M and C
[2002] FMCAfam 251
•8 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & C | [2002] FMCAfam 251 |
| CHILD MAINTENANCE – Application by father to vary order. Family Law Act 1975, ss.66B, 66C, 66H, 66J, 66S, 66K Coon and Cox (1994) 17 FLR 692 |
| Applicant: | G L M |
| Respondent: | P C |
| File No: | (P)DNM2080 of 2002 |
| Delivered on: | 8 July 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 8 July 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowen |
| Solicitors for the Applicant: | Cecil Black |
| Counsel for the Respondent: | Ms Truman |
| Solicitors for the Respondent: | Halfpennys |
ORDERS
That as of the date of these orders the father, G L M, pay to the mother, P E C, the sum of $75 per week in respect of the maintenance of the child of the relationship, S L C, born 29 February 1988, of which $35 is attributable to the special needs of the child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM2080 of 2002
| G L M |
Applicant
And
| P C |
Respondent
REASONS FOR JUDGMENT
Introduction
These are ex tempore reasons for judgment in the matter of G L M and P E C.
The applicant in these proceedings, which relate to periodic child maintenance, is G L M and I will refer to him in these reasons as ‘the father’. The respondent to the proceedings is P E C, and I will refer to her as ‘the mother’.
Until recently, the father has been acting on his own behalf. For that reason, he commenced these proceedings, in error, with a Form 63 application on 3 December 2001. He has since filed a Form 12 application on 8 March 2002. That application, which was handwritten, does not indicate what orders the father seeks.
However, at the hearing before me today, 8 July 2002, he is represented by a solicitor, Ms Bowen, and on 5 July 2002 an affidavit was filed on the father’s behalf. In that affidavit the father indicates that he seeks an order varying a maintenance order dated 9 June 2000 by which he has to pay the sum of $125 per week maintenance in respect of one child, S L C. He seeks an order that the amount of maintenance ordered on 9 June 2000 be reduced to $40 per week.
It is the mother’s position that that application should be dismissed.
Background
By way of background, it is clear to me that the parties in this matter never married. However, they apparently lived together between 1976 and 1979, and once again between 1986 and 1988. They are the parents of one child, S L C, who was born on 29 February 1988. So S is currently 14 years of age. S lives with her mother in Seymour in Victoria, and the father lives in Darwin.
These are proceedings that are governed by Division 7 of Part VII of the Family Law Act. In the jargon of family lawyers, they are a
Stage 1 matter. That is, they are not governed by the Child Support Assessment legislation other than in respect of the collection of the maintenance. The law applicable to Stage 1 matters is set out in the Family Law Act.
On 9 June 2000, Ms D. O’Reilly, a Magistrate sitting in the Seymour Magistrates’ Court, made an order in respect of the maintenance of S. Pursuant to Order 2 of those orders, the father was ordered to pay to the mother for the maintenance of the child, S L C, born 29 February 1988, the sum of $125 per week of which $75 is attributable to periodic child support of the child and $50 is attributable to the special needs/disabilities of the said child.
It is that order that the father seeks to vary and the variation that he seeks is that the maintenance should be reduced to $40 per week.
There is no argument between the parties that S is a child with special needs. She has both physical disabilities and behavioural problems. The mother has set out some of the difficulties that S suffers, in an affidavit that has been filed on her behalf.
She has a lowering of the outlet valve from the right side of her heart. As a result, she is susceptible to infection and, given her heart disability, great care has to be taken to prevent her catching cold. She needs to be kept warm. As I understand it, it can get fairly cold in Seymour in Victoria in winter. She also may have to have heart surgery in future.
S also has twisted feet and, as a result, she sees a podiatrist from time to time and has orthotics made for her. She has to have regular changes of shoes and, needless to say, there are expenses which relate to seeing the podiatrist and having orthotics made.
She is also a child who needs some orthodontic work. She needs to have braces applied to her teeth and it is anticipated that she is going to have some treatment in this regard at the Dental Hospital in Melbourne. The minimum sum that will be necessary for that treatment, if the majority of the cost is covered by the Dental Hospital, will be $1,500. In other words for S to have the orthodontic treatment she requires, the sum of $1,500 will have to be found.
It is also clear that S has a learning disability and has some behavioural problems. It seems she has an obsession with fire and she also runs away from home. As a result, she needs constant supervision.
Because of her heart problems, she has to wear a heart monitor to make sure that her heart rate does not become unduly elevated. If she does become over-active, the alarm sounds and she knows to calm down.
They seem to be S’s main difficulties. I have no difficulty in finding that she is a child with special needs. To his credit, it is not the father’s position that he would seek to persuade me otherwise than that she is a child with special difficulties.
When the order of 9 June 2000 was made, the father was the owner of a business called NT L and I. That business was apparently operated by a company known as U Pty Ltd of which the father was the controlling share holder. It is common ground between the parties that on 14 August 2001 U Pty Ltd was placed into administration. It is the father’s position that, as a result of U Pty Ltd being placed into administration, that his financial circumstances have changed markedly.
He argues that his weekly salary has dropped to such an extent that he is no longer able to pay the maintenance of $125 per week, as was ordered by the Seymour Magistrates’ Court. This is the basis of his application.
He has deposed in his affidavit material that he now receives a gross income of $615 per week. It is common ground, again between the parties, that the order of the Seymour Magistrates’ Court was registered for collection with the Child Support Agency and apparently, as a result of that, the father’s wage has been garnished and that garnishment began around the middle of November of last year. That, again, seems to have been one of the primary motivations for the father bringing this application.
Evidence
The hearing before me in respect of this matter took place on 8 July 2002. By way of evidence, the father relied on his Form 12 application filed on 8 March 2002, and an affidavit that was filed on his behalf on 5 July 2002. He gave evidence in the proceedings and was cross-examined by counsel for the mother, Ms Truman.
The mother relied on three affidavits that she has sworn, which have been filed on 14 February 2002, 16 May 2002 and 4 July 2002. She also, at an early stage in the proceedings, filed a statement of her financial circumstances on 14 February 2002. However, that statement of financial circumstances has been overtaken to a large extent by her affidavit of 4 July 2002, which sets out, in some detail, her weekly expenses in respect of both herself and S.
I consider that both parties were honest witnesses. The father is not a sophisticated businessman by any means. It was apparent, during his evidence, when he was asked to consult a number of documents that he is not able to read with any great facility. He has had rudimentary education. Certainly he has no formal accountancy qualifications. In a real sense I considered him a financial naif. However, in spite of his lack of education and literacy skills, he is no fool. He learnt the air conditioning and lagging trade from the bottom up. He is a self taught tradesman who established a successful business. He entrusted the financial affairs of his business to a bookkeeper. This bookkeeper stole considerable sums from the business and caused it to go under. Other than being gullible and failing to properly supervise the bookkeeper, the failure of the company was not due to any conduct on the part of the father.
Clearly, the mother has had the major responsibility for the up bringing of S. She has done this alone. It cannot have been a easy row for her to hoe. She has deprived herself of much to provide for S.
Applicable law
As I say, these proceedings fall to be determined under Division 7 of Part VII of the Family Law Act 1975. Before the court can vary an order relating to child maintenance so as to increase or decrease any amount ordered to be paid, it must be satisfied that the facts of the case fall within the provisions of section 66S of the Family Law Act. In particular, 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
(i)the circumstances of the child have changed so as to justify the variation or
(ii)the circumstances of the person liable to make payments under the order have changed so as to justify the variation or
(iii)the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation or
(iv)in the case of an order that operates in favour of or is binding on a legal person or representative, the circumstances of the estate are such 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 it so doing;
(c)if the order was made by consent, that the amount ordered to be paid is not proper or adequate;
(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.
In this case it seems clear that the father relies on the second circumstance set out in section 66S(3)(a) that his circumstances have changed to such an extent to justify the variation.
As I have already said, U Pty Ltd was placed into administration on 14 August 2001. I accept the father’s evidence that when the company was placed into administration, the administrator terminated his employment. I also accept that the company was sold to another company for the sum of $59,733.13, but that the father himself received none of this sum.
I have been provided with some evidence from the administrator, a Mr Taylor of Grant Thornton, a firm of accountants. I have been provided with the statement that was provided to the Australian Securities and Investment Commission, after the company had been placed into administration. This statement reveals that U Pty Ltd had unsecured creditors of about $489,000 and, after the sale of its plant and equipment, there was a deficiency of some $366,000.
I also accept that the father has commenced employment with the corporate entity that has purchased NT L and I from the administrator. I accept his evidence that he has nothing to do with the purchaser of the company and the business, other than that he is an employee of the company. He was taken on because of his experience in the air conditioning and lagging industry. He has no financial relationship with this company other than that of employee. He is not entitled to share in its profits. He is not a share holder or partner. I accept his evidence that he began employment with the new firm at a salary of gross per week $615, which equates to a salary of just under $32,000 per annum.
I have been provided with evidence that prior to the company being placed into administration, the father was receiving a gross weekly income of at least $859.15 per week, which, on my calculations, equates to a sum of $44,675 per annum. However, in his evidence the father indicated that he was receiving, prior to the company going into administration, an annual salary of $64,000. If this latter sum is correct, it means that his income has effectively halved.
In those circumstances it is my view, and I find, that the father has overcome the hurdle as posed by section 66S. In my view, he has demonstrated that his circumstances have changed so as to justify some variation of the order. In my view, it would be unrealistic to hold otherwise, given that he has changed his circumstances from being the proprietor of a company operating a business, which guaranteed him an income of at least $45,000, to becoming an employee of another company with an income of $32,000.
It is also the position that since the company was placed into administration he has incurred debts in respect of that administration. In particular, one of the creditors of the company is a firm known as Urethane Systems Pty Ltd. That company is owed $13,407.90 by NT L and I. However, prior to U Pty Ltd, trading as NT L and I, being provided credit by Australian Urethane Systems Pty Ltd it was a requirement that the father provide a personal guarantee in respect of any goods sold on credit. While I have not been provided with a copy of the guarantee, I accept the father’s evidence that there is such a guarantee. After all, such things are normal commercial practise. So the father has a liability to that firm for $13,500.
He also has a debt to the Australian Taxation Office of $18,985.85. Documentary proof has been provided of that debt and a notice has been provided to the father on 24 January 2002 that interest is being charged by the ATO in respect of that sum.
As a result of those matters, although a bankruptcy notice has not been issued, the father himself anticipates that it is not beyond the bounds of possibility that such a notice will be served upon him.
For those reasons, I accept that his circumstances have changed to justify the consideration of the variation in pursuance of section 66S(3) of the Family Law Act.
As I say, the relevant law in respect of child maintenance orders is set out in Division 7 of Part VII of the Family Law Act.
Section 66B sets out the principal objects of the division. These objects include ensuring that children receive a proper level of financial support from both 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.
Section 66C places the primary duty of maintaining children upon the parents of these children. This duty has a priority over all other commitments a parent has, other than those commitments necessary to support himself or herself, or any other children he or she has a duty to maintain. Thus, in the present case, the duty to support S resides solely with Mr M and Ms C. I must ensure that this duty is met, as far as possibly, equally by both Mr M and Ms C from shares in their respective incomes, earning capacity, asset and financial resources. In essence, the law requires parents to share the burden of maintaining a child according to the level of their respective means, so far as this is equitable.
In this day and age, the cost of raising a child is substantial. The consequences of this is that parents must often make sacrifices to ensure that each of them makes an equitable contribution to the financial support of their children.
The approach the court must take in assessing a child maintenance order is set out in section 66H. It is essentially a two-step process. Firstly, the court must consider the level of financial support necessary for the maintenance of the child; secondly, the court must determine what contribution each parent should make to providing that financial support. In this regard, reference is made to the case of Coon and Cox (1994) 17 FLR 692.
The financial support required by S
Section 66J deals with this first step and provides a list of the matters which the court must consider in reaching a determination as to what is the appropriate level of financial support required by the child concerned.
These matters include having reference to the objects of the division expressed in section 66B, which, as I have indicated, emphasises the duality of parents’ roles in providing financial support for their children. The court must also take into account the proper needs of the child, bearing in mind the child’s age, the manner in which he or she is being educated, and any special needs that the child may have.
In assessing those proper needs, the court must take into account any income, earning capacity, or financial resource of the child herself and may have regard to published research in respect of the issue of maintenance of children in general. The court, however, is specifically prohibited from taking into account the entitlement of the child in question to an income-tested pension, allowance or benefit.
S is 14 years of age. She is a secondary school student. She has no income herself, and there is no evidence to indicate that she is likely to have any income in either the near or distant future.
In her most recent affidavit sworn on 4 July 2002, the mother has estimated the cost of maintaining S as being $323 per week. This includes S’s share of the rent of the premises she shares with her mother. It includes her anticipated medical and dental expenses, a modest amount for child-minding, and some estimations of books and educational aids that S needs.
As I have already said, section 66J(2)(b) provides that:
The court may have regard to any relevant findings of published research in relation to the maintenance of children in reaching a conclusion as to what is the financial support required for any particular child.
In this context, regard is generally had to two pieces of such research: the Lee Scale and the Lovering Scale.
In 1984 Kerry Lovering of the Australian Institute of Family Studies, in a paper entitled ‘Costs of Children in Australia’, published tables relating to the costs of raising children based on a ‘basket of goods’ approach. Included in the basket were food and clothing, fuel, household provisions and so on and so forth.
In 1989 Donald Lee of Deakin University, working under contract to the Australian Institute of Family Studies, published tables relating to the cost of children, based on an expenditure survey approach.
In Coon and Cox, to which I have referred already, Nicholson C.J. indicated a preference for the Lee Scale as being a more accurate approach. He said:
“…the Lee scale published by the Australian Institute of Family Studies… is an approach which I consider realistically takes into account the many and varied and often hidden and neglected costs of maintaining children by custodial parents. It is, I think, a more comprehensive approach than the calculations which go to compromise the Lovering scale which has several important and acknowledged omissions, for example, housing, medical and dental expenses, transport and school uniforms…”
At the present time, the Lovering Scale gives, as the cost of maintaining a child of S’s age, $86.29 per week. The Lee Scale gives us the cost of maintaining a child of S’s age as being $267.86.
Bearing in mind that S is a child who has special needs, and, in particular, is likely to incur greater than normal fuel bills and has orthodontic and orthotic expenses, in my view the estimate provided by the mother of $323 per week does not appear to be an unreasonable one.
I bear in mind that it is difficult to accurately calculate such a sum down to the last dollar, but a sum in the vicinity of $300 would not appear, to me, to be an unreasonable sum of money. So to my mind, the reasonable cost of meeting S’s financial needs would be met by a sum in the vicinity of $300 per week.
The more difficult aspect of this case is to determine how the provision of this weekly amount is to be divided between Mr M and Ms C, bearing in mind the strictures of the Family Law Act. This will necessarily call for some analysis of the respective financial positions of each of the parties.
The financial situation of the parties
The second step in the process of deciding this matter is to fix the amount each parent should provide towards meeting this amount of financial support.
The relevant considerations in this regard are set out in section 66K of the Family Law Act. Again reference must be had to the over-riding objectives of the Division and the priority the law gives to the maintenance of a child over all other expenses a parent may have other than necessary expenses to maintain himself or herself. Specifically the section provides that in determining the amount of financial contribution each parent is to make the Court must take into account these matters:
66K (1) The income, earning capacity, property and financial resources of each of the parties; the commitments of the parties or each of the parties that are necessary to enable that party to support himself or herself or any other child or another person that the person has a duty to maintain; (d) the direct and indirect costs incurred by the parent with whom the child lives in providing care for the child; (e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
As I say, by necessity this exercise involves a comparison of the respective financial positions of the parties.
In my view, the evidence of the father that he receives a weekly income of $615 gross per week was not seriously challenged. His major weekly expense is a mortgage payment of $205 per week. The father has given evidence that he purchased a unit at 8/14 G Crescent, L, in February of 2000. He lives in the unit. He purchased the property for $145,000. He has a liability for a mortgage in respect of the property of $128,797, so he has some modest equity in the property. He has some furniture and household effects.
As I have already indicated, he has considerable liabilities. The principal one is the sum of just under $19,000 that he owes to the Taxation Office. Although it is not precisely clear what Australian Urethane Systems Pty Ltd propose to do in respect of the guarantee, as I have already indicated, I would anticipate that they are more likely than not to want to be paid the amount that is guaranteed by the father.
The father deposed that he has a number of credit card debts. He owes the National Australia Bank $3100, and the Westpac Bank $634. There are also some arrears of maintenance due to the mother. She indicated, in her evidence, it was her belief that those sums were between $1700 and $1800.
In my view, the evidence indicates that the current liabilities of the father exceed the equity he has in his unit, and other assets that he has. He does not own a motorcar. I accept his evidence that a friend has lent him a car, although he is liable to pay maintenance and registration costs in respect of the car.
In his evidence, the father indicated that he is liable at the moment to pay Austar Cable Television $15 per week, the National Australia Bank bankcard $4.50 per week, petrol of $35 per week, registration in respect of the car he has the use of $10 per week, mortgage to the Bank of South Australia $200 per week. He is liable to pay power of $25.70 per week, telephone of $8 per week, and body corporate fees of $28 per week.
He also has a child from another relationship, L L, who was born on 6 April 1994. He deposed that he is liable to pay child support in respect of L of $30 per week.
I have not been provided with any documentary evidence in respect of this child support. I do not know whether it is as a result of a private agreement between the father and L’s mother, or whether it is pursuant to an assessment. I presume the former, given the amount.
As has already been pointed out, he has a liability for maintenance to S of $125 per week. Adding these sums, it reaches a total of $481.20. The father also has a liability for tax on his income of $615 per week, and at the present time that is an amount of $121 per week.
The father himself is now 45 years of age. He left school at 14. He has not done an apprenticeship, but he has been involved in and around the air-conditioning and insulation business for many years. It seems to me that he is quite a talented person in that field, and I accept that he has learnt that trade by doing it.
However, he is not particularly apt in terms of the keeping of his business records, and it is as a result of the dishonesty of the bookkeeper to whom reference has earlier been made that he is in the dire financial straits he is presently in.
In the past he has operated plant and machinery outside of Darwin. I am not provided with any evidence as to what such people earn by way of income, but the father indicated in his evidence that he does not want to work in that way.
There are apparently two firms in Darwin who are involved in lagging and air-conditioning work. Firstly, the company by whom the father is presently employed, and another company called M E. I accept the father’s evidence that he, firstly, has no wish to work for M and, secondly, even if he did, that he is unlikely to be employed there due to the fact that the proprietor of M is apparently a person whom he sacked from employment in the past.
I accept the father’s evidence that he counts himself fortunate to be offered the position that he has with the firm that purchased NT L and I, and that at the present time, the income he is currently receiving is likely to be the most income that he can look to receive, at least in the short term. In my view, it is far from certain that he could get other more remunerative work elsewhere, and it seems to me that he is doing work in the area in which he has expertise over many years. The father has also been criticised that he is not renting out a spare room at his home. It is true that he could perhaps gain some rental from this room and boost his weekly income. He deposed that he has tried to do that.
In my view, the father was not a dishonest witness or one who tried to bend the truth. At times he gave answers that were perhaps not in his interest. He struck me as being a simple person, not particularly sophisticated in the ways of the financial world. I do not accept that he has fashioned his affairs to avoid his liabilities to support his child, S.
Similarly, Ms C gave evidence by way of telephone. No doubt she is an honest, hardworking and decent person. I have absolutely no doubt that she has made enormous sacrifices for S. I have absolutely no doubt that she has borne the vast majority of the burden of caring for S, and that must be very difficult for her to do.
She has a very hard row to hoe. She is a single parent and poor S has all sorts of difficulties in the world. Ms C is, without doubt, doing it tough. She is living in accommodation with S rented from the Housing Commission.
I was provided with evidence of her income. She works a few days per week as a nursing attendant at a local hospital. She receives $162.50 per week gross. If she works more hours, it has ramifications for her tax position and also for the amount of government benefits she receives in respect of her daughter.
The possibility of Ms C ever owning a house are very remote indeed. She will live in straightened financial circumstances, I would anticipate, for many years to come.
Neither party has any savings to speak of. In my view, there would not be a great deal of purpose served in this case to compel the father to sell his home. There would be expenses associated with that. His equity is not great. He has other debts to be paid. He is looking down the barrel of bankruptcy. I also accept that he is not in a strong financial position.
It is regrettable that his business has gone into receivership. Whether any of the blame for that can be sheeted home to him is largely irrelevant. I must deal with the facts and circumstances as they are, and those facts and circumstances are that his income has substantially dropped and that he has substantial liabilities.
He was cross-examined at some length about purchases that he had made at supermarkets and of alcohol. Clearly he does drink from time to time. This is a luxury. But it did not seem to me that he was leading what could be described as a profligate or extravagant life style.
He was also criticised for the amount of money he spends per week on food, which he gives as $90 per week. In my view, that is almost certainly an exaggerated and inflated sum, but, looking at his fixed expenses and in particular his mortgage, it is difficult to see that there is much slack there from which to carve out a surplus of funds over expenditure.
The father obviously needs somewhere to live. I have not been provided evidence as to the likely cost of his accommodation if he was forced on to the private rental market, but, for the reasons provided, I do not believe that it would be reasonable to expect him to sell his home or indeed that this would be likely to free up significant funds for him.
The question is, therefore, what contribution should be made by the father towards the heavy burden of supporting S.
In Australia at the present time there exists two systems by which the amount of maintenance to be paid by a non-custodial parent in respect of his or her children is calculated. Firstly, there are cases, such as the present one, which fall to be determined under the Child Maintenance Provisions of the Family Law Act, so-called Stage 1 matters. Secondly, the remainder of cases fall to be determined pursuant to the formula provided by the Child Support Assessment Act, so-called Stage 2 matters.
As I understand a number of decision of the Family Court, in particular Beck v Sliwka (1992) 15 FLR 520, although I am not bound to follow the Child Support Assessment Scheme in making judgments under the Child Maintenance Provisions of the Family Law Act, in some situations the scheme may provide a useful guide for determining such cases.
In Beck v Sliwka, (supra) Nicholson CJ and Fogarty J held that:
Whilst it must be emphasised that under the Family Law Act the court is required to consider the facts of the individual case in accordance with the structure in Division 6, nevertheless in the sort of case with which we are concerned now and which is not untypical of many cases litigated both in this court and in the Magistrates Court, and where the issue is the capacity of the non-custodian to make an equitable contribution to the costs of the children, it seems not unreasonable to at least pay regard to the formula in determining the amount of a Stage 1 order.
Applying the formula as it currently stands for a child support income of around $32,000 for one child, the child support payable on that income would be a sum of $69.89 per week. That is for one child.
I am conscious that no reference is made to L. This is not an application that deals with L. In those circumstances, I am not going to concern myself greatly with her other than that the father, in his evidence, has indicated that he has a liability to pay $30 per week in respect of L.
So the formula provides a sum of just under $70 for one child. Such a sum is not even 25% of the sum that I have calculated as being the sum required to support S adequately. In Beck v Sliwka (supra), Nicholson C J and Fogarty J said at page 530:
The issues in this case are typical of many Stage 1 child support cases. The custodian is in receipt of a pension or otherwise has a modest income for herself and the children. Of the approximately 400,000 single parent households in Australia, approximately 260,000 of those custodians are in receipt of the Sole Parent Pension. The non-custodial parent is usually on a moderate income or wage. The costs of raising children are very substantial. In most cases it would be impossible for the non-custodian to pay an adequate proportion of those costs and, at the same time, maintain himself at a reasonable level. The consequence is that sacrifices are often required in the custodian’s family. It is important in those cases that the non-custodian makes as substantial a contribution as is reasonable. At the same time, there is no point in making orders which are unrealistic.
Conclusions
I must bear in mind, I think, that I should not make an order that is unrealistic. As I have said, I do not think the father is a deceptive or disingenuous person. I accept that he has, of late, fallen in difficult financial times. I accept his annual income is about $32,000 per annum.
On the other hand, S is a child who has all sorts of special needs. As I have said, I have absolutely no doubt that her mother has borne the vast bulk of that hardship. I feel a great deal of sympathy for Ms C but it would be imprudent of me to make an unrealistic order which will not be able to be met by the father.
In these circumstances, and particularly that I do accept that the father is a person who is in receipt of a modest wage and, as I have said, I do not think it is unreasonable that he has a home which has a mortgage on it, and especially in the circumstances where his creditors may, at some stage in the future, change that position, I think in those circumstances it does behove me to at least have some regard to the child support formula and in particular what sum of child support the Agency would assess as being payable by a person in receipt of Mr M’s income.
I am concerned about the other child, L. I think the sum of $30 to support her is, to be honest, a risible amount. I do not know how $30 is really going to put too much bread and vegemite on the table. But, as I say, I am not dealing with an application for L.
There are some arrears of maintenance which the Child Support Agency are currently looking to collect in respect of S. They are between $1700 and $1800. S has to have some dental work done. It is likely that that is going to cost $1500. I have not been asked to discharge any arrears, and I am not disposed to discharge the arrears. They will stand.
I must also bear in mind S’s special needs. Some allowances must be made to recognise these. The allowance will be a small one because of the difficult financial circumstances of the father.
In all the circumstances of this case, in my view balancing the competing matters in this matter, an appropriate order in this case is as follows:
1)That as of the date of these orders the father, G L M, pay to the mother, P E C, the sum of $75 per week in respect of the maintenance of the child of the relationship, S L C, born 29 February 1988, of which $35 is attributable to the special needs of the child.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: