LAW – CHILDREN - CHILD SUPPORT  -  Departure – Capacity to pay not reflected in taxable income

Family Law Act 1975 (Cth), Child Support (Assessment) Act 1989, s.116(1A), s.117(1)(b), s.117(2)(b), s.117(2)(c), Part VII, Division 4

Gyselman (1992) FLC 92-279;
Sheahan (1993) FLC 92-375;
Hides v. Hatton (1997) FLC 92-759

HUSBAND: Mr Luck

WIFE: Mrs Luck

FILE NUMBER: MLF 31 of 2006

DATE DELIVERED: 2 March, 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 26, 27 February, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms Wheeler

SOLICITOR FOR THE HUSBAND: Loretta Terrill Family Lawyers, DX 35855, Wodonga

COUNSEL FOR THE WIFE: Ms Boyle

SOLICITOR FOR THE WIFE: Harris Lieberman, DX 35853, Wodonga

Orders

1. That there be a departure from administrative assessments of child support issued for any period since 13 April, 2006 for the children P born in December, 1988, G born in August, 1990 and I born in June, 1992, payable by the husband to the wife, as follows :

   (a)the husband shall pay periodic child support for G and I of $130 per child per week (being an annual rate of $6,760 per child) from 13 April, 2006 until :

   (i)the 18^th birthday of each child;  or

   (ii)the date of the conclusion of each child’s secondary education;

   whichever event last occurs in respect of each of the children;

   (b)the husband shall pay non-periodic child support of one-half of school fees for G and I at T College (“[T]”) for attendance from the commencement of the third school term in 2006 until :

   (i)the 18^th birthday of each child;  or

   (ii)the date of the conclusion of each child’s secondary education;

   whichever event last occurs in respect of each of the children;

   (c) the husband shall pay non-periodic child support for P in the total sum of $3,000. 

1. That sums due pursuant to :

   (a)paragraph (1)(b) for attendance at T in the third and fourth terms in 2006 and the first term in 2007 be paid by the husband to the wife within 30 days hereof;  and

   (b)paragraph (1)(c) be paid by the husband to the wife within 60 days hereof. 

1. That sums due pursuant to paragraph (1)(b) for attendance at T in and after term two in 2007 be paid by the husband to the wife within 30 days of the wife providing a copy of the first account she receives for such fees, and the wife be deemed to have provided such copy on the first postal delivery day after she posts the copy to the husband.

1. That the amount of child support payable under paragraphs (1)(b) and (c) hereof shall not be credited against the husband’s liability for periodic child support pursuant to paragraph (1)(a) of these orders

1. That the husband’s obligation to pay child support pursuant to these orders be secured by a caveatable charge over the farming property owned by the husband and the husband sign all documents prepared by the wife and at the cost of the wife to effect such caveatable charge, within 14 days of receipt thereof, and the date of receipt of the documents is deemed to be the first postal delivery day after such documents are posted to the husband.

1. That in the event the husband fails or refuses to sign and return documents pursuant to paragraph (5) hereof :

   (a)a registrar of the Family Court of Australia be authorised to sign all necessary documents in the name of the husband and do all other things necessary to give force and effect to paragraph (5) of these orders;  and

   (b)the husband in default is ordered to pay all reasonable costs incurred by the wife in enforcing this order.

1. That it shall be sufficient authority for a registrar to act pursuant to paragraph (6) of these orders to have before him or her an affidavit sworn by the solicitor for the wife deposing :

   (a)that documents to effect the caveatable charge were posted to the husband;  and

   (b)twenty-one days have passed since such posting and the documents have not been returned, signed by the husband.

1. That within 28 days of the expiration of the husband’s obligation to pay child support pursuant to these orders the wife do all things reasonably necessary to withdraw (at her expense) any caveat lodged by her over the said farming property of the husband pursuant to these orders.

1. That there be a departure from administrative assessments of child support issued for any period since 13 April, 2006 for the child I born in June, 1992, payable by the wife to the husband and from 13 April, 2006 until :

   (a)I’s 18^th birthday;  or

   (b)the date of the conclusion of I’s secondary education;

   (which event occurs last), the annual rate payable by the wife shall be nil.

