M and S - [2004] FMCAfam 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & S

[2004] FMCAfam 31

FAMILY LAW – Child Maintenance Order – application for modification – where applicant has been made redundant – where his needs are best being met by his partner – where the applicant has assets capable of being easily liquidated – where maintenance order expires on 31 December 2004 – obligation of paying parent.

Family Law Act 1975, s.66S

Child Support (Assessment) Act 1989

Applicant:

Respondent:

File No:

PAM 2591 of 2003

Delivered on:

9 January 2004

Delivered at:

Parramatta

Hearing date:

9 January 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Cove Solicitors

ORDERS

Application dismissed.
Order that the applicant within 14 days sell his whole holding in GEAC and IAG and that the net proceeds be deposited into a Trust Account in the name of the applicant solicitors to be held by them and to be paid to the respondent mother:
(i)In reduction of arrears of maintenance accrued to date.
(ii)In respect of the balance at the rate of $200 per week, made every four weeks in arrears.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2591 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

These proceedings are an application under s.66S Family Law Act 1975 for the modification of a maintenance order made between the parties by consent on 3 July 2001 and on 8 October 2001. Under that agreement the father was to pay the mother the sum of $200 per week for the maintenance of their daughter, KM, born on 7 June 1986 and now aged 17 years and 7 months.
Order 2 of the consent orders made on 8 October 2001 provided that the order made on the 3 July 2001 be made as a final order and that said order continue until the child completes her secondary schooling or 31 December 2004, whichever first occurs.
The father ceased making payments under the Order on 1 July 2003. In his amended application dated 18 December 2003 he sought orders with effect from 1 July 2003 that the orders made in the Family Court on 3 July 2001 and on 8 October 2001 be suspended until he gained permanent employment. Other matters were the subject of orders but those have been resolved between the parties.
The reason put forward by the father for the suspension of the order is that in or about October 2002 he was made redundant from his senior position with a computer associated organisation. He is some 57 years of age and understandably has found it very difficult to obtain further employment. He has not taken the opportunity to "retire", possibly because the evidence is that his superannuation benefits are currently only worth approximately $47,000. He is still seeking employment. The father tells me that when he obtains suitable employment he would consent to any suspension of these orders being lifted. He has given evidence that he fully understands his obligations to maintain his daughter as set out in s 66 of the Family Law Act.
The father filed two affidavits dealing with his means. In the first affidavit it appeared that he had a savings account with the St George Bank of approximately $12,000. By the time he came to swear his second financial statement in December 2003 that amount had diminished to $500. In June 2003 stock which he owned in GEAC was worth approximately $17,000 and some IAG shares were worth approximately $2500. Today the GEAC stock is worth $9000 and the IAG stock is worth approximately $3000. The father leases a Subaru Forrester motor vehicle which he says has a market value of approximately $26,000 and was built in 2002. His lease payments approximate to $196 per week on top of which he must pay insurance, petrol and maintenance of the vehicle.
The father owns, together with his current partner, a house in North West Sydney. He has told the Court that this is in poor condition, although he spends approximately $2500 a year on its maintenance. He alleges that it has a value of approximately $450,000 and there is a mortgage upon it in the total sum of $168,000. The father claims that he has at least a 50 per cent interest in that house.
I questioned the father concerning the value of the house. He informed me that the estimate given by him was made on the basis of comparison with other properties in the area. I am not familiar with the value of properties in the suburb but given the known surge in values of property in the Sydney area over the last year or so, I have to have some doubts as to whether this value is accurate.
The father tells the Court that at the moment he has no income and that all his needs are being met by his partner. There was, prior to the commencement of the hearing, a number of subpoenas and notices to produce issued, much of which was directed at discovering the financial resources of the father's partner. I made it clear that unless I could be provided with some evidence as to why this was relevant, I did not believe it was strictly relevant. I have not been satisfied that the resources of the partner are relevant for the purposes of these proceedings.
The law in relation to the maintenance of children by way of child maintenance orders and in particular the responsibility of parents to maintain their children and the assets out of which that maintenance should occur, is not significantly different to that found in the Child Support (Assessment) Act 1989. In short, it is the duty of both parents to maintain children and that obligation is a primary obligation of them and the money is to be found, not only from their current income, but also from their financial resources taken at their broadest.
It is in this regard that the applicant father's claim falls down. The child who is to have the benefit of any payment has nearly completed her schooling and at the highest her claim for maintenance from her father will continue only until the 31 December in this year. The total amount of maintenance to be paid and maintenance in arrears is $15,000 approximately. I quite understand that Mr M does not have income to support the payment of $200 per week but he has assets which would secure the payment of that sum, indeed would secure the payment of that amount by way of lump sum if so required. Mr M tells me that these assets are his "nest egg". I understand that but I believe that his duty towards his daughter is of greater priority than some money to be put away in the event that he remains unsuccessful in obtaining employment. In any event, the amount is so small compared with his total assets that I think that it could relevantly be excluded.
I should make it clear at this stage that the father accepts that this case is about his income and his financial position and not that of the mother. The mother did put on affidavits in the case but she was not required for cross-examination and no submissions have been made as to her financial position.
I am of the view that Mr M can easily dispose of the GEAC stock and the IAG shares and that when this is done the amount realised will repay the arrears and make a substantial interim impression upon his child support obligations between 1 January 2004 and 31 December 2004. It is to be hoped that Mr M will obtain some form of employment in the course of the year which will enable him to continue to make payments that are not covered by the sale of these assets, from income. If that does not occur then he may, of course, make further application to the Court or he may feel obligated to raise the balance on the security of his considerable equity in his home.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: