NILLSON & DALABA
[2010] FMCAfam 368
•23 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NILLSON & DALABA | [2010] FMCAfam 368 |
| CHILD SUPPORT – Father’s application to discharge arrears of child support from 2005 to March 2008 and January 2009 to date – father asserts that the mother’s conduct and actions supported his belief that he was not the father of the child. |
| Child Support (Assessment) Act 1989, ss.112(1), 117, 118 Family Law Act 1975 (Cth), ss.66J, 66K, 66C, 66D, 66B, 66S |
| Aspen & Selby [2007] FAMCA 872 Hewart & Wignall [2009] FAMCA 1132 In the Marriage of Gyselman (1991) 15 Fam LR 219 Mathieson & Hamilton [2006] FMCAfam 238 Wreford & Caley [2010] FamCAFC 21 |
| Applicant: | MR NILLSON |
| Respondent: | MS DALABA |
| File Number: | PAC 2637 of 2008 |
| Judgment of: | Henderson FM |
| Hearing dates: | 5, 18 & 19 February 2010 |
| Date of Last Submission: | 19 February 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 23 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Friedlander |
| Solicitors for the Applicant: | No solicitor on record |
| Advocate for the Respondent: | Ms Day |
| Solicitors for the Respondent: | Turner Freeman Lawyers |
ORDERS
Pursuant to section 118 of the Child Support (Assessment) Act 1989 the annual rate of child support for the child, [X] born [in] 1993, for the period 13 September 2005 to 28 March 2008 be varied to nil.
The father to pay the sum of $4,985.76 to the mother by way of a discharge of any arrears of child support payable by him for the period 29 March 2008 to 31 December 2008 within 6 months of the date of these orders.
Pursuant to section 118 of the Child Support (Assessment) Act 1989 the annual rate of child support for the child, [X] born [in] 1993, for the period 1 January 2009 to date be varied to nil.
IT IS NOTED that publication of this judgment under the pseudonym Nillson & Dalaba is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2637 of 2008
| MR NILLSON |
Applicant
And
| MS DALABA |
Respondent
REASONS FOR JUDGMENT
The father seeks an order for the discharge of arrears of child support for the child, [X] born [in] 1993, for the period 13 September 2005 to 28 March 2008 and for the period 1 January 2009 to date.
As at August 2008 the Child Support Agency (“the Agency”) assessed the father had arrears of child support of $32,535.77 with late payments and penalties. Those arrears accrued pursuant to assessments issued in the period 13 September 2005 to 2 August 2008.
The father has paid child support totalling $4,231.42. Currently child support has been assessed to be paid in 2009 with arrears late payments and penalties increasing the arrears to some $41,000.
[X] ceased attending school in November 2008 and was working [in the hospitality industry] in 2008, 2009 and continuing albeit part time.
The father’s application is that the assessments issued by the Agency from 13 September 2005 up to 28 March 2008 and those covering the period January 2009 date be discharged by way of a departure application under s.117(2) of the Child Support (Assessment) Act 1989 (“the Act”).
It is agreed that the father commenced to pay child support in March 2008. He accepts that from that date and for the remainder of 2008 his total child support liability was $9,217.18 of which he has paid $4,231.42. This leaves a balance of $4,985.76. The father agrees to pay this total even though his liability may be less as [X] had left school in November 2008 and commenced to work.
The mother consented to the father being granted leave to commence departure proceedings under s.112(1) of the Child Support (Assessment) Act 1989 as the father is seeking to amend administrative assessments that are greater than eighteen (18) months old.
The basis of the variation pre-March 2008 is predicated upon my findings of fact regarding when the father first received notification and/or became aware that the Agency was seeking child support from him and whether the evidence supports his asserted position that up until March 2008 he believed the child was not his child.
In relation to the variation of the post January 2009 assessments, this is predicated on my accepting [X] was no longer at school, was and is working and is self supporting.
My findings will of necessity be determined by which parent’s version of events I accept as Mr Nillson is [X]’s biological father and is liable to pay support for his son. This was proven by screened DNA testing carried out at the father’s request after he received his first assessment in March 2008.
Chronology
The Respondent mother was born [in] 1968.
The Applicant father was born [in] 1971.
The parties commenced a sexual relationship in 1991 and commenced cohabitation in 1992.
The child, [X], was born [in] 1993.
The parties separate in July 1993 and the father moves into his parent’s residence located on Property M.
The father marries Ms N [in] 1994.
The mother gives birth to a child, [A], [in] 1994. This is the mother’s fourth child.
The father and his wife have two children, [Y] born [in] 1996 and [Z] born [in] 2002.
Evidence
The evidence for the father was contained in:
a)His Amended Initiating Application filed 14 November 2008;
b)Affidavits sworn 2 June 2008 and 13 November 2008;
c)Financial Statement marked Father’s Exhibit 1.
The father was examined and cross-examined.
The father tendered the following exhibits:
a)Father’s Exhibit 1: His Financial Statement referred to above;
b)Father’s Exhibit 2: Freedom of Information file in relation to the Child Support Agency;
c)Father’s Exhibit 3: Documents produced under subpoena by the Child Support Agency;
d)Father’s Exhibit 4: Child’s Birth Certificate;
e)Father’s Exhibit 5: Recent pay slip of the mother’s;
f)Father’s Exhibit 6: Centrelink income statement for the mother;
g)Father’s Exhibit 7: Commonwealth Bank transaction record – being a snapshot of the father’s expenditure in the period 1 June to 26 June 2009.
The evidence for the mother was contained in:
a)Amended Response filed 25 June 2009;
b)Her Affidavits sworn 13 November 2008, 24 June 2009, and 25 June 2009, and her Affidavit affirmed 7 January 2010;
c)Affidavit of her brother and mother sworn 12 February 2010 which were of little assistance to the Court. The Affidavit of her mother was not read;
d)Financial Statement filed 24 June 2009 and Amended Financial Statement affirmed 7 January 2010.
The mother was examined and cross-examined.