1. That in the event a party seeks to make an application for costs of or incidental to the wife’s application for child support :

   (a)that party file and serve submissions in support of such application by 30 March, 2007;  and

   (b)any submissions in response be filed and served by 20 April, 2006;  and

   (c)any submissions in reply be filed and served by 11 May, 2007;

   and the parties endorse on the front cover of each such submission the day it was served on the other party.

1. That within 24 hours of filing any submission pursuant to paragraph (10) hereof, the party filing it fax a copy to the associate to the Honourable Justice Brown on …).

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 31  of 2006

Mr Luck

Husband

And

Mrs Luck

Wife

REASONS FOR JUDGMENT

1. The parties married in January 1987 and separated in September 2004.  They have three children, P born in December, 1998, G born in August, 1990 and I born in June, 1992.  Proceedings in relation to the children resolved, by consent, earlier in this circuit and final parenting orders were made on 26 February, 2007.  The Court is asked to determine competing applications to depart from child support assessments.

CHRONOLOGY

1. Within a few months of separation the parties filed an application in the Local Court, seeking that final property orders be made, by consent.  Each was legally represented.  The application records that the proposed percentage division of property, including superannuation, to be effected by the orders was 84% to the husband and 16% to the wife.  In the section relating to “other relevant matters” the husband deposed that a substantial loading had been allocated to him pursuant to s.75(2) as the wife was a member of the Australian Parliament and had the benefit of a prospective superannuation entitlement from the position, he had a modest superannuation entitlement only and he was a farmer, dependent upon the A property for his livelihood.  The wife is still a member of the Australian Parliament and the husband continues to farm the property.

1. From the time of separation the wife was responsible for maintaining the children, save when they were actually with their father.  He did pay for himself and P to attend a wool-classing course at TAFE, either in 2004/2005 or 2005/2006;  his recollection was that it cost $600 for both of them per semester, and ran for four semesters.  He also gave evidence of other payments made in due course (for example, taking I to dinner in L, a computer bought for the farm, pocket money for two of the children, some sporting items) but agreed he made no contribution to their education or upkeep in their mother’s home.

1. At separation, P was a weekly boarder at S College and G and I were attending T College.  The husband’s evidence was that the children were at those schools purely to advance the wife’s political career;  I understood him to mean that it was necessary for her to live in L rather than on the farm, and that necessitated a change of schools.  She did not agree with that analysis but I am satisfied it is, in any event, irrelevant.  What is relevant is that prior to separation the parties agreed to enrol the children in their respective private schools, and did so, with the expectation they would maintain those enrolments.  I reject his evidence of an agreement made at, or soon after, separation that the wife alone would be responsible for all school fees and incidental expenses in the future.  From the time of separation, the husband offered no contribution to any of the children’s educational expenses. 

1. After separation the children spent time with their father at the farm.  By the April/May school holidays in 2005, the relationship between the husband and G was in tatters.  The husband had no contact with her until, on his evidence, he spent some time with her over the Australia Day weekend in 2007.  I and P continued to see their father. 

1. On 9 September, 2005 the wife filed an application in the Federal Magistrates’ Court, seeking parenting orders.  That was finalised by orders made, by consent, on 31 October, 2005 pursuant to which the children were to live with the wife.  I was to have contact with the husband on three out of four weekends, from Friday evening to Sunday evening, for a period after school on Wednesdays, and for two-thirds of school holiday periods.  G and P were to attend if they wished. 

1. On 3 March, 2006 the wife’s solicitors wrote to the husband’s solicitors requesting that he contribute to the cost of supporting the children.  The wife’s solicitors noted that as a child support assessment would be based on a relatively modest income, there would necessarily be a review of it.  Rather than go through that process, they proposed that the parties agree on a weekly payment of child support.  Although the husband’s solicitors acknowledged receipt of the letter, no proposals for child support were forthcoming.  There was no response to a subsequent letter from the wife’s solicitors dated 23 March.  On 13 April, 2006 the wife applied for an assessment from the Child Support Agency.

1. Pursuant to an assessment of 19 April, 2006 the husband was assessed to pay child support of $21.67 per month for the period 13 April to 22 December, 2006.  This was on a child support income of $1,919.  I accept the wife’s evidence that she provided a copy of the parenting orders of 31 October, 2005 to the Agency.

