May and May (No.2)
[2005] FMCAfam 113
•7 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAY & MAY (No.2) | [2005] FMCAfam 113 |
| CHILD SUPPORT – Departure Application – grounds for departure. |
| Child Support (Assessment) Act 1989 (Cth), ss.3; 115; 116; 117 Mental Health (Criminal Procedure Act 1990 (NSW), s.32 |
| In the Marriage of Gyselman (1991) 15 Fam LR 219; FLC 92-279 In the Marriage of DJM and JLM (1998) 23 Fam LR 396; FLC 92-816 |
| Applicant: | RICHARD PAUL MAY |
| Respondent: | SRI PURNAMAWATI MAY |
| File Number: | PAM 3009 of 2000 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 September 2002 |
| Date of Last Submission: | 4 September 2002 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondent: | Appeared in person |
ORDERS
That there be a departure from the administrative assessment of child support made on 17 April 2000 varying the annual rate of child support payable by the Applicant for the period 1 January 2000 to
30 September 2002 to $8,067.00.
That the annual rate of child support payable by the Applicant to the Respondent for the support of the children TAMARA NADIA MAY born 21 June 1988, EMILY FITRIA MAY born 16 April 1991 and JACINTA RACHMAWATI MAY born 20 August 1992 for the period
1 January 2000 to 30 September 2002 is set at $3,082.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 3009 of 2000
| RICHARD PAUL MAY |
Applicant
And
| SRI PURNAMAWATI MAY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the husband, the liable parent, to depart from an administrative assessment of child support made on 17th April 2000. The orders that the Applicant seeks are the following:
(a) That the child support decision of 6th May 2000 be varied to $45.00 per week in the light of special circumstances, income earning history and capacity, and the need to support his spouse and future child.
(b) That the Child Support Agency back-payments and penalties be varied to NIL, as is deemed right and proper in the circumstances of this case.
The Respondent, who is the payee, opposes the application.
Background
The Applicant and the Respondent were married on 9th June 1983 at Jakarta, in the Republic of Indonesia. The parties separated on
15th September 1997 and were divorced on 2nd February 2001. They both live in Australia.
There are three children of the marriage – TAMARA NADIA MAY, born on 21st June 1988, EMILY FITRIA MAY born 16th April 1991, and JACINTA RACHMAWATI MAY, born 20th August 1992. They live with the Respondent.
Orders were made by consent in the Family Court of Australia at Canberra on 7th December 2000, discharging earlier orders made on 22nd June 1999, and providing that the children would live with the Respondent and the Applicant would have defined contact with them.
The administrative assessment that is the subject of the Departure Application was made on 17th April 2000. That assessment provided that the annual rate of child support for the period 1st January 2000 to 30th September 2002 was varied to $8,607.00.
The Applicant objected to that decision. The Regional Child Support Registrar re-examined the decision but decided not to change it. The decision not to uphold the Applicant’s objection was made on
18th September 2000.
The Applicant filed his Departure Application on 18th September 2001, exactly a year later. As will be seen from paragraph 7, he has complied with the requirements of ss.115(b) and 116(1A).
Evidence
In support of his Application, the Applicant has filed and served three affidavits:
a)on 18th September 2001, with the Departure Application;
b)a supplementary affidavit on 4th September 2002; and
c)a further affidavit on 2nd September 2002.
The Respondent filed one affidavit, on 13th August 2002. She filed a financial statement that same day.
The Applicant filed a financial statement on 4th September 2002.
The parties, who were not legally represented, appeared for themselves. They each gave oral evidence.
I have had regard to all of the above documents as well as the parties’ testimony in the witness box.
It is the Applicant’s case that the assessment was flawed because it attributed to him a degree of income, financial resources and an earning capacity that he did not have. In particular, he deposed that:
a)the assessment was based on an earning capacity that he had not had since the 1994/95 financial year;
b)the assessment disregarded the deleterious effect on his earnings of his medical history, particularly his psychiatric treatment from 1997 to 1999;
c)the assessment disregarded his obligation to support his new partner;
d)his earning capacity has been affected by an alleged dishonest appropriation by the Respondent of items in the way of professional tools of trade, including computers, computer files and records;
e)the assessment did not take into account the poor economic situation at the time on the Queensland gold Coast; and
f)the assessment did not take into account the fact that his new partner was expecting a child.
The Applicant’s affidavit filed on 2nd September 2002 referred to a number of matters previously deposed to, but contained allegations that the Respondent had made false statements to the Family Court in Canberra and had taken a considerable number of belongings with her when she left the marriage. The Applicant also deposed that he and his new partner, Sukerti, had become parents of a son, Justin Tionia May, who was born on 6th April 2002. He annexed a copy of a child support assessment issued on 11th May 2002, for the period from
1st October 2002 to 31st December 2003. This assessment showed an annual rate of $3,082.00, which is significantly lower than the annual rate for the earlier period. The later assessment does not show any dependent children living with the Applicant, notwithstanding the birth of the child Justin on 6th April 2002.
The Applicant’s affidavit of 4th September 2002 referred to the Applicant’s psychiatric treatment up to July 1998 and makes a number of allegations about the wife and a person called Rixon. These allegations were, to my mind, inadmissible in these proceedings.
In her affidavit, the Respondent confined herself to annexing copies of the two relevant child support assessments and objecting to the Applicant’s affidavit of 18th September 2001 as being “argumentative, opinionated and lacking in relevance.”[1] The Respondent complained of the Applicant’s history of applications under the Family Law Act and the Child Support (Assessment) Act, which she described as “frivolous and vexatious”.[2]
[1] Respondent’s affidavit, paragraph 2
[2] Respondent’s affidavit, paragraph 7
The Applicant gave evidence in the witness box in which he described episodes of forgetfulness and losing all his files. He referred to his psychiatric treatment and his efforts to obtain a copy of a psychiatrist’s report about him which had been used in proceedings in Manly Local Court in February 1998. He said that a summons seeking an Apprehended Violence Order against him was dismissed on that occasion under the provisions of s.32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
The Applicant also referred to working as a taxi driver, which was a subject that he had covered in his affidavit material.
The Respondent elected not to cross-examine the Applicant.
The Respondent gave oral evidence. The Applicant cross-examined her. He asked her about a Ford Fairlane motor car that she said had a nil value. She told the court that it was a 1989 that had been sitting in the garage for the previous year and a half. The wreckers wanted money to take it away.
The Applicant asked the Respondent about the whereabouts of a number of items of personal property. The Respondent said that some of those items were in the garage at her home. The questions about assets were, for the most part, of little relevance to the matter before the court.
At the conclusion of the evidence, the Respondent submitted that the rate of child support should not be reduced and that the Applicant should pay the arrears. She pointed out that child support was a debt to the Commonwealth.
The Applicant submitted that the evidence showed that he did not have at any time in the previous 5 years an income earning capacity of anything like $30,000.00. He was a retired trade commissioner who had a consultancy business which lost money for various reasons, including the fact that he said the Respondent had lost a lot of their money through gambling. He said that he had returned to Australia and returned to an earlier occupation of driving taxis to make ends meet.
Issues
The assessment from which the Applicant seeks a departure relies on findings that the Applicant had:
a)additional sources of income that had not previously been taken into account: and
b)an under-utilised earning capacity.
The issue in this case is whether those findings are in fact the case.
The Relevant Law
Section 117(1) of the Child Support (Assessment) Act provides that where an application is made to a court for departure, the court must be satisfied that:
i)one or more of the grounds of departure mentioned in subsection (2) exists or exist; and
(ii) 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;
to make a particular order under Division 4 of Part 7 of the Act.
It has been held to be a three step process (see In the Marriage of Gyselman (1991) 15 Fam LR 219; (1992) FLC 92-279).
Conclusions
It appears to me that the grounds upon which the Applicant relies are:
a)
his duty to maintain any other child or another person
(s.117(2)(a)(i);
b)his commitments necessary to support:
i)himself; and
ii)any other child or another person that he has a duty to maintain; and
c)his income, earning capacity, property and financial resources.
As to the first ground upon which the Applicant relies, the Applicant is the father of a child born on 6th April 2002. This assertion has not been contested by the Respondent, and I accept it to be true. As he is the parent of that child, he has a duty to support the child that is not of lower priority than his duty to maintain any other child or another person (s.3(2)(a)).
The Applicant has, in his financial statement filed on 4th September 2002, shown that his average weekly expenses for himself, the child and his new wife, as he describes her, Ni Wayan Sukerti May, amount to $324.00.[3] She has an income of $167.00 per week.
[3] The schedule is a rather faded photocopy completed by hand and it appears to be cut off at the bottom of the page. I have interpreted is as best I can.
The Applicant does not provide any date of marriage, but I note that he and the Respondent were not divorced until 2nd February 2001, according to the Information Sheet attached to his Application. The Respondent did not challenge this assertion. No marriage certificate has been provided. At the time the assessment was made, the Applicant and the Respondent were not divorced, so he could not have married his new wife until after 2nd February 2001.
I am not satisfied that the Applicant has made out a ground that he had a duty to support Ni Wayan Sukerti before February 2001.
The Applicant submits that his earning capacity and income were vastly over estimated when the CSA made the administrative assessment. In the decision of 17th April 2000, at page 5, the decision-maker refers to the Applicant’s “undisclosed income” from his business venture in Indonesia, without saying how much this income may be. There is no evidence to support that contention. The only evidence appeared to come from the Applicant, who said that the business ran at a loss.
