N and L
[2003] FMCAfam 3
•29 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| N & L | [2003] FMCAfam 3 |
| FAMILY LAW – Child maintenance – liability of step-parent – primary duty of parents – earning capacity – lump sum maintenance. Family Law Act 1975, ss.66C, 66D, 66M, 66N Bendeich and Bendeich (1993) FLC ¶92-355 |
| Applicant: | C S N |
| Respondent: | Y L |
| File No: | LNM2492 of 2002 |
| Delivered on: | 29 January 2003 |
| Delivered at: | Hobart |
| Hearing date: | 4 December 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| The Applicant appeared in person. |
| The Respondent did not appear. |
ORDERS
That the maintenance orders made by consent of the parties in the Family Court of Australia on 29th January 2002 bearing number HB1077 of 1995 and all arrears pursuant to those orders be discharged.
That the Respondent, Y L (“the Mother”) pay maintenance for the child T N (also known as T L) born 31st October 1987 (“the child”) at the rate of $300.00 per week with effect from 1st February 2002.
That the said maintenance for the period 1st February 2002 to 31st December 2003 be paid in a lump sum of $29,700.00 (“the lump sum”).
That the lump sum be paid by the Mother within thirty days to Steele, Burnett & Nelson, Chartered Accountants to be held in trust for the maintenance of the child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNM2492 of 2002
| C S N |
Applicant
And
| Y L |
Respondent
REASONS FOR JUDGMENT
Background and applications
The Applicant is C S N and the Respondent is Y L.
The parties were married on 2nd March 1993 and were divorced in 1999. The Respondent was born in China and the parties met overseas. Because of their marriage, the Respondent was able to migrate to Australia with her daughter, T L, who was born on 31st October, 1987 (“the child”).
The child “voted with her feet” and moved in to live with the Applicant. She has also adopted the family name of the Applicant. Following a defended hearing, I made orders for the child to live with the Applicant. Those Orders were made on 9th October 2002.
On 29th January 2002 Orders were made by consent in the Family Court of Australia which provided that the Respondent pay to the Applicant the sum of $140.00 per week by way of child maintenance. Those Orders were interim orders and the Respondent was represented by lawyers at that time.
The Respondent was not represented at the hearing of the parties’ competing residence applications.
The Applications currently before the Court are the Applicant’s amended Application for Child Maintenance filed 20th September 2002 and his Enforcement Summons issued 30th May 2002.
In his Application for Maintenance, the Application seeks child maintenance for the child at the rate of $275.00 per week (not including education costs) payable from 1st May 2001 until the close of the school year in 2005. In addition, he seeks a payment of $16,145.00 to cover all tuition fees, administration charges and other education expenses for the child.
The Applicant seeks that the maintenance be paid either as a lump sum of $81,400.00 or as a lump sum of $18,780.00 (described as arrears) plus fortnightly payments of $370.00 per week (being $275.00 per week maintenance and $95.00 per week for education expenses). He wants those payments to continue until the end of 2005.
The Applicant also sought other orders which were essentially orders of an enforcement nature to restrain the Respondent from dealing with her interest in a home in Hobart and to provide for the sale of that interest in order to pay the maintenance.
These Applications were mentioned in Court on 28th November 2002, at which time the Applicant appeared in person and the Respondent appeared by telephone. At that time, I indicated quite clearly that if the Respondent did not appear at the time that the matter was listed on 4th December 2002, I would proceed to hear the Applications in her absence as an undefended matter.
When the matter came on before the Court on 4th December 2002, the Respondent did not appear.
During the hearing the Applicant sought to reply upon affidavits by himself filed 20th September 2002 and 13th November 2002 and affidavits of G B, A F, E D (“Mrs. D”), L V and M M.
Some of those affidavits were not very helpful to me.
The Law
Section 66C of the Family Law Act 1975 (“the Act”) imposes a primary duty upon the parents of a child to maintain that child. The duty has priority over all of each parent’s commitments, other than those necessary to enable that parent to support himself or herself or any other child or person that that parent has a duty to maintain.
The provisions in the Act relating to child maintenance are found in Part VII. Section 60B makes it clear that the object of that Part is to ensure the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.
It is clear from section 64B of the Act that an order for maintenance of a child is a parenting order. Section 65C defines who may apply for a parenting order and it is clear that in this case, the Applicant as the step-parent of the child, who has a residence order is clearly a person “concerned with the care, welfare or development of the child”.
Section 65E makes is quite clear that in relation to child maintenance orders, the Court must regard the best interests of the child as the paramount consideration.
I have referred to the duties of parents to maintain their children above, but it is clear that I need to keep in mind the provisions of the Act in relation to step-parents’ duty to maintain children, because the child in this case is living with a step-parent. Those provisions are to be found at sections 66D, 66M and 66N.
Evidence and findings
Looking first at the child’s needs, I have no hesitation in coming to the conclusion that it costs the Applicant approximately $295.00 per week to maintain the child, exclusive of education costs. This is detailed in the voluminous material filed by the Applicant and is certainly supported by the published research in relation to the costs of raising children.
The child is currently attending a private school in the Hobart area and the fees to send her to that school are $3,131.00 for 2003. That is approximately $60.00 per week.
In relation to the child’s education, it is clear that the Mother enrolled the child at the private school that she is currently attending so it was the Mother’s intention that she should have that type of education. It is therefore appropriate to add $60.00 to the sum of $295.00 per week, to arrive at a total weekly cost of $355.00 to properly maintain the child.
The Applicant would like to enrol the child at another private school in Hobart. The child is likely to receive a bursary that would result in a 25% reduction in the fees. However, it is well known that the particular school is one of the more expensive private schools in Tasmania. Sending her there would result in her fees increasing to approximately three times the fees that are charged at her current school. It should be noted, however, that the Respondent has not consented to enrolling the child at that more expensive school and she has certainly not consented to such a significant increase in fees. Consequently, I am not prepared to take those higher school fees into account in my consideration of child maintenance matters.
It is clear from the material provided by the Applicant that he considers that the Respondent should be totally responsible for the maintenance of the child. However, I do not agree with that. The Applicant should also have some obligation to maintain the child. This is because he has, in effect, stepped into the role of a parent and he has sought and obtained a residence order in relation to the child. Clearly, these are matters that the Court needs to take into account pursuant to subsection (3) of section 66M.
I need to look at the ability of both parents of the child to maintain her. The child’s natural father resides in China. In a Judgment delivered in the Family Court of Australia in this matter on 3rd April 2002,
Hannon J said:
“It is common ground that (the child’s) father still resides in China and contact with him is difficult and orders have been made for substituted service in both the proceedings for a parenting order and in these maintenance proceedings. In the absence of any capacity to enforce a duty upon the Father to maintain (the child) the primary duty falls upon the respondent as her mother.”
It is clear to me that there would be no point in pursuing the child’s father for any maintenance. Consequently, the primary obligation falls upon the Respondent mother, but I consider it appropriate for the Applicant step-father to contribute towards her maintenance as well. See paragraph 23 above. However, I do not consider it necessary to make any step-parent maintenance orders. I will simply work out the proportions in which the Applicant step-father and the Respondent Mother should maintain the child. I will then make orders setting out the level of maintenance to be paid by the Respondent, and it will then fall to the Applicant step-father to meet any shortfall.
Because the Respondent did not take part in the hearing it is necessary to rely upon the information provided by the Applicant in relation to her earnings, and her earning capacity. In this regard, the Applicant has been particularly thorough in his research and the provision of information to the Court.
The Respondent is the part owner of a café in Hobart and she also earns an income from providing Chinese therapeutic massages and herbal medicine.
It would appear that the café is not being run very well, especially as the Respondent appears to have left her mother to run that café when she moved to the Gold Coast.
Notwithstanding this, I have no hesitation in coming to the conclusion that the Respondent is capable of earning an income in the vicinity of $50,000.00 per annum from her Chinese massage and herbal medicine business. She has done that in the past and I can see no reason why she cannot do so in the future.
There was some suggestion that the Respondent had not properly declared her income and had been inappropriately in receipt of Centrelink benefits. However, I do not need to take that into account in these reasons. It is sufficient for me to take her earning capacity of $50,000.00 per annum ($962.00) per week into account.
If the Respondent was to earn an income of $962.00 per week, she would have to pay income tax at the approximate rate of $233.00 per week. That would leave her a notional $729.00 per week to provide for her own personal expenses and for those of the child.
I have no way of knowing what the Respondent’s personal expenditure is, because she did not take part in the proceedings. However, it seems appropriate for me to allocate a notional $300.00 per week as being available to meet her primary obligation to maintain the child. That would leave a notional $429.00 per week for her personal expenditure.
The Applicant’s income comes solely from “CompSuper” Superannuation. As at 28th June 2002 that superannuation was $604.00 per week gross. His expenditure to maintain himself as set out in his amended Application is $608.00 per week. However, I regard some of that stated expenditure to be excessive, and in this regard I refer to his claimed expenditure on food, household supplies, telephone, computers and legal expenses. In my opinion, if those were reduced to appropriate levels, the Applicant would have approximately $60.00 to put towards the needs of the child. (In this regard, I note that the Applicant has attributed one third of the mortgage payments towards the expenditure of the child. I have added that back in to arrive at the figure of $60.00 per week that the Applicant can reasonably afford for the maintenance of the child.)
Because I have determined that the reasonable costs of maintaining the child are $355.00 per week inclusive of school fees, it is appropriate to order that the Respondent Mother pay maintenance for the child at the rate of $300.00 per week and leave the Applicant to fund any shortfall.
It also seems appropriate to me to discharge the interim order made on 29th January 2002 and to backdate the final order for $300.00 per week to the date on which that interim order commenced (1st February 2002).
I now need to consider the Applicant’s application for child maintenance to be paid in a lump sum.
It is clear that, in relation to Court ordered child maintenance, lump sum orders are likely to be the exception rather than the rule. Mushin J explained the rationale in Bendeich and Bendeich (1993) FLC ¶92-355. He said:
"The rationale underlying the general approach of the court was that the longer a lump sum order operates the greater the chance of change in circumstances necessitating a variation of that order, thereby making the order unjust. Those changed circumstances might be in relation to the liable parent, custodial parent or the children. Incomes may increase or decrease and children may change their living arrangements from one parent to another.''
A major factor to take into account in assessing whether lump sum maintenance should be paid is whether the Respondent has complied with previous orders. In this regard, it is quite clear that the Respondent has not complied with previous orders and she has gone to considerable lengths to avoid paying maintenance for her child. In those circumstances, it is appropriate to order that child maintenance be paid in a lump sum.
I also note that the Applicant proposes setting up a trust to be managed by a firm of Chartered Accountants. That trust fund is to be for the benefit of the child and the joint trustees are to be the Applicant, a Chartered Accountant and Mrs. D.
Given these factors, I am of the opinion that it is appropriate to make an order for maintenance at the rate of $300.00 per week to be paid in one lump sum for the period 1st February 2002 until 31st December 2003. While I appreciate that the child is likely to continue with her education in 2004 and 2005, a number of factors could change and it is my view that it is more appropriate to reassess the child’s situation towards the end of 2003.
By my calculation, the period from 1st February 2002 until 31st December 2003 comprises ninety nine weeks. At $300.00 per week the total is $29,700.00. I will therefore order that the Respondent pay that sum to the firm of Chartered Accountants nominated by the Applicant to hold the funds in trust for the child.
I also note that by discharging the interim consent orders made in the Family Court of Australia on 29th January 2002 (including arrears) and backdating the final maintenance order to 1st February 2002, there will be no need to deal with the enforcement proceedings instituted by the Applicant in relation to those interim orders.
On 28th November 2002 I made an interim order restraining the Respondent from dealing with her interest in a residential property in the Hobart area. In view of the Respondent’s history in relation to compliance with maintenance orders, it is my opinion that that interim injunction should continue at this time.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 29th January 2003
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