P and M
[2000] FMCAfam 12
•17 August 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & M | [2000] FMCA fam 12 |
| ORDER FOR DEPARTURE FROM CHILD SUPPORT – Non-appearance – Section 117 Child Support Act |
| Applicant: | G W P |
| Respondent: | A E M |
| File No: | ZB2400 of 2000 |
| Delivered on: | 17 August 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 10 August 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| The Applicant in person |
ORDERS
The rate of child support payable by the father G W P in respect of the child R P P be varied, for the period from the commencement of liability to 16 September 1997 to such rate as equates with the amount paid by the liable parent during that period.
The father’s application for departure of the child support assessments from 1 September 1997 be otherwise dismissed.
The effect of this order be stayed until 13 October 2000.
The Registrar of this Court cause to serve by post as soon as practicable, the Deputy Child Support Registrar and the respondent mother with:
(a)Copy of this order;
(b)Copy of these reasons.
The matter is otherwise adjourned until 9.30 am on 13 October 2000, to permit the Deputy Child Support Registrar and/or the respondent mother to make submissions, if any, as to why the order made should not take effect.
If there are no submissions made or no appearance on 13 October 2000, it is the intention of this Court to make a final order in respect of paragraphs (1) and (2).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 2400 of 2000
| G W P |
Applicant
And
| A E M |
Respondent
REASONS FOR JUDGMENT
This is an application by G W P (the “Father”) seeking an order for departure, in effect, to discharge completely any arrears and penalties arising from his failure to pay child support for his son R P P born
3 November 1989 (“the child”).
Background
The parties commenced co-habitation in Queensland in early 1989 and separated in approximately August 1990 when the child was only 9 months old. The father has had virtually no contact with the mother or the child since separation, the mother choosing to move to South Australia. Although I have not seen all the child support assessments (other than for the year to 30 June 1999) I can reasonably infer from the father’s child support statements (on payment history) tendered by the father (Exhibit 1) that following separation the mother lodged an application for child support and continuing assessments have been made since approximately November 1992 to the current time. It is accepted by the father that he is in arrears, and although he says he can’t reconcile the figure, the Child Support Agency by letter dated
10 August 2000 (Exhibit 2) says the father currently owes $6,113,.27 and penalties of approximately $1,628.15. It is this sum that the father effectively seeks to discharge. He says that he seeks no variation to the current monthly liability of $233.00 per month.
Non appearance by mother
The mother did not appear at the date set for the “mention” of the matter. This is despite the evidence that service of the material was effected on her personally at her home in N D, South Australia on
28 June 2000. The father says he has heard nothing from her, which he said in evidence, did not surprise him, because to the best of his knowledge she has never returned to Queensland since separation 10 years ago. Also her financial circumstances are such that he says she could probably not afford to come to Queensland. I considered whether it would be fair to the mother to proceed in her absence. I decided to do so because:
a)No proceedings for enforcement had been taken by the mother;
b)The position of the mother could be inferred from her remarks in a signed “Response Form” received by the Child Support Agency on 10 July 2000 and dated 6 July 2000 (Exhibit 3);
c)The father was available to give evidence, although not subject to the rigours of cross-examination;
d)The history of the matter suggested that the interests of all parties would be served by seeking to clarify the liability of the father;
e)If any order adverse to the interests of the mother was to be made, then I would propose to delay the effect of any such order, until the mother had reasonable opportunity to be heard on the order, if she so desired.
In forming this view I sought to balance the rights of the absent mother with the desire to bring a long outstanding matter to finality. I also considered that the method I proposed to adopt was compatible with the objects of this Court to:
“operate as informally as possible (s3(2) and s42)( of Federal Magistrates Act 1999) whilst seeking to grant a remedy, so that, as far as possible –
·All matters in controversy between the parties may be completely and finally determined; and
·All multiplicity of proceedings concerning any of those matters may be avoided” ( s14(c) & (d) of the said Act).
The father gave evidence and was questioned by me under oath, to ascertain whether there was evidence to sustain his application wholly or in part.
Evidence of the father orally or by documentation and findings on that evidence
The first liability of the child arrears was raised in approximately November 1992.
Between the period from November 1992 to August 1997 the father was employed either as a casual labourer or part time bartender at the P O W Hotel. His income was irregular. During this period the arrears accumulated to a figure of approximately $2,000.00. I accept the evidence of the father that during this period his income was irregular and that he paid, by way of child support, as much as he could reasonably afford.
The father appears to have paid regularly from approximately September 1998 reflected by the outstanding balance at 16 September 1998 of $1,875.67.
In effect, therefore, I find that the outstanding balance of $1,875.67 at 16 September 1998 is substantially the arrears, which accrued during the period November 1992 to August 1997. The mother and/or the Agency has taken no action in respect of those arrears and for that reason, coupled with my acceptance of the father’s inability to pay, I intend to effectively vary the assessments for the period to August 1997 so as to discharge that outstanding arrears.
Between the period from September 1998 to April 2000, the father made no payments. Also during this period, the payment history reflects an additional liability for another child to K J was raised by the Agency against the father. The father says this child came from a relationship of “a few moments” with that mother and his liability only accrued after parentage testing established he was the father of that child.
The payment history document became a little difficult to reconcile from August 1998 because it incorporates both liabilities for the M child and the J child.
The father conceded in evidence that he made no payments for child support between August 1998 and April 2000. He says he actually saved the money during the period, but for a reason which is unclear he says he didn’t receive any assessments to pay. I find during that period he had the capacity to pay as:
a)He acknowledges he saved “about $3,500” during the period;
b)His income tax assessment and group certificates reveal gross income during the relevant period of:
i)To 30.6.98........................... $45,668
ii)To 30.6.99........................... $31,196
iii)To 30.6.00........................... $51,831
c)He says he hasn’t been required to borrow any money from his mother since “late 1997 or early 1998”. His affidavit sworn 13 June 2000 says he incurred a debt to his mother of $8,500 to pay child support prior to “late 1997”.
The father is currently employed as a casual stevedoring employee. He says he gets paid well “when he works” but that the nature of his employment is irregular. Pay slips produced for the period from 3.4.2000 to 6.8.2000, suggest a gross income over 18 weeks of $17,798 (or approximately $989/week).
The father is 42 years of age and currently lives the life of a single man. He claims he has a “semi collapsed disc and degenerative arthritis” arising from his career as a professional boxer. His stated intention is to continue in the stevedoring industry until he retires.
The father’s financial statement sworn 13 June 2000 discloses an income of $432 gross a week. I find his weekly income to be higher than that and more in the vicinity of $900 – $1,000. I accept the income fluctuates wildly from week to week.
His expenses amount to approximately $603 per week inclusive of assessed child support for both children.
H is only assets are a 1989 Ford Carpi and approximately $8,000.00 in superannuation. These assets are exceeded by a debt to his mother (in dispute) and child support arrears.
Overall I found the father a frank and truthful witness. He expressed regret that he has no contact with either of the children from his brief liaisons. He expressed a desire to continue to pay assessed child support “as long as he can afford it” because “it is the right thing to do”.
Mother’s financial situation and proposals
As I indicated earlier in these reasons, the mother was not present at the hearing of the matter on 10 August. The father did produce a Child Support response form dated 6 July 2000 (Exhibit 3) signed by the mother. Relevantly the Response Form reveals:
a)She agrees that there has “never been any clear arrangements made for contact”;
b) Her income from work “was low as she only worked part-time in a hotel and my pension was affected by this work”;
c)The mother did not accept the father’s details about his income, expenses, assets and debts on the application form, saying “I find it hard to believe he owes his mother”;
d)She estimated her total pension and government allowance income (which I note includes a carer allowance and Child Disability Allowance for her other child) at $16,877.76 per annum. She does not reveal any income from wages this year although the father says he thinks she may have up to 2 part day’s work as a bar attendant;
e)Her expenses appear to be within the normal range, although the father asked me to note that the mother has purchased a Holden Commodore in November 1999 for over $16,000, which she appears to be paying off to Australian Central Credit Union Ltd by monthly payments of $265.00;
f)Relevantly at Question 30, the mother says “I do not think the arrears should be annulled as I feel Guy has not been truthful as to his financial situation in the past.” My suggestions on this matter are to:
i)Look at his earning capacity in the periods of arrears build up and to reassess the periods on true income;
ii)Lump sum payment of $4,000.00, on receiving this amount the outstanding amount be annulled.
The law
Section 117 of the Child Support Act 1989 is the relevant section and sets out a three stage process for determining departures from Child Support Assessments s117(1) requires the Court to be satisfied that:
a)“In the special circumstances of the case” one or more of the grounds outlined in s117(2) exist before the Court can make an order for departure; and
b)That under s117(1)(b)(ii) it would be just and equitable as regards the child, the carer entitled to the support and the liable parent; and
c)That it would be “otherwise proper” to make a particular order.
In the Full Court decision of GYSELMAN the Court states that each of these steps must be addressed as separate issues.
It is clear from the careful way that s117 has been structured that the Court must address each of those separate issues.
In this case, I have formed a view that the matter should be divided into a consideration of 2 distinct time periods:
a)To September 1997;
b)From September 1997 to the current time.
Period to September 1997
I am satisfied on the evidence that the employment of the father to approximately September 1997 was sporadic. I am satisfied that the father could reasonably have sought a variation at the time but either chose not to or didn’t know what to do; the mother could have sought enforcement of arrears (which had in fact, accumulated since November 1992) but chose not to do so; the father did take loans from his mother in an effort to meet his child support obligations. I find that the assessment during the period to September 1997 to the extent that arrears accumulated, resulted in an unjust and inequitable determination of the level of financial support to be provided by the liable parent, for the child because of the income and financial resources of the liable parent.
In my judgement, these facts constitute sufficient special circumstances within the meaning of s117 (2)(c) of the Act for departure during this period.
On the evidence available, it seems that the child and the carer entitled to child support have waived the benefit of the unpaid child support, which accrued during this period by:
a)Not seeking to enforce payment;
b)Acknowledging, as the mother does in Exhibit 3, that she would propose reducing the arrears to $4,000.00 after payment of which, the mother proposed the “arrears annulled”.
In the circumstances whilst again emphasising that I am satisfied the payer/father had less income during this period, I determine it is just equitable to depart from the administrative assessment during that period as required by s117(4). In view of the time that has elapsed since that part of the arrears accumulated, I have had regard to the hardship that would be caused to the child and to the carer, but believe the order I propose to make in respect of the balance of the arrears will go someway to relieving that hardship.
In all the circumstances, I believe it is “otherwise proper” within the meaning of s117 (5) to make the order sought in respect of part of the accumulated arrears.
Post September 1997 period
It appears that child support, as assessed, was paid regularly during the period from September 1997 to approximately September 1998 and no additional arrears, as a result, accrued during this period.
After September 1998, as set out above in my findings of fact, the liable parent was in receipt of a regular income; was not required to take loans from his mother; and acknowledges he actually saved the amount payable but has since spent it.
I infer, from the long history the liable parent has with the Agency, that had he wished to pay amounts “on account” of child support he both had the capacity during this period to do so and knew where to pay it. The fact he says he didn’t know the amount to pay or hadn’t received an assessment does not excuse his default.
It follows that I find no special circumstances existed during this period to justify the consideration of any departure. As a result of the threshold test, required by s117(2), not being satisfied I find no ground for departure during assessments during that period and I am not required to consider the satisfaction of the tests imposed by s117(4) and s117(5).
Penalties
The applicant essentially sought a discharge of penalties imposed as well. The penalties amount to not more than $1,628.15 – although I am unable to determine what proportion of those penalties attach to child support liability for the M child. Penalties accrue administratively under s67 of the Child Support (Registration & Collection) Act. I have no power to reduce or remit any late payment penalty. As I propose to provide a copy of these reasons to the Agency, all I would observe is that the Registrar may consider exercising his discretion to remit penalties imposed on the child support arrears payable at
16 September 1998 of $1,875.67.
Orders
Section 118 refers to the range of orders that may be made. There is no capacity to “discharge” arrears as that relief is commonly sought where child or spouse maintenance orders are in issue. The structure and philosophy of the Child Support Assessment Act coupled with the express powers of s118, make it clear that in accordance with my findings, the appropriate order to be made is:
(1)That for the purpose of s118 and Regulation 9 of the Child Support (Registration and Collection) Act and Regulations the rate of child support payable by the father G W P in respect of the child R P P be varied, for the period from the commencement of liability to August 1997 to such rate as equates with the amount paid by the liable parent during that period.
This will, in effect, mean that the liable parent still has an obligation to satisfy the arrears of child support and such penalties (as may not be remitted or reduced) outstanding after the variation by this order has been calculated by the Agency.
In this regard, it is open to the Deputy Child Support Registrar to commence proceedings to recover the amount outstanding as a debt under s113 of the Child Support (Registration and Collection) Act. Based on the evidence produced to the Court in this matter, it seems the only likely method of recovery is to garnishee the father’s wages (in the absence of an agreement) for such additional sum, as may be required to reduce the arrears and any penalties. There appears to be no assets of any significance.
The commencement of proceedings for enforcement are only likely to further delay the recovery of arrears for the benefit of the child and incur the parties in unnecessary cost. It is for this reason that I have decided to provide the DCSR with a copy of these reasons as well, in a hope that the Registrar may be able to reach some agreement with the liable parent for payment of arrears and penalties over an appropriate time period.
Formal orders
I order that:
(1)The rate of child support payable by the father G W P in respect of the child R P P be varied, for the period from the commencement of liability to 16 September 1997 to such rate as equates with the amount paid by the liable parent during that period.
(2)The father’s application for departure of the child support assessments from 1 September 1997 be otherwise dismissed.
(3)The effect of this order be stayed until 13 October 2000.
(4)The Registrar of this Court cause to serve by post as soon as practicable, the Deputy Child Support Registrar and the respondent mother with:
(a)Copy of this order;
(b)Copy of these reasons.
(5)The matter is otherwise adjourned until 9.30 am on 13 October 2000, to permit the Deputy Child Support Registrar and/or the respondent mother to make submissions, if any, as to why the order made should not take effect.
(6)
If there are no submissions made or no appearance on
13 October 2000, it is the intention of this Court to make a final order in respect of paragraphs (1) and (2).
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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