The mother tendered the following exhibits:
a)Mother’s Exhibit 1: Letter dated 23 September 2005 from the Child Support Agency to the father;
b)Mother’s Exhibit 2: File note dated 3 March 2008 from the subpoena material produced by the Child Support Agency contained in Father’s Exhibit 3;
c)Mother’s Exhibit 3: File note dated 19 March 2008 from the subpoena material produced by the Child Support Agency contained in Father’s Exhibit 3. This is a note in relation to a further conversation between the Child Support Agency and the father;
d)Mother’s Exhibit 4: File note of conversation between father and the Child Support Agency, dated 12 August 2008, from the subpoena material produced by the Child Support Agency contained in Father’s Exhibit 3;
e)Mother’s Exhibit 5: Schedule of Child Support deductions and payments made to the Child Support Agency by the father as at 1 June 2008. This was contained in the material produced by the Child Support Agency being Father’s Exhibit 3;
f)Mother’s Exhibit 6: Schedule of Child Support deductions and payments made to the Child Support Agency by the father as at 28 July 2008. This was contained in the material produced by the Child Support Agency being Father’s Exhibit 3;
g)
Mother’s Exhibit 7: Child Support Assessment for period
1 September 2009 to 30 November 2010. This was contained in the material produced by the Child Support Agency being Father’s Exhibit 3;
h)Mother’s Exhibit 8: Pay statement of the father’s.
Determination
The determination of this matter is governed by s.117 of the Act and the relevant case law.
To quote from the decision of my brother, Federal Magistrate Walters in Mathieson & Hamilton [2006] FMCAfam 238, which decision was cited with approval in an appeal from the decision of Federal Magistrate Roberts in the matter of Wreford & Caley [2010] FamCAFC 21.
The process involved in the consideration of an application for departure from an administrative assessment of child support was explained by the Full Court in Gyselman (1992) FLC 92-279 at 79,064-5, under the heading “Division 4 – Orders for Departure from Administrative Assessment in Special Circumstances”. The Full Court said (inter alia):
Section 117 is the critical provision.
The structure of that section is that s.117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in subsections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
Whether one or more grounds of departure in s.117(2) is established.
Whether it is ‘just and equitable’ within the meaning of s.117(4) to make a particular order.
Whether it is ‘otherwise proper’ within the meaning of s.117(5) to make a particular order.
It is clear from the careful way in which s.117 has been structured that the Court must address each of those three separate issues...
The Court further said:
… Each of those grounds (in s.117(2)) is prefaced by the words, "in the special circumstances of the case". Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. (It has been held) that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases". The approach to the interpretation and application of the particular grounds in s.117(2) must be guided by that qualification.
Thus the first determination is whether the facts support a finding of special circumstances and then whether one of the grounds for a departure exits.
The father is the biological father of the child [X]. This has been shown by DNA testing.
At face value the mother is entitled to child support payable by the father for the support of their son.
There is no dispute that the assessments issued have used anything other than the proper income of the father or the proper income for the mother or child pre-March 2008. However from January 2009 the facts are that [X] had left school in November 2008 and commenced working at [omitted] where he continues to work. The mother failed to notify the Child Support Agency of this change and the child’s income had not been taken into account when the post January 2009 assessments were issued.
The father disputes payments of all arrears other than $4,985.76.
One of the crucial determinations I must make is to reconcile Mother’s Exhibit 1 which is a letter dated 23 September 2005 from the Child Support Agency to the father at his address of Property C and the father’s evidence that he first became aware of the involvement of the Child Support Agency in March 2008.
The father’s oral evidence at the hearing and in his Affidavit sworn
2 June 2008 is unequivocal. He is firm and clear that the first time he realised an application had been made for child support for [X] or that he had a liability for child support was when he received a letter from the Child Support Agency on 19 March 2008 addressed to him at his home at Property C.
The father lives at [H] with his wife Ms N and their children [Y] aged 12 and [Z] aged 6 and has lived there since he purchased the home in 2006. The father was not living at this home in September 2005.
In order to answer this vexed question I have carefully reviewed Father’s Exhibit 2, the Freedom of Information (“FOI”) file from the Child Support Agency, and documents produced under subpoena from the Child Support Agency being Father’s Exhibit 3.
Looking at Father’s Exhibit 2, page 2, Individual Client Details, the father’s name and date of birth are stated and his marital status noted as unknown. The father’s postal address is recorded as Property C. It is written in the records “information recorded 30 May 2008” the basis being “client advice”.
The father’s phone number was recorded as [omitted] on 28 March 2008.
It is clear from a careful reading of the FOI file and the Child Support Agency file, and it was admitted by the mother, that until 28 March 2008 the only telephone number the Agency had for the father was the telephone number given to them by the mother for the paternal grandparents. At the hearing the mother conceded that the telephone number she had given the Child Support Agency for the paternal grandparents was incorrect. Thus it is not surprising that the files reveal the Child Support Agency had been unable to contact the father or his family with the information given to them by the mother and had written off collecting any monies from the father on 26 October 2007.
Importantly the first contact the mother had with the Child Support Agency was on 13 September 2005 when [X] was 12 years old and struggling at school. Despite the mother’s case outline and some of the mother’s affidavits stating [X]’s learning disabilities was a sudden revelation to her in 2005, from the mother’s description of [X]’s current problems he would have struggled at school since he first commenced formal education. [X] is, on the mother’s evidence, virtually illiterate. I accept the child’s behaviour may have significantly deteriorated at this time but his learning disabilities have always been with him.
The recording of the mother’s first contact with the Agency is in Father’s Exhibit 3 a file note dated 20 September 2005:
Form received 13/09/2005
have keyed in details as follows
Payee Name
[Ms Smith]
otherwise known as Ms Dalaba – this is what the payee is registered as on cuba.
The mother has used the surname Smith for herself and her children throughout their lives. [X] is registered as [X Dalaba] on his birth certificate but has been known as [X Smith] throughout his school life. This is the same surname as his older brothers and sister.
The file note records the mother’s details. For the payer details the mother provided the name, Mr Nillson, no date of birth or address was provided:
payee provided details of payers father – Mr Nillson Property M Sydney [phone number omitted] ( I called this number but was advised that no one by the name [Nillson] lived at this number)
The telephone number provided by the mother was not correct, nor was the spelling of the father’s surname and the exact street number of the paternal grandparent’s home was not given either.