Similarly, there is no evidence upon which the decision-maker was entitled to make a finding of an under-utilised earning capacity of between $60,000.00 to 70,000.00 per year, other than the fact that the Applicant had said that he had applied for a position paying that amount. Clearly, he did not obtain that position, and his evidence was that he was earning an income from driving taxis and hire cars.
The decision-maker seems not to have taken into account the Applicant’s history of psychiatric illness, which involved treatment over an extended period from 1997 to 1999. The Applicant asserted that he obtained the benefit of a dismissal of an Apprehended Violence Summons under the provisions of s.32 of the NSW Mental Health (Criminal Procedure) Act 1990 in February 1998.
The powers available to a Magistrate under s.32 of the Mental Health (Criminal Procedure) Act at the time were quite wide:
“32. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
the Magistrate may take the action set out in subsection (2) or (3).
(2)The Magistrate may do any one or more of the following:
(a) adjourn the proceedings;
(b) grant the defendant bail in accordance with the Bail Act 1978;
(c)make any other order that the Magistrate considers appropriate.
(3) The Magistrate may dismiss the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions; or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both; or
(c) unconditionally.
(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
The Respondent has not challenged the Applicant’s assertion. Bearing in mind the provisions of s.32, and having formed my own assessment of the Applicant’s demeanour in the witness box and throughout the hearing, I am satisfied that I should accept his assertions about his history of psychiatric treatment over that period.
For all of the above reasons, I consider that the Applicant could not have been said to have had an under-utilised earning capacity during the relevant times.
This does not appear to me to be a case where the Applicant can be said to have deliberately weakened his economic position (see In the Marriage of DJM and JLM (1998) 23 Fam LR 396; FLC 92-816).
I am satisfied that the Applicant has established that his duty to maintain his latest child, for part of the relevant time, his commitments necessary to support himself, and his reduced income and earning capacity are grounds for a departure from the administrative assessment of child support.
Just and Equitable
It is necessary for the Court to be satisfied that it is just and equitable as regards the children, the carer entitled to child support and the liable parent (the Applicant in this case) to make a departure order. In determining whether it would be just and equitable to make, or refuse to make, a departure order, the Court must have regard to the matters in s.117(4)(a) to (g) inclusive.
The Applicant and the Respondent both have a duty to maintain the children. There is no evidence that the children’s proper needs are anything other than those which normally apply to children of their ages. There is no evidence that the children have any income, earning capacity, property or financial resources.
I have considered the income, earning capacity, property and financial resources of both the Applicant and the Respondent, and their commitments. I am satisfied that there would be no discernable hardship to the Respondent or the children of the marriage if I were to make the order sought. The child support payments are in arrears and the Applicant does not appear to have the resources to meet those arrears.
I am satisfied that there would be a hardship to the Applicant if I were to refuse to make the order, as there would be arrears steadily mounting, along with late payment penalties. I am satisfied that the Applicant did not have the earning capacity at the time the assessment was made. It also appears to me that the Applicant’s latest child would suffer hardship if I were to refuse to make the order, as he must look to the Applicant and the Applicant’s new wife, for his support.
For the above reasons, I am satisfied that it would be just and equitable as regards the children, the Applicant and the Respondent to make the departure order that I propose to make.
Determination whether otherwise proper
In determining whether it would be otherwise proper to make a departure order, the Court must have regard to the matters set out in subsection 117(5). I have considered the nature of the duty of the parents of the children the subject of this application to maintain them and, in particular, the fact that it is the Applicant and the Respondent who have the primary duty to maintain them (s.117(5) (a).
The Respondent’s Financial Statement filed on 13th August 2002 shows that she was then receiving a parenting payment of $94.00 per week and a family payment of $305.00 per week. It does not appear to me that the making of the departure order would have any effect on the entitlement of the children or the Respondent to an income tested pension, allowance or benefit. There is an existing entitlement.
There is no evidence that the making of a departure order, which will be retrospective, will have any effect on the rate of the parenting payment or the family payment, or, if there is any effect, what that effect would be.
Taking all of the above matters into consideration, I am satisfied that it would be otherwise proper to make a departure order.
The Administrative Assessment made on 11 May 2002
The Child Support Registrar made a further assessment on
11th May 2002. The Applicant annexed a copy of that assessment to his affidavit filed 2nd September 2002.
That assessment covered the period from 1st October 2002 to
31st December 2003. The assessment set the annual rate of child support at $3,082.00, a significant reduction on the previous period. That assessment relied on a child support income for the Applicant of $21,371.00 and a child support income for the Respondent of $21,809.00.
In my view, this figure is a far more appropriate annual rate than the rate of $8,067.00 set for the period 1st January 2000 to
30th September 2002.
Departure Order
For the reasons above, I propose to order a departure from the administrative assessment the subject of this application by substituting an annual rate of $3,082.00 for the figure of $8,067.00. It must follow that the arrears of child support for the period 1st January 2000 to
30th September 2002 will need to be adjusted.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 11 March 2005
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