1. Some six months after the parenting orders were made, on 19 April, 2006,  the husband filed an application to vary the parenting orders.  In that application he sought an extension of the weekend contact with I until Monday morning, and an extension of the period after school on each Wednesday.  He also sought that the wife be restrained from attending at his residence and that if she were unable to care for I, she make arrangements for him to be the alternate carer. 

1. In a response filed on 30 June, 2006 the wife sought lump sum child support of $92,862 or, in the alternative, an order by way of departure from the current child support assessment, claiming periodic child support of $560 per child per month and non-periodic child support of $3,055 per annum in respect of each child’s school fees and associated expenses.

1. The husband then filed an amended application on 28 September, 2006.  In it he sought that P live with him, G live with the wife and I live in a shared arrangement between her parents’ homes, spending the time from the end of school on Thursday until the commencement of school on the following Monday with him each week, together with two-thirds of school holiday periods.  The only order he sought in respect of child support was that the wife’s application be dismissed. 

1. At that time P was 17 and nine months.  He was only a few months off completing Year 12.  He had been a weekly boarder at S College for some time, otherwise living in L and spending time with his father at the farm whenever he wanted.  Although the husband denied it, it is hard to see any basis for that application in respect of P, save a strategic one.

1. The husband then filed an application to review child support.  In his affidavit sworn 24 November, 2006 he was frank about his motivation, deposing :

   My application was motivated by the wife refusing to allow [I] to stay with me in January 2006 when she was, herself, overseas in Palestine in the school holidays.  She sent [I] away to the coast with a family friend against [I’s] wishes.  All [I] wanted was to be with [P] and myself at the farm and I had discussed this with the wife before she went overseas.  The wife point blank refused [I] to stay with me, claiming it was her time and she decided where [I] would be.

1. The husband annexed the new assessment to that affidavit, together with letters received from the Agency.

1. By letter dated 1 November, 2006 the Agency advised him that they had made a change to the child support records, having “new information about the care arrangements for [I]”.  The change of care arrangements noted “substantial care of [I] from 18 September, 2006”, with an explanation that substantial care means care of a child for 110 to 145 nights per year.  By a second letter of the same date, the husband was advised that although they had “received information about a change of care for [P]”, the child support assessment in respect of him would not be altered. 

1. No change to the children’s living arrangements was effected by any order made on 28 September, 2006;  the Agency’s statements may have related to legislative change.  On 28 September trial directions were made and an independent children’s lawyer appointed.  It was also the day on which the husband filed his application for orders that P live with him, and I live with him four nights in each week.

1. The assessment for P and G for the period 13 April to 30 June, 2006 remained $21.67 per month.  An assessment for the period 1 July, 2006 to 17 September, 2006 for P and G was for $26.67 per month.  From 18 September to 22 December, 2006 the husband was assessed to pay no child support in respect of the three children.  The last assessment, for the period from 23 December, 2006 to 12 July, 2007 for G and I, was also nil. 

1. It appeared from the evidence that as a consequence of his application to review, the wife was assessed to pay child support to the husband in respect of I’s substantial time with him.  Any such assessment was not part of the annexure to his affidavit which contained the various assessments I have referred to above.  It was no part of his case that there should be a continuing obligation on the wife to pay any sum by way of child support to him;  he deposed that he did not seek child support from the wife “as per the current assessment of her based on my time with [I]”.

1. The wife filed amended responses on 3 November, 2006 and 20 November, 2006;  the amendments went to the parenting orders sought, not the child support orders. 

1. On 13 February, 2007 the husband filed an amended application.  For the first time he sought specific orders in the nature of child support, rather than the dismissal of the wife’s application.  He sought that he pay one-half of G’s and I’s school fees at T, one-half of the children’s orthodontic and dental fees, one-half of the children’s clothing, school uniforms, footwear and associated school fees, and that the question of his child support be further reviewed following the expiration of the Drought Exceptional Circumstances Declaration period as it applies to his property at A.  They remained the orders sought by him before me. 

1. At the commencement of the hearing, counsel for the wife tendered a document containing her client’s then proposal.  In it she sought lump sum child support of $60,346.  In the alternative she sought periodic child support of $130 per child per week for I and G (backdated to 1 April, 2006), non periodic child support of one-half of I and G’s school fees and associated expenses (backdated to 1 June, 2006) and $3,000 as non-periodic child support for P for the period 1 June, 2006 to 23 December, 2006.

LEGAL PRINCIPLES

1. The Child Support (Assessment) Act 1989 (the “Assessment Act”) makes it clear that the parents of a child have the primary duty to maintain a child. Section 4 provides that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. The provisions relating to departure from administrative assessment in special circumstances are contained in Division 4 of Part VII of the Act.

1. Additional objects of the Divisions relating to departure and provision of child support other than by periodic payments to the carer include ensuring 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 that parents share equitably in the support of their children.

1. Counsel for the husband submitted that in making her application for lump sum child support, the wife was endeavouring to obtain a further property order, by improper means.  I reject that submission.  Having regard to the date of separation, and the financial arrangements which operated in respect of the children from that date until April 2006, she exercised considerable restraint in not seeking an assessment until April 2006. 

1. Although counsel for the husband complained of the wife not seeking a departure through the Agency (and then making an objection if it were disallowed) she did not submit that the Court should not hear the departure application. I am satisfied s.116(1A) of the Assessment Act does not apply, as at the time the application was made, the wife was a respondent to an application pending in this Court. When the case came before me in the November 2006 circuit I was satisfied that it was in the interests of the parties and the children to hear the applications together. They could not be reached in that circuit. The application for parenting orders having resolved, these applications remain to be determined.

1. Section 117(1)(b) of the Assessment Act provides that a court may make a departure order where it is satisfied in the special circumstances of the case that one or more of the grounds for departure mentioned in sub-section (2) exists or existed, and that it would be just and equitable (as regards the child and the parties) and otherwise proper to make a particular order.

1. The grounds for departure are set out in s.117(2).  In her case summary the wife relied on the following grounds :

   ·that, in the special circumstance of the case, the cost of maintaining the children are significantly affected because of high child care costs in relation to the child (being orthodontic expenses) - s.117(2)(b)(i);

   ·that, in the special circumstance of the case, the cost of maintaining the children are significantly affected because the children are being cared for, educated or trained in a manner that was expected by his or her parents (school fees and expenses) – s.117(2)(b)(ii);

   ·that, in the special circumstance of the case, application of the provisions relating to administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the husband for the children because of the income, property and financial resources of either parent, the earning capacity of either parent and because of payments and transfers of property made in December 2004 – s.117(2)(c)(ia), (ib) and (ii).

1. As noted, the husband too, sought departure from the administrative assessments in respect of G and I. I act on the basis that he, too, relied on the provisions of s.117(2)(b)(i) and (ii) as justifying the orders he sought in respect of the payment of school fees and other school related expenses, and orthodontic treatment. He, too, relied on s.117(2)(c)(ia), (ib) and (ii), albeit to different effect to the wife.

SPECIAL CIRCUMSTANCES

1. The requirement to find special circumstances in the case is intended to emphasise that the case must establish something which is special or out of the ordinary, given that the Court should not interfere with the administrative outcome in the ordinary run of cases :  see Gyselman (1992) FLC 92-279; Sheahan (1993) FLC 92-375 and Hides v. Hatton (1997) FLC 92-759.

1. Neither counsel submitted that special circumstances did not exist, sufficient to justify the relevant requirement.  I am satisfied special circumstances do exist, having regard to the effect of the final property orders made, the financial arrangements of the husband, the nature and extent of the parties’ assets and the inequity that would result were child support to be assessed only on the parties’ taxable incomes.

HUSBAND’S FINANCIAL POSITION

1. Having regard to the orders he sought and his oral evidence, the financial statements sworn by the husband on 31 August, 2006 and 23 October, 2006 must be taken with a grain of salt.  In the first he deposed to a total average weekly income of $37, total expenditure of $76 and additional weekly expenditure of $337, of which $245.50 related to the children.  Those figures are repeated in the second financial statement. 

1. As it has for many years, the farm runs out of an overdraft, with a limit of $140,000.  This fluctuates markedly throughout the year.  When the husband swore a financial statement on 23 October, 2006 he estimated it at $90,000;  it was down to $57,002 in November 2006;  on the day of the trial it stood at $73,701.  Its peak in recent times was $118,855 in June 2006;  on 28 February, 2006 it was around $14,000.  The husband’s evidence was that wool sale funds are due in February, March and July.  Most stock (he runs a beef cattle and sheep enterprise) is sold in spring, however sales in May/June are now a normal part of his program.

1. The husband’s evidence was of undertaking a farm build up program and putting a lot of money into the farm.  Farm and personal expenses are met from the overdraft. 

1. The husband has modest superannuation benefits of $26,377, which are static.  The prospect of increasing that sum is slim.  He valued the farm property at $1,600,000 and has an interest only bank bill at NAB of some $520,000.

1. There are a number of factors which support a finding that the husband has the capacity to pay child support as sought by the wife.  First, in these proceedings he relied on an affidavit sworn by him on 27 September, 2006 insofar as it responded to a number of paragraphs in an earlier affidavit of the wife, relating to child support.  The relevant part of his affidavit starts on page 6 and commences :

   From the time of separation I have requested that the children live with me and that I be financially responsible for them.  This has been refused by the wife.

1. I accept that, had the three children lived with the husband from separation in September 2004, the wife would have been assessed to pay child support for them.  However, having regard to their considerable expenses (including but not limited to educational and dental expenses), the husband’s financial responsibility over and above such child support would have been considerably more than the sum now sought by the wife.  Nevertheless, the husband deposed to his readiness (and thus I can assume his capacity) to undertake it. 

1. Second, the husband’s evidence was of spending some $47,000 on legal fees in the course of these proceedings, which commenced in April 2006.  Even were the figure put to him by counsel for the wife ($40,000) to be correct, that is a very significant sum, and one he has been able to find without the farm overdraft going above its limit.

1. Third, the orders sought by the husband demonstrate the inappropriateness of relying on his statement of financial circumstances as an indicator of his capacity to pay. 

1. The husband’s case was opened on the basis that he would pay half of G’s orthodontic work (half being $2,647.50) within 30 days.  He would pay half the sum already paid for I’s orthodontic work, and half of the monthly instalments (of $400 per month) for the balance of I’s treatment.  His total liability for orthodontic work would be $5,145.  His acknowledged capacity was to pay over half of that almost immediately, and $200 a month until the balance was paid. 

1. He was also prepared to pay half of the girl’s school fees at T, from the commencement of 2007.  The fees for G and I are $6,566 for 2007, taking into account the 20% sibling discount which applies so long as both are at the school.  Half of the fees amounts to $3,283, or $63 per week.

1. The calculation on which the wife based the lump sum sought (set out on pages 4 and 5 of her case summary) averaged the fees for the girls over the balance of their schooling at $2,600 per annum, well below the actual figures.  This was a reasonable course, having regard to the necessity for a discount were a lump sum payment to be made.  However, the orders sought by the husband would require him to pay half of the actual fees, which, unsurprisingly, have risen over past years (see exhibit W7) and can be expected to continue to rise in the future. 

1. In addition, the husband sought to pay “one-half of the children’s clothing, school uniforms, footwear and associated school expenses following receipt by him of details in relation to same”.  In her financial statement dated 3 November, 2006 the wife deposed to spending $75 per week on clothing and shoes for the children, $45 per week on “children’s activities” (which may include school activities) and $45 per week on entertainment/hobbies (which may also include a school component).  These figures were for the three children.  While the Court cannot quantify the amount he would be required to pay were an order made in the terms sought, it could be a considerable sum.  The accounts from T show numerous extras, whether for school diaries, insurance or excursions. 

1. The husband’s evidence was of a discussion with P about paying his current TAFE fees, and a willingness to do so, again indicative of a capacity to find money if necessary.  Despite that evidence he has made no attempt to pay those TAFE fees;  they and P’s other necessities for the course have been paid by the wife. 

1. Fourth, the husband has been eligible for drought relief for, on his evidence, “several years”.  His farm is in a declared EC zone and since that declaration he has been eligible to apply for interest relief and a Centrelink payment.  I accept the wife’s evidence that during the marriage, the family did apply for similar benefits when able to do so in the early 1990s.  Notwithstanding his allegedly precarious financial position, the husband made no application until 1 February, 2007, the month in which the parties’ applications for parenting and child support orders were listed for hearing. 

1. The husband’s evidence was of spending a day completing the necessary forms, with the assistance of a rural counsellor;  two applications were in evidence.  In the claim for Centrelink drought assistance the husband included the three children as “dependent” on him, despite the clear statement that “a child is considered to be dependent if they are wholly or substantially in your care”.  He included (in response to a separate question) P as a dependent child “over 18 but under 22 who is in fulltime education”, despite the same clear definition of dependent.  The husband gave no answer to the question “Do you share the care of any of these children with anyone else?” and did not fill in the section provided in which to specify the child and describe the shared arrangements in place.  Anyone reading the form would assume that the three children live on the farm and the husband is solely financially responsible for them.

1. The husband’s evidence had been that the figure for stock in his financial statement (contained in part O) of $346,070 did not represent current value of the stock, having regard to the drought and the stock’s loss of condition.  He did concede that in his application for an interest subsidy, he valued his stock at $357,350, a figure higher than that to which he deposed on 23 October, 2006.  The husband made a half-hearted attempt to place responsibility for that on the rural counsellor who assisted him, but it is more likely he sought to paint a picture of his finances which was as grim as possible.  He also conceded he had not been forced to sell stock as a result of the drought.  Having said that, I do not doubt that he has been adversely affected by the drought, and take that into account. 

1. I do not find that the husband made the applications for interest subsidy and Centrelink payments as part of a strategy relating to these proceedings.  I can and do find that his financial position since the EC declaration was made has not been so dire as to compel him to make the application earlier, and that if he is successful in his application, he will be in receipt of an interest subsidy and Centrelink payments, which will improve his financial position and cash flow. 

1. I take into account the husband’s costs of travel to L to collect and return I.

WIFE’S FINANCIAL POSITION

1. The wife is a member of the Australian parliament.  She receives a salary of $2,287 a week, and a parliamentary secretary’s allowance of $571 a week.  In addition, she receives an electorate allowance of $761;  if that is not expended on expenses incurred in the course of her work within the electorate, the balance is taxable in her hands.  This is a significant income, however she has significant expenses.  These include tax of some $954, a contribution to superannuation of $328 and a mortgage liability of $513 per week. 

1. I take into account the various benefits the wife receives in consequence of her employment, to which she deposed, and the fact she is entitled, in broad terms, to take each of the children to Canberra three times a year.

1. Expenses for the wife and the children are set out in Part N of her financial statement, totalling $1,400 per week.  These include $150 per week for an au pair, a student who assists when the wife is in Canberra or on other work related business.  I am satisfied it is appropriate for her to maintain the expenditure, as she deposed;  although P is now 18, it is not his job to supervise his younger sisters before and after school, assist them with homework, ensure they eat well and appropriately, and oversee their social and recreational engagements. 

1. Pursuant to the property orders the wife retained an apartment in Canberra, as well as the home in L.  The Canberra property was negatively geared and tenanted, although there was a period when no rent was received and the wife had to take the tenants to the Tenancy Tribunal.  That property was sold for $285,000 in 2006, with settlement on 25 October.  At settlement just under $117,000 was paid off the mortgage and the wife received $158,671 of which she retains $120,000.  I accept her evidence that the balance went on expenses, including school fees, orthodontist bills, a Visa account of $18,000, and personal living expenses for her and the children.  She has felt obliged to use capital to maintain the children.  Her evidence was that at least $25,000 of the balance will go on capital gains tax;  she may use the then balance to reduce the mortgage over her L home, or spend it on renovations to that home, necessitated by the children’s ages and stages. 

1. The L home is worth approximately $390,000 and the present mortgage is $283,000; the figure of $163,000 for the mortgage in her financial statement was calculated on the basis that the $120,000 proceeds of the Canberra property (currently in a parallel account) were credited against the mortgage debt.

1. The wife is a member of two superannuation schemes.  Her interest in the Public Sector scheme is valued at $90,219.  The parties did not agree on the value of her entitlement under the Parliamentary Contributory Superannuation Scheme.  Over objection, I allowed a valuation of her interest in that scheme to be admitted into evidence, having been advised it was prepared by Ms K of F Services.  It valued her interest at $580,364.01.  Ms K did not swear an affidavit and was not cross-examined. 

1. The wife’s evidence, which I accept, is that in order to access full benefits under that scheme she must serve the whole of three terms.  She is presently in her second term.  Thus, to gain the full benefit of her parliamentary pension she must gain pre-selection and stand for re-election, successfully contest the election, and serve the whole of a third term.  The decision to put herself forward is hers, but the outcome is in the hands of others.  She may in due course access superannuation benefits as described by Ms K, but she may not.  The wife’s evidence was of making her own enquiries about her superannuation entitlements under this scheme were she to retire.  She tendered the data supplied, which noted that the entitlements are gross, before taxation.

1. At 30 June, 2006 her total gross benefit (being contributions plus Commonwealth supplements) was shown as $139,829.94 (voluntary) and $201,956.80 (involuntary).  After surcharge reduction, the respective figures are $133,347 and $192,258.  At 30 June, 2007 the total gross benefit (voluntary) would be $168,320 and $258,954 (involuntary).  The reduced benefit would be, respectively, $164,227 and $249,570.  The Court can be confident that she would receive a sum of this sort were she to retire, whether voluntarily or because not pre-selected, or returned.  In reaching a decision I take account of the potential for the wife to have access to very significant superannuation benefits if she is re-elected and does another full term. 

1. The wife continues to support P, who lives in her L home.  He is undergoing a pre-apprentice course in electrical trades and hopes to obtain an apprenticeship.  If he does, he will be paid and continue to study one day a week at TAFE.  At the moment he is in receipt of no income, as he has no employment.  The wife has paid his TAFE fees and other course expenses and supports him.  He continues to spend time at the farm and when he is there his father provides for him.  As he is over 18, I do not find the wife’s capacity to pay is reduced pursuant to s.117(2)(a)(i), as the duty to maintain contained there must be a legal duty, as distinct from a moral one.

1. I take account of G’s own income, from her part-time job, as well as the fact that the husband has expended nothing on her support since April/May 2005, as she spends no time at the farm or with him.  It is to be hoped that will change and, if it does, he may incur some expense by, for example, taking her to dinner in L, as he deposed to regularly doing with I in the past. 

1. The periodic child support sought by the wife is $130 per child per week, an annual rate of $6,720 per child.  She did not seek an annual adjustment to that figure.  The amount the husband was prepared to pay for orthodontic treatment is equivalent to about 75% of one year of such child support, for one child. 

1. Putting aside their share of fixed expenses, the wife deposed to average weekly expenses of the three children of $1,105.  Deducting school fees (as they are being considered separately) those expenses total $775 or $258 per child.  That includes no part of the mortgage payments of $513 per week. 

1. The Lee Scale for the quarter ending August 2006 confirmed the cost of maintaining children aged 11 to 13 (the highest category in the scale) in Australia (including education costs but excluding school fees) to be $348.71 per week.

CONCLUSION

1. I am satisfied the husband has had, and continues to have, the capacity to pay the periodic child support sought, of $130 per week, per child.  The order will be back-dated to the commencement of the original assessment.  The obligation to pay child support for G will conclude at the end of the school year in 2008 and for I at the end of the school year in 2011, assuming both girls complete their last year of secondary education after turning 18. 

1. I add that I have considered whether the periodic amount should be reduced and an order made (in the terms sought by the husband) requiring him to pay additional amounts by way of non-periodic child support, being children’s clothing, school uniforms, footwear and associated school expenses.  The orders sought required receipt by him of details prior to payment.  Having regard to the evidence of the difficulties the parties have had in communicating with each other, I find that it would not be prudent to make child support orders which would require negotiation between the parties and leave scope for disagreements about what is, and what is not, reasonable expenditure.  The wife has met these expenses in the past and I am satisfied she will continue to meet them, using funds available to her, whether by way of child support or otherwise.

1. I am satisfied an order in the terms sought is just and equitable, having considered the factors set out in s.117(4).  It is also proper (within the meaning of s.117(5)), having regard to the parents’ primary duty to maintain their children.

SCHOOL FEES

1. When the parties were together the children’s school fees were paid from joint income.  Since separation in September 2004, the husband has contributed not one cent towards their school fees.  His explanation, or perhaps justification (that he had not been asked) was risible.  First, P was a weekly boarder at S College, and the girls attending T, prior to separation.  He knew they remained at those schools.  He saw all three of them until April/May 2005, and continued to see P and I.  Accepting that his relationship with P and I is as good as he says, it is inconceivable they would not have spoken to him about their school activities, including the various school excursions which are itemised on accounts in evidence. 

1. Second, his response after being assessed to pay child support at the minimum rate was to seek a review, for reasons which had nothing to do with the necessity to support the children;  on his own version, his motive was to punish the mother for not allowing him to spend additional time with I.  His concern for I did not extend to offering to pay anything towards her education expenses at a school which she loves. 

1. Third, it was not until he filed an amended response on 13 February, 2007 that he made any offer to pay anything other than child support as assessed.  Nothing in his evidence suggested that his financial position on 13 February, 2007 was any better than his financial position on 28 September, 2006, when he sought that the wife’s application for departure be dismissed. 

1. The husband acknowledged a capacity to pay G and I’s fees and associated expenses from 2007 until each finishes school.  That needs to be seen in context, which did not include the concurrent payment of periodic child support. 

1. I am satisfied the husband had and continues to have the capacity to contribute half of the girls’ fees.  The wife sought he also pay half of their “associated expenses”.  For the reasons advanced earlier, I am satisfied the order should be clear on its face and leave no room for debate about whether an extra on the T account is or is not “an associated expense”.  This will mean that the wife is responsible for more than half the costs of their education but I am satisfied the alternative is likely to lead to further conflict and, potentially, litigation, which would impact adversely on the whole family, emotionally and financially.

1. In respect of P I am satisfied the husband should contribute $3,000 by way of child support for the period 1 June to 23 December, 2006, being approximately half P’s fees at S College for the second half of 2006.  The wife has not sought to backdate that to the date of the original assessment in respect of which she sought departure, which would have added most of another school term to the figure.  Nor do I make any order for periodic child support for P during that period. 

1. As with the order for periodic support, I am satisfied orders in these terms are just and equitable, and otherwise proper.

LUMP SUM PAYMENT

1. I have considered whether the child support ordered should be paid in a lump sum. Section 141(1) of the Assessment Act provides the means for the Court to fashion orders to accommodate the particular circumstances of parties, and there is power to order that child support be paid in a lump sum, whether in one amount or by instalments; see s.141(1)(a). Having regard to the nature and purpose of child support, that is done rarely. It may be appropriate if there is a history of non-compliance with earlier orders or the parties’ financial circumstances are such to render it the preferable option because it is more likely to meet the objects of the legislation.

1. The husband’s evidence is that when he was assessed to pay child support, he paid it regularly.  It is true it was a minimal amount, but it was paid.  His counsel submitted that there was no evidence to suggest he would do other than comply with the terms of a fresh child support order and I proceed on the basis that he will so comply.  In these circumstances, I do not find it appropriate to make a lump sum order. 

SECURITY FOR PAYMENT

1. The wife had sought, if a lump sum payment were ordered, that the husband be restrained from dealing with the farm pending the payment, together with an order providing for the sale of the farm to meet the outstanding debt, if necessary.  A lump sum has not been ordered so I need not consider aspects of that submission.  However, in her summary of argument, the wife sought that the child support liability of the husband be characterised as a charge against the farm, and documents signed to allow the wife to lodge a caveat over it. 

1. Section 141(1)(d) provides that the Court may order that payment of an amount be wholly or partly secured as the Court specifies.  Section 141(1)(e) allows the Court to order the execution of any necessary document to enable an order to be carried out effectively or to provide security for due performance.  I do not propose to enjoin the husband from dealing with his farm and finances as he sees fit.  However, I am satisfied his liability for child support should be charged against the farm.

1. The Child Support Agency is not responsible for collecting non-periodic amounts;  it is charged with that obligation in respect of periodic payments.  By lodging a caveat the wife can be assured of advice were the husband to remortgage, or sell all or part of the farm.

1. The caveat will be discharged when the liability to pay child support for I ceases.  It will not interfere with the running of the farm but will ensure the wife is advised if the husband seeks to sell all or part of the farm.  If that occurred at a time the husband was in arrears she might well then be successful in an application to capitalise the husband’s remaining child support obligations. 

COSTS

1. In their applications, each of the parties sought costs.  I will make orders providing for the filing of written submissions if a party seeks costs.

I certify that the preceding
78 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LUCK & LUCK