From the Child Support Agency’s own records it is clear they did not have an address for the father in 2005 let alone his [H] address. Further he was not living at this address until he purchased the home in 2006. Yet Mother’s Exhibit 1, the Agency’s letter dated 23 September 2005 addressed to the father’s [H] address, would suggest otherwise.
It was submitted to me by Ms Friedlander that Mother’s Exhibit 1 was not created on 23 September 2005 but at a time after the Child Support Agency became aware of the father’s address from information he gave them in March 2008. Further it was submitted that in March 2008 the Agency created the 23 September 2005 letter to coincide with their first acceptance of the mother’ claim and in line with their collection procedures.
I accept that submission after hearing all the evidence as it is the only explanation that fits with the chronology of events.
The mother did not know where the father lived in 2005, or the grandparents correct phone number or exact street number and the Child Support Agency had no record of the father’s address until he informed them of it in March 2008. The father did not live at this address until 2006 thus I accept the father’s position that he did not receive a letter from the Agency in September 2005 as the letter was not created until a time in March 2008.
Secondly, as the telephone number the mother gave to the Child Support Agency for the paternal grandparents was incorrect there is no way the father could have become aware from the Agency that they were actively seeking his whereabouts.
I accept the father’s evidence in his Affidavit and confirmed orally that it was not until he received a letter dated 19 March 2008 from the Child Support Agency that he had any idea he was liable to pay child support for [X].
This finding alone supports my finding of a special circumstance which is necessary before I can exercise my discretion under 117(2) of the Act.
The next finding is whether one or more of the grounds of departure under s.117(2) exist. I find the father has two other children to support and due to that commitment his capacity to support [X] is significantly reduced.
Thus I find both a ground for departure and special circumstances exist in this matter.
However, that is not the end of the matter. There are two further steps I must take namely, whether it is “just and equitable” within the meaning of s.117(4) to make a particular order and whether it is “otherwise proper” within the meaning of s.117(5) to make a particular order. The particular order sought is to reduce the arrears of child support up to March 2008 and from 1 January 2009 to date to nil.
To re-iterate the father’s contentions are that the arrears up to March 2008 ought to be reduced to nil as he was entitled to believe he was not [X]’s father because of the conduct, actions, and behaviour of the mother.
For the arrears from January 2009 to date the contention is the child had left school and was working.
The starting point is that the father’s name is not recorded on the child’s birth certificate. However, I have the discretion to look behind a public record and make a declaration of paternity. After the DNA testing, we know [X] is the father’s child.
From a careful reading of the FOI material and the Child Support Agency’s file the following emerge.
I take note of the fact that as soon as the father received an assessment for child support he sought DNA testing and that he was consistent in his discussions with the Child Support Agency that he was not the child’s father.
I accept the father’s comments to the Child Support Agency initially that he did not know a Ms Dalaba and had never lived with her were incorrect. He confessed to that untruthfulness some two weeks after the initial contact with the Agency. He told the Agency that they had lived together and there had been a child but that the mother had told him he was not the father and that his name was not on the birth certificate.
Reviewing the parties’ evidence I make the following findings.
The father’s evidence.
The father married Ms N [in] 1994. He has two children with his wife, [Y] aged 12 and [Z] aged 6.
The father said he has arranged his financial life and made decisions based upon the fact that he believed he was not [X]’s father. That is, he and his wife purchased a home in 2006 and he has two children to support.
The father is a hard worker. He is a [occupation omitted]. He has a base salary of some $45,000 per annum, but works significant overtime and at times his income is $88,000 per annum. That $88,000 per annum is earned by him at significant personal cost to himself and obviously places on his wife the role of full-time parent and homemaker.
Going now to the evidence he gave concerning the period when he and the mother lived together.
The parties commenced a sexual relationship in 1991 and commenced cohabitation in 1992. [X] was born in 1993. They separated when he was three to four months of age.
The father said when he and the mother got together she had two children and told him she could not have any more children. The father said this suited him as he was only 21 at that time. The father said that about a year after co-habitation the mother was behaving differently. He pressed her about what was wrong and she said she was pregnant. The father asked the mother “How could this be?” and she replied that she did not know.
The father agreed that he asked the mother to have the pregnancy terminated but that she said it was past the time for her to be able to do this safely.
The father recalled when the mother told him she was pregnant. The father asked her about the pregnancy and he said she told him “the child is probably not yours”.
The father agreed that he was not happy with the pregnancy. The mother had two other children and there were stresses in the relationship.
When pressed why he would attend doctors with the mother in those circumstances he said he really wanted to find out if she was pregnant.
The father agreed that he was behaving very poorly at this time. He was drinking to excess, taking drugs and he was aggressive and at times violent. The father said he regrets his behaviour at that time. He said:
I did not want to be a dog to this child and I accepted her decision to have the baby.
The father was present at the birth as they were still living together and he recalls the nurses saying to the mother:
Here is the birth certificate. Fill it in for the baby.
The father then said he recalled the nurses asking the mother:
Who is the father going to be on the birth certificate?
The mother said to the nurses in the presence of the father:
The father is unknown.
The father said the mother said that the child would have her last name. The father said that the mother named him both as to his Christian name and his surname.
The father was not sure whether filling out of the details on [X]’s birth certificate was done by the mother on the day of the child’s birth or the day after. However, he was certain it was done at the hospital and that the nurses were present.
The father said he did have a conversation with the mother about naming the baby. His recollection was that the conversation went something like this:
I said to her “Should my name be put on the birth certificate?” She said “No”.
The father said:
I agreed with the mother’s decision. I was only 22.
The father recalled a conversation about the child’s Christian name but he could not remember how it happened. He said the mother said something like:
I would like to call him [X].
The father said he replied something like:
Well you are the mother.
The father admitted he did not question the mother about why she picked the name [X] and he said he had no real input into the name of the child. He stated he had no objection, and that this what the mother said.
The child’s middle name is [omitted], the father’s name. The father said he did not discuss with the mother the child’s middle name and has no recollection of such a discussion.
The father said he had been drinking at times he attended the hospital.
The father said he recalled a conversation about social security payments and money when the mother was filling in details on the birth certificate. The father said he was working for [omitted] at the time and that the mother was receiving social security. He recalled her saying:
The father’s details are unknown.
The father said he was fine with that. The father was pressed about why he was fine with that and said:
Because I had doubts that the child was mine as well. I doubted the child was mine at that time and I asked her if the child was mine. She said it was probably not my child. She told me about other men she was involved with whilst we were together. We had no further conversations about it.
The father said that the conversation sticks in his mind now because we are re-talking about his history and he has thought long and hard about it since he received the child support assessment.
The father said that a month after they broke up he approached the mother and yelled at her across the street, as there was an AVO out against him not to approach her, and said:
Can we discuss the situation and why we broke up and why I acted as I did?
The mother called out to him:
No. We cannot.
The father said that he received a redundancy from [omitted] and because he felt he had done the wrong thing in the relationship, he wanted to offer the mother some money from his redundancy. The father said that he called out that he wanted to pay her some money and the mother said:
Go away. I don’t want your money.
She also yelled to him that it was not his child and to stay away.
The father said that was the last conversation he had with the mother.
The father was pressed on why he would offer the mother money. The father said:
I had done the wrong thing by the child. He was a baby and even though I had doubts that he was mine I still felt that he was a child and that I should help him. I paid all the debts that arose after the split up, I attended counselling after the split up, I admitted that I was using alcohol and drugs to excess. I was still doing this when I approached the mother to pay some money for the child.
The father said that he felt a need to financially support the child even though he did not believe he was his because of his poor behaviour towards and treatment of the mother in the relationship.
The father was then asked:
Well what has changed? You were happy to support the child a month after separation, yet object to the assessment issued.
The father said:
I accept that I have a liability to pay child support, but I want that assessed by the Court in all the circumstances of the case.
The mother’s evidence.
The mother said that she and the father wanted a child and that she stopped taking the pill when they commenced cohabitation. The mother said the father told her it was only fair that he had his own child given that she had two other children.
The mother denied that other men were hanging around her or that she had other sexual partners. The mother said that while she and the father were in a relationship he was her only sexual partner.
The mother agreed the father was with her in the delivery room. She said [X] was born with the cord around his neck. This may explain the child’s significant learning disabilities, although this is not accepted by the mother from the evidence.
The mother said she filled out the birth certificate at home, not at the hospital. The mother said she gave him a Macedonian first name [omitted], shortened to [X]. The father is of Macedonian origin.
It was put to the mother that it was unusual to fill out a birth certificate at home and that the father’s evidence of the nurse bringing the form to her and asking it to be completed at the hospital was a more common practice than that as asserted by the mother. The mother did not agree.
There are two separate issues here. The first is not recording the father as the father on the birth certificate, and the second is not recording the father’s surname as the child’s surname.
The mother said she did not fill in the father’s name on the birth certificate because the father was abusive towards her, which he has agreed he was at the time, and she was scared of him. I accept she had reason to be scared of him if only from the father’s own evidence. She said the conversation went something like this:
We have to fill out the name for [X] on his birth certificate. The father said you fill out the certificate. I said to him “well what about the name of the father?” He said “leave that blank”. I asked him why and he said “it would be better if we do”.
In relation to the child’s surname the mother said to the father words to the effect:
Do we put your name down or my name down?
He said:
Put down whatever name you want.
I said to him:
Which one, mine or yours.
He repeated:
Do what you want.
The mother said she chose to put her surname as [X]’s surname as she did not want the father to get angry, because when he said to her “Do what you want” it meant “I do not want my surname as his surname”.
I have difficulty with this evidence both as supporting the mother’s case she was scared of the father and as to why she did not record as [X]’s last name his fathers’ name.
The mother said she was scared of the father because he was abusive, and the father agreed he had behaved badly. He admitted he turned up to the hospital drunk. Yet the mother is able to converse with him about the name of the child – his first name and surname – and able to question him not once but twice about what surname to put down.
Furthermore, when the father says to her “put down whatever name you want” and “do want you want”, rather than recording the father’s surname down as child’s surname the mother records her surname because she tells me “Do what you want” is for her a code which means “ I do not want my surname down as his surname”.
The mother then said that at [X]’s birth:
The father was happy. I was happy. This was the first grandchild for his parents.
I see an inconsistency with this evidence of happiness and evidence that the father told her to leave the father’s name blank and his words to her “do want you want” meant “I do not want him to have my surname”.
If, as the mother says, the father and his family were happy concerning the birth this is all the more reason for her to have at least recorded the father’s surname as the child’s surname on the birth certificate. Further, this evidence is inconsistent with her being scared of the father at this time.
On the mother’s own evidence I can see no reason why she would not have put down Nillson as the child’s surname.
On the other hand the father’s evidence that the mother said to him that [X]’s father is unknown and that the mother named the child sits neatly with his evidence that he and the mother doubted [X] was his son.
Both parents agree that the recording and choice of the child’s Christian and surname was left up to the mother. The only basis upon which I can understand the mother’s story is if I accept the father’s version of events. That is, the mother told him upon finding herself pregnant that the child was probably not his. That the father left it up to her to complete the child’s birth certificate as to his Christian and surname and father’s details. That the mother chose not to record the father’s surname as the surname of the child not from fear but by choice.
It is clear to me on the evidence that the mother’s conduct at the child’s birth pointed to the father not being the father and thus the father formed such a belief.
On the mother’s own evidence she chose the child’s first, middle and last name and I accept the father’s evidence that he left this up to her because he believed the child was not his child.
I have difficulty in accepting the mother’s evidence that that the father and his parents were excited at the birth of the child yet the father by way of a code let her know he did not want the child to have his surname.
The mother said she knew that at separation the father moved to his parent’s residence at Property M.
The mother gave extraordinary evidence orally and in her affidavits of the child ringing the paternal grandparents wanting to speak to the father, and that when they heard his name they hung up on him.
The difficulty I have with that evidence is that the telephone number the mother was using was not the paternal grandparent’s telephone number. Secondly, the child was ringing. Thus the mother would have no idea who the child was ringing.
I do not accept the mother’s evidence that the child rang his grandparents at any time.
The mother said when [X] was three he wanted to know who his father was. She told him she would try to contact him by contacting his parents. However the number she had for the grandparents was incorrect.
The mother used the surname Smith for herself and for [X]’s enrolment at school and the like and not Dalaba as is on his birth certificate. The mother has moved several times including to Queensland on two occasions and thus the father would have had some difficulty in finding the child in the past.
The mother said that she spoke to the father when [X] was approximately three years of age and asked him to see his son and that the father said to her:
I’m married. I’ve got my own kids. I don’t want to see him. I‘ve got two kids and a wife.
The mother confirmed in cross examination that that was the conversation she had with him. The father denied the conversation.
The difficulty with this evidence is that the father had one child in 1996. His second child was not born until 2002. Further I have no idea what telephone number the mother rang to speak to the father. She could only say it was mobile number.
The mother said she saw the father after separation. I do not accept this evidence. Her actions were designed to put as much distance as possible between she, [X] and the father. The mother’s evidence is disjointed. I do not accept her version of how [X] came to have her surname and not his fathers’ surname. I do not accept her evidence that she or the child contacted the father or had contact with him after separation.
I accept the father’s evidence that the last contact he had with the mother was a month or so after separation when [X] was but a baby.
The mother’s actions in using her surname as the child’s surname and recording on the child’s birth certificate that the father was unknown, when the father was present at the birth, is evidence which supports the father’s belief that the child was not his and is evidence of the mother’s belief that the child was not the father’s.
This evidence is consistent with the father’s version of events and inconsistent with the mother’s.
It is fairly clear to me on the evidence that that up until 2005 the mother set out on a course of conduct to put as much distance between the father, herself and [X] as was possible and that she achieved her goal.
I accept that it was not until the father received a letter dated 19 March 2008 from the Agency that he was aware the mother believed he was the father of [X].
The mother’s legal representative submitted that as the father had offered to pay money to support the child one month after separation that I could find he knew he was the father of the child. I reject that submission for the following.
I was impressed by the father’s forthrightness and acceptance that his behaviour during the parties relationship was poor, that he drank to excess, used illicit substances and that he was aggressive and at times violent. That is consistent with what the mother said. I also accept that he believed he had a financial responsibility to the mother in that he took over debts they had at separation and that when he came into some money, given that the child was but a baby, he believed it was appropriate that the mother received some money.
I do not find that this conduct indicates the father knew he was the father of the child, rather supports his evidence of guilt arising from his poor behaviour.
The father said he wanted the relationship to continue and to understand what had gone wrong, and that the mother understandably wanted nothing to do with him. That story has the ring of truth. I accept that the father did behave badly towards her. I accept that the mother did not want anything to do with him and she lead him to believe [X] was not his child.
Just and Equitable and Otherwise Proper
Having found special circumstances I must now turn to the case law to determine whether it is just and equitable to discharge the arrears and whether it is otherwise proper to discharge the arrears for both periods.
As to the father’s financial position.
The father gave a value for his home of $460,000. There was no objective evidence in reply or challenge to this assertion thus I accept that his home is worth $460,000.
I accept the home is encumbered by two mortgages on which interest only is paid. The total mortgages are around $330,000. There is an equity of some $130,000 which both he and his wife have an entitlement to.
I accept the father is the only breadwinner for his young family and his wife is the primary parent and homemaker.
The mother’ financial position.
The mother works part time and on a casual basis and is supported by Centreline and Workers compensation payments. She does not own a home. Her husband and father of her fourth child work, however he has sustained an injury and is on a pension at the present time.
The father has a secure income, works considerable overtime and has a property. He solely supports his wife and two children. Nonetheless the father is in a superior financial position to the mother although his financial circumstances are modest.
Although I have found the father to be in a better position financially to the mother if a lump sum is ordered to be paid significant financial hardship will be suffered by the father and his family.
Looking at the father’s Financial Statement, Father’s Exhibit 1, his gross income is $1,916 weekly. His expenditure weekly is: Tax - $558; Mortgage payments of interest only - $566; rates, insurances, credit card payments the like. He asserts his weekly expenses for himself are $465, his wife $266 and children $361. This totals $2,311.
On his evidence he has a weekly shortfall of $395. This cannot be sustained by him and is not reflected in debt. Even if I reject his stated discretionary expenditure, after the father pays his fixed expenses of tax, mortgage, insurances, credit card payments which total $1,129 he has $787 a week for discretionary expenditure to support himself, his wife and two children.
In addition the father has superannuation, car, and equity in a home.
The mother’s financial position is set out in her Financial Statement filed 8 January 2010.
In that statement the mother says she pays weekly: tax of $64, rent of $250, hire purchase payments $27, personal loan for a car $133 with fixed expenses totalling $474 weekly.
Her weekly gross income is $537 being $100 family tax benefit and $437 workers compensation. Her daughter [B] receives a disability pension of $250 weekly, her husband a pension of $202. [X] has an income of $50 a week from working. Thus she says there is $1,039 coming into the home. This would leave $565 left to support the mother’s family which is her husband, [B], [X] and her youngest child.
However in her oral evidence the mother said [X] was working at [omitted] in late 2008 and in 2009 after he left school “but could not manage it”. He is still working two days a week 5 to 6 hours a day at [omitted].
In her affidavit of 25 June 2009 she says at paragraph 18 [X] obtained a position in [workplace omitted] in November 2008 and worked
30 hours a week for 4 months. After that time he did not turn up to work, received four warnings and was due to commence his first 5 hour shift on 25 June for which he earned $50 a week. He is now working two five hour shifts on the mother’s oral evidence and must be earning about $100 a week for that work.That is not what the mother disclosed in her Financial Statement filed January 2010. She stated [X] was earning $50 a week.
Similarly in cross examination the mother admitted her income from workers compensation, working and family tax benefit was $704 a week not the $537 disclosed in her Financial Statement. Thus her income is an additional $167 a week to that disclosed and [X]’s income is $100 a week not $50. Thus the surplus income coming into the mother’s home is $782 a week not $565. This is a similar surplus income to that in the father’s home. I accept this is not the mother’s income alone but the combined income for the family.
[X] has significant learning difficulties and other behavioural issues. He is virtually illiterate. He left school in 2008 after many absences and erratic attendances at school. He is working at [omitted] in 2009 on a part time basis. Although the mother would not agree he has a degree of brain damage, the cord was wrapped around his neck at birth and she said the doctors were concerned about possible brain damage. He is developmentally delayed.
The mother denied that [X] needed speech therapy in her oral evidence yet in her affidavit the mother alleged she had a telephone conversation with the father and asked for money for [X]’s speech therapy.
The mother gave evidence that [X] now wishes to attend TAFE in 2010. This hearing took place on 19 February 2010. No enquiries had been made by him or her regarding a place at TAFE. The mother was taken aback when it was put to her that had [X] wanted to attend TAFE in 2010 he would have needed to have enrolled prior to 19 February 2010.
[X] apparently wants to do Year 9 and Year 10 at TAFE and will need to work on his reading and writing to achieve his goals.
The Law
I was referred to many cases by the parties legal representatives: Aspen & Selby [2007] FAMCA 872; Mathieson & Hamilton [2006] FMCAfam 238 a decision of Federal Magistrate Walters; Wreford & Caley [2010] FamCAFC 21; Hewart & Wignall [2009] FAMCA 1132; In the Marriage of Gyselman (1991) 15 Fam LR 219.
I found the decision of my brother Walters FM in the matter of Mathieson & Hamilton of great assistance and will follow the method by which he determined the applications before him, being in part both enforcement and discharge of child support arrears. His decision was adopted in its entirety and approved in the recent decision of the Full Court of the Family Court of Australia in Wreford & Caley.
In Wreford The Full Court stated at paragraph 70 through to 75:
70. What matters then should inform the exercise of discretion in determining what constitutes “just cause”? In Mathieson & Hamilton (supra), Walters FM, in dealing with an application under the Child Support (Assessment) Act 1989 (Cth) distilled what he saw as a number of principles, considerations or factors relating to enforcement of arrears of maintenance or child support. In doing so, his Honour considered, in addition to enforcement, whether there should be any discharge of the arrears. His Honour discussed three principles and a number of considerations and held:
(a) The "12 months rule" is extinct. It was, in any event, never more than a discretionary guideline or rule of practice, and the 12 months period was an arbitrary one.
(b) The Court has discretion, not only as to the period in respect of which accumulated arrears of maintenance or child support will be enforced, but as to whether they should be enforced at all.
(c) The Court is not prevented from enforcing arrears of maintenance or child support simply because the time for payment of the same has long since passed, or because (in the case of child maintenance or child support) the relevant child has long since left school, commenced paid employment or otherwise ceased to require such child maintenance or child support.
(d) In considering whether to enforce arrears (and, if so, for what period), the Court's discretion is unfettered, but the following considerations (at least) might be considered to be of relevance:
i) whether the party who was obliged to pay the maintenance or child support ("the Payer”) knew or ought to have known of his/her obligation to pay maintenance or child support;
ii) whether the party entitled to maintenance or child support ("the Payee”) pressed or pursued – directly or indirectly – his/her rights to the same, and whether the Payee did so in a timely fashion;
iii) whether, by words or conduct, the Payee led or permitted the Payer to form a reasonable view that the Payer’s obligation to pay maintenance or child support would not be enforced, and whether (and in what way) the Payer was thereby induced – whilst acting in good faith – to change his/her financial position;
iv) whether, by words or conduct, the Payer led or permitted the Payee to form a reasonable view that the Payer’s obligation to pay maintenance or child support would be met, and whether (and in what way) the Payee was thereby induced – whilst acting in good faith – to change his/her financial position;
v) whether the Payer had (other) appropriate or adequate reasons for failing or refusing to pay;
vi) the financial circumstances of the Payer, the Payee and the children during the period of the non-payment, and at the time that the enforcement of the arrears is sought (including the Payer’s ability to pay at all relevant times);
vii) whether the Payer has made a [sic] full and frank disclosure of his/her financial position at all relevant times; and
viii) whether the Payee has made full and frank disclosure of his/her financial position at all relevant times.
71. His Honour concluded by saying (at paragraph 230):
The Court should be very cautious not to encourage a Payer to metaphorically sit back and ignore his/her liability for maintenance or child support, and to continue to ignore such liability “…hoping for the best.”
72. While Walters FM was dealing mainly with the question of whether to enforce an order, the matters he dealt with are equally applicable to an application to discharge arrears.
73. We would add to the matters raised by Walters FM the comments of the Full Court in Vakil (supra) that a consideration of “just cause” should include a consideration of some of the relevant sections of the Act which might pertain to these matters.
74. These would include comparable provisions in Part VII of the Act including:-
• s 66J which specifies the matters to be taken into account in considering financial support necessary for the maintenance of a child;
• s 66K which specifies the matters to be taken into account in determining the contribution that should be made by a party;
• s 66C which includes the principle that parents have the primary duty to maintain children;
• s 66D which includes the principle that a step-parent has a duty to maintain a child only if the court has determined, by order, that it is proper for a step-parent to have that duty;
• s 66M which specifies when a step-parent has a duty to maintain a child;
• s 66B which describes the objects of the Division to which we were referred by counsel for the mother in the first place; and
• s 66S which provides for the modification of child maintenance orders.
75. We should also mention that, as the relief which the father sought was retrospective, it was incumbent upon the father to adduce evidence relative to, say, ss 66J and 66K of the Act in relation to each period during which the arrears which he was seeking to discharge accrued.
Thus I must determine not only whether there is a just cause to discharge the arrears but even if I find a just cause I must then separately determine whether or not the order ought to be discharged. In both determinations I must have regard to not only the relevant matters and principles under sections 117(2), (4) & (5) of the Act but relevant sub-sections of section 66 of the Family Law Act.
In this case, as in Mathieson & Hamilton, Gyselman and the other cases referred to, the onus of satisfying the Court that there is a just cause to discharge arrears lies with the father, as he is the natural parent of this child.
I am satisfied on the evidence before me that the father did not know he was the father and he was entitled to believe that he was not the father of the child due to the conduct and actions of the mother at the child’s birth, at separation and after separation.
I find that the father had no knowledge he had an obligation to pay maintenance until he received his first communication from the Child Support Agency on 19 March 2008.
I find that the mother did not notify the Child Support Agency until 2005 that the Applicant was the father of the child and that she wished child support to be collected from him. The simple fact is the child was 12 years of age before the mother pursued her child’s rights for maintenance from the person she believed to be the father.
The mother was delinquent in pursuing her child’s rights for maintenance. She gave incorrect information to the Child Support Agency as to addresses and telephone numbers of the paternal grandparents and spelling of the fathers’ surname. The mother took no steps to inform herself of the correct mailing address or telephone number for the paternal grandparents or the father.
As at the date of the hearing the mother still did not have the correct telephone number or address for the paternal grandparents who had lived at the same address since before [X] was born.
I find that the mother by her words to the father whilst she was pregnant that she did not think the baby was the father’s, her conduct in leaving the father’s name as unknown on the child’s birth certificate and placing her name as the child’s surname, permitted the father to form a reasonable view that he had no obligation to pay support because he was not the father of the child.
I find that the father acting upon the mother’s words, conduct and actions made financial decisions on the basis he had no obligation to provide support for [X]. Those decisions included marrying, having two children, and obtaining two mortgages to purchase a home.
The father’s financial position and commitment to support others has significantly changed since he and the mother separated. In the
12 years the mother waited before contacting the Agency the father made financial decisions in the reasonable belief he had no other child to support other than those he had with his wife.
I find the father as the payer had appropriate and reasonable reasons for failing to pay child support and thus accruing arrears for the following:
(1)No assessment was issued to him until 19 March 2008 when he did pay the weekly amount as assessed.
(2)He was led to believe, reasonably on the evidence before me, that he was not the father of the child.
(3)The mother waited 12 years after the child’s birth to make an application of any sort to the Child Support Agency.
(4)The mother failed to inform herself as fully as she could have done at any time of the paternal grandparent’s correct mailing address and telephone number.
I find the financial circumstances of the mother and the child to have been poor during all periods the assessments cover.
I find the father’s financial circumstances to be superior to that of the mother and child for the periods of the assessments.
I find the father has made a full and frank disclosure of his financial position at all relevant times. I find the mother has not been as frank, however this did not occur due to a deliberate act rather through neglect or carelessness.
The father has agreed to pay child support for a period of time after the child had left school and was working in November 2008. Otherwise, the father seeks to discharge arrears pre-March 2008 and post
1 January 2009.
As Walters FM said in his decision of Mathieson & Hamilton:
The Court should be very cautious not to encourage a Payer to metaphorically sit back and ignore his/her liability for maintenance or child support, and to continue to ignore such liability "… hoping for the best”.
I do not find this is such a case. The mother for her own reasons led the father to believe he was not the parent of the child. It is so recorded on the child’s birth certificate by way of father unknown and the child’s surname. I accept the father’s evidence that the mother told him the child was probably not his. The mother waited for 12 years after the child’s birth to ask for support to be paid by the father. The father therefore believed, consistent with the mother’s actions and words at the time of the child’s birth, at separation and for 12 years thereafter that he was not the father of this child.
On these facts I find there is a just cause why I should exercise my discretion to discharge the arrears of child maintenance pre-March 2008.
In relation to the discharge of arrears post 1 January 2009 it is clear on the evidence the child had left school in 2008 and has been working at McDonalds since on a part time basis not that the mother provided any documentary evidence to support [X]’s actual earnings. The mother failed to inform the Child Support Agency of these matters and thus the assessments have issued on incorrect information concerning the child’s circumstances. On the basis of these findings it is also just and equitable that these arrears be discharged from 1January 2009 to date.
The second part of this enquiry is whether there is just cause to so order a discharge of arrears in part or whole as contended for by the father.
In relation to that finding I rely upon my prior finding of facts. However, I must also consider the matters under the Family Law Act, Part VII relating to the obligation of parents to pay for the support of their children. They are ss.66J, 66K, 66C, 66D, 66B, 66S.
Section 66J(1)(a) states that in considering the financial support necessary for the maintenance of a child, the court must take into account the matters mentioned in section 66B.
Section 66B states:
(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Division include ensuring:
(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b) that parents share equitably in the support of their children.
Section 66C states that:
(1) The parents of a child have, subject to this Division, the primary duty to maintain the child.
Without limiting the generality of subsection (1), the duty of a parent to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the parent has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other person to maintain the child; or
(ii) any entitlement of the child or another person to an income tested pension, allowance or benefit.
The father had an obligation in the past to support [X] which he only became aware of in 2008 when the child was 15 years of age. The father has an ongoing obligation to support his wife of some 16 years and their two children aged 12 and 6.
Section 66J sets out the matters to be taken into account in considering financial support necessary for maintenance of child. [X] had needs during the assessment periods and has ongoing needs. He has significant learning difficulties. He required tutoring, speech therapy, counselling and the like. [X] has not completed years 9 and 10 at school and may have difficulties in obtaining full time work.
The mother gave evidence [X] was working at [omitted] in late 2008, in 2009 and continuing “but could not manage it”. He is still working two days a week for 5 to 6 hours a day at McDonalds.
[X] apparently wishes to enter TAFE but little has been done to enrol him at a suitable TAFE. I find [X] is self supporting at this to a level of at least $100 a week and has been since November 2008. The mother has not informed the Agency of his working arrangements.
The mother has a limited capacity to meet the needs of the child both as to her income earning capacity generally and at present she is suffering a work related injury which further restricts her ability to earn an income.
[X]’s step-father has also supported him in the past and continuing but he too is suffering an injury at the present.
[X]’s father has a greater income earning capacity than either the mother or the child’s step-parent. However, a significant contributor to the father’s greater financial capacity comes from his working substantial hours in overtime which increases his base salary by about 55%.
Additionally the father has a wife and their two children to support. I accept the father is in a superior financial position in respect of income and assets than the mother has ever been or is likely to be.
The proper needs of the child. At the time the first assessment was issued [X] was 12 going on 13. He would have benefited from speech therapy, counselling, assistance and tutoring in reading and writing and could still so benefit.
I am unclear as to the manner in which the parents expected the child to be educated. The father has had nothing to do with the child since his birth. All the mother does is talk about what he wishes to do now, which is to attend TAFE, but no steps have been taken by the mother or the child to enrol at TAFE.
Section 66K sets out the matters to be taken into account in determining contribution that should be made by a party.
This includes a consideration of the matters under s.66D which includes the principle that a step-parent has a duty to maintain a child only if the court has determined, by order, that it is proper for a step-parent to have that duty. I do not see that [X]’s step-father has a duty to maintain him. That was certainly not argued before me nor is there any evidence on that issue.
Section 66K refers to other considerations including:
(1)(b) the income, earning capacity, property and financial resources of the party or each of those parties.
I have dealt with that issue above.
One of the special circumstances of this case is that the arrears are for two separate periods. The first for the period 2005 to March 2008, a time I have found the father reasonably believed he had no obligation to support the child, and the second from January 2009 to date being a period when the child had left school and was working part time.
Another factor is that the mother seeks the arrears be paid by way of a lump sum. It is clear on the case law (see Gyselman), that arrears of child maintenance should not be seen as some pot of gold or way of obtaining a share of the other parent’s property.
There is no doubt that for the mother to receive a lump sum approaching $30,000 or $40,000 would be the largest sum of money this mother has ever received.
For the arrears to now be enforced in total back to 2005 would, I find, cause the father, his wife and their two children significant financial hardship. The father and his wife are just making ends meet in paying their mortgage on an interest only basis and providing for their children. If the father did not work the significant overtime he does he and his wife would not be in a position to maintain their home.
There would be undue hardship to the father, but the burden and hardship would fall on his two children who stand in equality with [X] in being supported by their father. The youngest child is only 6 years of age. Having to find some $30,000 or $41,000 in circumstances where he currently has a mortgage of $330,000 would put a significant strain on his already stretched income and I note that interest rates are rising.
When modifying child maintenance orders under section 66S I may vary, modify up or down, or discharge them in part or whole. I must look at the circumstances that have arisen to justify variation.
I accept the father’s position set out in his Affidavit and Financial Statement in relation to his financial circumstances. What this residence does is provide a home for his wife and children.
The father had not purchased his home in September 2005 but in 2006. Had he been aware of his child support obligations to [X] in 2005 or earlier he may not have made a financial decision to purchase home. I find he was not aware of his child support obligations in 2005 or at the time he purchased his home in 2006.
Thus the father has made a financial decision oblivious to his child support obligations at a point in time after the mother made her first contact with the Agency. His decision to purchase his home significantly changed his financial position from what it was in September 2005. The father may have to sell the home he and his wife jointly own to pay arrears.
What has weighed on my mind is that the mother waited for 12 to 13 years before she requested the Child Support Agency to collect child support. When she made her request she was careless in giving them proper information as to the correct telephone number of the grandparents or their address and spelling of Nillson all of which could have been easily ascertained by her.
The Child Support Agency closed its file in 2007 because they could get no further details from the mother. She made little effort, on her own evidence, to find out where the father or the paternal grandparents were living or how she could contact them. The mother was not living in NSW for at least two periods.
As the Full Court says in the decision of Wreford & Caley at paragraph 101:
Delay in collecting by the CSA is materially different to a payee sitting on his or her hands and could not be taken, prima facie, as conduct indicating a waiver of rights or an admission that the payee doesn't need the money.
This is not a delay by the Child Support Agency but by the mother. The mother sat on her hands for 12 to 13 years and then did a half hearted job in providing information to the Child Support Agency. Meanwhile the father has made significant financial decisions such as buying a home oblivious to his child support obligations to [X].
All the case law points to the Court being cautious in discharging arrears where a payer with knowledge he or she had an obligation to pay maintenance has avoided doing so, or to use Walters FM words “hoped for the best”.
The facts of this matter are clearly distinguishable on this most important principle. The father has not avoided paying maintenance. When he received a child support assessment he paid it. He has agreed to pay for a period when he has no liability as the child had left school and was working.
I accept [X] had a need for child support and he has suffered financial hardship in not having his needs met from a share of his father’s income over his life. The mother has also suffered financial hardship in solely supporting [X] in the past. However the mother’s conduct has brought about this sad state of affairs. [X]’s mother made her choices and the father acted upon them. To change the father’s financial position today by ordering payment of a lump sum of child support arrears pre-March 2008 in the circumstances of this matter would, I find, cause significant hardship to the father, his wife and his two young children in the future.
Thus I find it is otherwise proper to discharge the arrears pre-March 2008 on the basis of these findings.
In relation to arrears post-January 2009 again the mother has brought about this situation by not informing the Agency that [X] left school and was working. Although the father has the onus of satisfying me arrears ought to be discharged it is the mother who knows what has happened and her ability to accurately recall facts and events is compromised.
In all the circumstances I find it is otherwise proper that these arrears be discharged from 1 January 2009 to date.
In these circumstances and on the basis of the findings of fact I have made I find:
(1)A ground for departure exits under section 117(2) of the Act;
(2)There are special circumstances which have operated on my discretion to order a discharge of arrears both pre-March 2008 and post January 2009;
(3)It is just and equitable that the arrears be discharged; and
(4)The arrears ought to be discharged there being just cause to do so.
I will exercise my discretion to discharge the arrears of child support as previously described.
This case is different on its facts from those I was referred to in at least two significant areas of fact. The first is that this payer has never avoided his obligation to pay child support or sat on his hands and hoped for the best. The second is the mother’s actions, conduct and words have brought about this situation.
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: A. Morris
Date: 23 April 2010
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