Moorbank and Jeffs

[2014] FCCA 1763

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOORBANK & JEFFS [2014] FCCA 1763

Catchwords:
CHILD SUPPORT – Determination – application for leave – where applicant applies for leave to depart from assessment of child support – application in respect of child support periods over 18 months and less than 7 years from the date of application – where applicant prevented from leaving Australia by a Departure Prohibition Order – where applicant has been working outside Australia between march 2008 and November 2013 – where applicant did not delay in bringing his application – whether applicant will suffer hardship if leave is not granted – whether respondent will suffer hardship if leave is granted – leave granted under Child Support (Assessment) Act 1989 (Cth) for the Child Support Registrar to make a determination under s.98S.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.58, 98B, 98S, 111, 112

Child Support (Registration and Collection) Act 1988 (Cth), s.72D

Applicant: MR MOORBANK

Respondent: MS JEFFS

File Number: SYC 627 of 2014

Judgment of: Judge Scarlett

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Sydney

Delivered on: 22 July 2014

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

1. As provided by section 112 of the Child Support (Assessment) Act 1989 leave is granted for the Child Support Registrar to make determinations under section 98S of the Child Support (Assessment) Act 1989 in relation to assessments of child support by the Applicant to the Respondent for the child X born (omitted) 2005 in respect of the following child support periods:

   (a)1 September 2008 to 31 August 2009; and

   (b)1 September 2009 to 30 September 2010.

IT IS NOTED that publication of this judgment under the pseudonym Moorbank & Jeffs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 627 of 2014

MR MOORBANK

Applicant

And

MS JEFFS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the payer of child support for leave to depart from assessments of child support for the parties’ daughter, a girl aged 9 who was born on (omitted) 2005. The child lives with the Respondent.

2. The Applicant has another daughter, who was born on (omitted) 2000. The Respondent is not that child’s mother.

3. The Applicant seeks orders that:

   a)For the period of 1^st September 2008 to 31^st August 2009 his child support income should be set at the Australian dollar equivalent of 9.422 British pounds; and

   b)For the period 1^st September 2009 to 31^st August 2010 his child support income should be set at the Australian dollar equivalent of 17,482 British pounds.

4. In the alternative, the Applicant seeks an order granting him leave under section 112 of the Child Support (Assessment) Act 1989 (Cth) for the Child Support Registrar to make a determination under s.98S of the Act in relation to assessments of child support.

5. The Applicant has tendered an affidavit of service showing that the Respondent at an address in Western Australia by registered post on 7^th February 2014. The Respondent signed an acknowledgement of service on 25^th February 2014.

6. The Respondent has not filed a Response or an affidavit. The Respondent did not attend Court.

Evidence

1. The Applicant relied on his affidavit affirmed on 6^th February 2014. He also gave oral evidence.

2. It is the Applicant’s evidence that he was first assessed to pay child support for this child in about September 2006.

3. From 2001 until March 2008 he was primarily employed in the (omitted) industry in Australia and earned an annual income of above $100,000.00.

4. The Applicant then travelled to (country omitted) and the United Kingdom for a short period. From about October 2008, as there were no (omitted) jobs available in the United Kingdom, he worked as a (omitted) at an annual income of 9,422 British pounds.

5. He met a woman in 2009 who is his current partner and, as a result, decided to stay permanently in the United Kingdom.

6. In January 2012, the Applicant commenced working on the (omitted), earning less than 20,000 British pounds per annum.

7. The Applicant deposed that he returned to Australia on 20^th November 2013 to visit his daughters in (omitted), including the child the subject of the child support assessments, and he then went to Sydney to visit his parents.

8. However, when the Applicant attempted to leave Australia on 12^th December 2013, he was not permitted to leave the country. He found that a Departure Prohibition Order had been made against him by the Child Support Registrar, under the provisions of s.72D of the Child Support (Registration and Collection) Act 1988 (Cth).

9. The Applicant made inquiries with the Department of Human Services and ascertained that he had incurred a total child support debt, including late payment penalties, of $85,840.48, in respect of his child support liabilities for both of his daughters.

10. On 20^th December 2013 the Applicant obtained copies of his Child Support Assessments for the periods:

    a)1^st September 2008 to 31^st August 2009; and

    b)1^st September 2009 to 30^th September 2010.

11. The Child Support Assessment for the assessment period 1^st September 2008 to 31^st August 2009 shows the Applicant’s Adjusted Taxable Income as AUD$123,349.00.[1]

    [1] A copy of the Assessment forms Annexure “A” to the Applicant’s affidavit of 6 February 2014.

12. The Child Support Assessment for the assessment period 1^st September 2009 to 30^th September 2010 shows the Applicant’s Adjusted Taxable Income as AUD$129,526.00.[2]

    [2] A copy of the Assessment forms Annexure “B” to the affidavit.

13. The Applicant has annexed to his affidavit, at Annexures “C” and “D”, copies of his United Kingdom Income Tax Assessments, entitled “Tax Calculation” for the income tax years 2008-09 and 2009-10. The forms show that the tax year in the United Kingdom ended on 5^th April 2009 and 2010.

14. The Applicant’s Tax Calculation for the 2008-2009 tax year shows a pre-tax income of 9,422 pounds and the Tax Calculation for the 2009-2010 tax year shows a pre-tax income of 17,428 pounds. It is the Applicant’s case that those two amounts, when converted into Australian dollars, are significantly less than the incomes of $123,349.00 and $129,516.00 attributed to him by the Child Support Registrar.

15. The Applicant was in receipt of a Newstart allowance from Centrelink in the sum of $240.00 per week, from which $48.00 per fortnight ($24.00 per week) was being deducted and paid towards his Child Support debt. He gave evidence at the hearing that he has since obtained employment and has been earning $1,000.00 to $2,000.00 gross per week since April.

16. The Applicant submitted that he is willing to pay a proper amount towards his Child Support obligations but does not have the funds to meet an amount of $85,840.48 by way of outstanding Child Support and late payment penalties.

17. The Applicant wishes to leave Australia in order to be reunited with his partner and resume his former employment in the United Kingdom.   

The law to be applied

1. Section 98S of the Child Support (Assessment) Act 1989 permits the Child Support Registrar to make determinations;

   a)varying the rate of child support payable by a liable parent;

   b)varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;

   c)making provision with respect to the calculation of any such amount in relation to the liable parent;

   d)varying the child support income amount or disregarded income amount of the carer entitled to child support;

   e)making provision with respect to the calculation of any such amount in relation to the carer entitled to child support; or

   f)directing that one or more of the provisions of s.42 or s.52 of the Act do not apply.

2. However, the Registrar may only make a determination in respect of a day in a child support period more than 18 months earlier than the day on which the application for determination is made under s.98B if a court has granted leave under s.112 for the determination to be made (s.98S(3B)).

3. If a court grants leave under s.112, the Registrar may only make a determination in respect of a day in a child support period if the day is within the period specified by the court, under s.112(6).

4. Section 111(1) entitles parties to apply for amendment of an administrative assessment that is more than 18 months old, being an application for leave for:

   a)the Registrar to make a determination under s.98S; or

   b)the court to make a determination under s.118.

5. Subsection 112(1) empowers a court to grant leave for the Registrar to make a determination under s.98S or the court to make an order s.118.

6. The Court may grant leave for an order to be made under s.118 if the court is satisfied that it would be in the interest of the parties to consider whether, at the same time as it hears the application under s.111, an order should be made s.118 (s.112(2)). Otherwise, the court may grant leave for the Registrar to make a determination under s.98S (s.112(3)).

7. When a court is considering whether to grant leave under subsection (1), subsection (4) provides that the court must have regard to:

   a)Any responsibility, and any reason, for the delay in making an application under s.98B or s.116;

   b)The hardship to the applicant if leave is not granted; and

   c)The hardship to the respondent if leave is granted.

Conclusions

1. The Applicant deposed that:

   From mid 2003 until March 2008, I was very much up-to-date with making my child support payments as assessed according to the Department of Human Services (“Child Support Agency”).[3]

   [3] Affidavit of Mr Moorbank 6.2.2014 at [5]

2. However, it appears clear that the Applicant did not give a great deal of thought to how he would meet his child support obligations when he left for (country omitted) and the United Kingdom in March 2008. He deposed that he met his current partner in early 2009 and then decided that he would reside in the United Kingdom permanently. Thus, he extended his stay in the United Kingdom and did not return to Australia until he returned for a short holiday in December 2011. It was in December 2013, when he was next visiting Australia that the Applicant found out about the Departure Prohibition Order, to his cost.

3. As the Applicant was, presumably, not submitting income tax returns in Australia while he was absent, it would appear that the Registrar determined his adjusted taxable income under the provisions of s.58 of the Child Support (Assessment) Act 1989. This would have operated greatly to the Applicant’s detriment, as he has shown actual evidence that his income whilst working in the United Kingdom was significantly less than he was previously earning in Australia.

4. When considering the matters under s.112(4), it appears clear that the Applicant has not been guilty of any delay in making his application. He found out about the Departure Prohibition Order on 12 December 2013, when he was attempting to leave Australia to return to the United Kingdom. By 20^th December he had obtained copies of the Child Support Assessments for the child support periods in question.

5. The Applicant gave oral evidence that he sought legal advice from Legal Aid NSW, and it is apparent that a person from that agency prepared his Application and affidavit for him, as well as the Application and affidavit for the other Application he has brought in this Court, and which was also heard today.

6. The Applicant’s Application was filed on 6^th February 2014. Allowing for the holiday period over Christmas and the New Year, it is fair to say that the Applicant has acted promptly in bringing his Application to Court.

7. In my view, the Applicant will suffer hardship if his Application were not to be granted. At present, he is unable to leave Australia. He wishes to be reunited with his partner who lives in the United Kingdom. He has employment in the United Kingdom. He deposed that his employer is keeping his job open for him for a few months, but that situation cannot be expected to last indefinitely.

8. The Applicant presently faces a child support liability for both of his daughters in excess of $85,000.00, including penalties. From his financial statement it is clear that he has no reserves of cash or other assets that he can use to meet the child support debt owing. He has a modest amount of superannuation but at his age, 42, he would be unlikely to be able to access that superannuation. He only has his income to meet the amount owing. Even if he were to pay $200.00 per week towards his child support liability it would still take him over eight years to pay the amount currently owing.

9. I am satisfied that the Applicant will suffer hardship if an order is not made.

10. The Court must also consider the question of hardship to the Respondent, the payee of the Applicant’s child support liability. Even though the Applicant is now in employment, he only has his income to pay the arrears and his ongoing child support liability. There is no asset that can be sold and no fund, other than the Applicant’s wages, that can be the subject of a garnishee order. The current Child Support Debt is an unrealistic amount and it is of no benefit to the payee for it to remain as it is. The Applicant cannot pay it.

11. The Respondent will not suffer any appreciable hardship if the Application is granted.

12. I am not satisfied that the Court should make the orders sought by the Applicant in setting his child support income at the figures equivalent to his pre-tax income in the United Kingdom. However, I am satisfied that it is appropriate to make an order under s.112 of the Child Support (Assessment) Act 1989 granting leave for the Child Support Registrar to make a determination under s.98S of the Act in relation to the child support periods 1^st September 2008 to 31^st August 2009 and 1^st September 2009 to 30^th September 2010, which corresponds with Order 4 sought by the Applicant in his Application.

13. It goes without saying that, as the Applicant is now in employment, it would be to his benefit to ensure that he submits his Income Tax return for the financial year ending 30^th June 2014 as soon as he is able to do so.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  22 July 2014