Pirelli and Pirelli & Anor

[2018] FamCA 411

FAMILY COURT OF AUSTRALIA

PIRELLI & PIRELLI AND ANOR [2018] FamCA 411

FAMILY LAW – CHILD SUPPORT – Application for departure – where the mother seeks that the father pay the child’s private school fees and associated costs in addition to the assessed amount – where the father seeks the application be adjourned until the latest assessment is determined – where the mother has established a ground for departure – where it is just and equitable and otherwise proper to make a departure order.

FAMILY LAW – CHILD SUPPORT – Payment in a form other than periodic payment – where the mother seeks the father pay all school costs and private health fund insurance premiums for the child by way of non-periodic child support – where in the special circumstances of the case it is just and equitable and otherwise proper to order payment in a form other than periodic payment.

Child Support (Assessment) Act 1989 (Cth)

Babbit & Babbit (2011) 46 Fam LR 77
Gyselman & Gyselman (1992) FLC 92-279
Saberton & Saberton [2013] FamCAFC 89
Weir & Weir (1993) FLC 92-338

APPLICANT: Ms Pirelli

1^st RESPONDENT: Mr Pirelli

2^nd RESPONDENT: Pirelli Pty Ltd as Trustee for The Pirelli Trust

FILE NUMBER: BRC 778 of 2017

DATE DELIVERED: 6 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ginklater-Steele

SOLICITOR FOR THE APPLICANT: Ramsden Lawyers

1^ST RESPONDENT: In person

2^ND RESPONDENT: Mr Pirelli

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”), there be a departure from the administrative assessment of the child support payable for the child, X born … 2010 (“the child”) by Mr Pirelli (“the father”) to Ms Pirelli (“the mother”).

2. The annual rate of child support payable by the father for each calendar year for the child be in accordance with the administrative assessment of the Agency responsible for the determination of administrative assessments.

3. In addition to the child support payable in accordance with Clause (2) above, and pursuant to s 117 of the Act, the father pay child support to the mother as follows:

   (a)for so long as the child continues to be enrolled to attend school at the J School (“JS”):  the amount calculated in accordance with the following formula, which shall be payable by the father on or before the 28^th day of each calendar month:

   A x (4/12)

   Where:

   A = the amount per Term in each calendar year for the child to attend JS based on the JS Domestic Fee Schedule published each year by the JS on its website from time to time (such amount payable to be inclusive of tuition fees and fees for resources, camps and excursions):  or

   (b)in the event that the mother and the father agree, in writing, for the child to attend a school other than JS and the child is no longer enrolled to attend at JS: the amount calculated in accordance with the following formula, which shall be payable by the father on or before the 28^th day of each calendar month:

   B x (4/12)

   Where:

   B = the amount per Term in each calendar year (inclusive of tuition fees and fees for resources, camps and excursions) for the child to be entitled to attend the school he is then enrolled in.

4. For the purposes of calculating the amount payable by the father pursuant to Clause (3) above, the mother shall and is authorised to:

   (a)       notify the Agency in writing of:

   (i)for so long as the child continues to be enrolled to attend school at JS: the amount payable per Term in each calendar year for the child to attend JS based on the JS Domestic Fee Schedule published each year by JS on its website from time to time (such amount payable to be inclusive of tuition fees and fees for resources, camps and excursions);  and

   (ii)in the event that the child is no longer enrolled to attend JS: the amount payable per Term (inclusive of tuition fees and fees for resources, camps and excursions) in the relevant calendar year for the child to entitle him to attend the school he is enrolled in;

   (b)include the relevant JS Domestic Fee Schedule published by JS on its website with any notification pursuant to Clause (4)(a)(i);  and

   (c)include the relevant Term Fee Schedule published by the relevant school with any notification pursuant to Clause (4)(a)(ii);  and

   (d)       send a copy of any such written notification forthwith to the father.

5. Pursuant to s 124 of the Act, the father shall pay to the mother, by way of non-periodic child support for the child, the following:

   (a)all school costs (defined as the costs of or associated with: extra-curricular activities as agreed between the parties, school uniforms and shoes, sports uniforms, school books, excursions (exclusive of interstate or international travel), private tutoring fees and school related equipment and events) not otherwise the subject of any orders herein and which are incurred as a result of the enrolment of the child at school;  and

   (b)private health fund insurance premiums for the child at the level to which the child is currently insured (or was insured as at 5 May 2017); and

   (c)an amount equal to all the gap payments for medical, hospital, optical, dental, orthodontic, physiotherapy and other similar expenses in relation to the child when the same are not covered by the private health fund rebate.

6. Pursuant to s 125 of the Act, the annual rate of child support payable by the father under any relevant administrative assessment by the Agency is not to be reduced by the amount payable pursuant to Clause (5) above.

7. In order to facilitate compliance with the terms of this Order, Clause 2.8 of the Order made on 5 May 2017 is discharged and the following Order is made in lieu of the same:

   2.8 otherwise up to an amount of $700.00 per week plus an amount for accommodation costs of the respondent of up to $750.00 per week plus such further amount as will enable him to pay any child support (including any amount assessed for private school fees) as may be assessed from time to time by the child support agency or ordered by the Court, conditional upon him only using that amount to meet his assessed or ordered obligation to pay child support.

8. In the event that a party seeks an order that the other party pay the costs of and incidental to the Application in a Case sealed 3 April 2018:

   (a)the party seeking an order for costs shall, within fourteen (14) days of today, file and serve brief written submissions in support of such application for costs; and

   (b)the party from whom costs are sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (c)the party seeking costs shall, within seven (7) days of its service, file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought,

   and any such application for costs shall thereafter be determined in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pirelli & Pirelli and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 778 of 2017

Ms Pirelli

Applicant

And

Mr Pirelli

First Respondent

And

Pirelli Pty Ltd as Trustee for The Pirelli Trust

Second Respondent

REASONS FOR JUDGMENT

Brief overview

1. The Applicant was born in 1977, is 40 years of age and is currently engaged primarily in home duties.  The Respondent was born in 1974, is 43 years of age and is the director of a privately owned company.  The parties commenced living together in 2006, married in 2008 and separated finally on 10 April 2017.  They have one child together: eight-year-old X (‘the child’), who was born in 2010.  The child is currently in Grade 2 at The J School (‘JS’), where he has attended since 2014.

2. The Applicant commenced proceedings on 25 January 2017.

3. Parenting orders were made by consent on 9 November 2017. These orders provide, in summary, that the parents have equal shared parental responsibility for the child; that the child live with his mother and spend time with his father each alternate weekend from Friday after school until Monday before school during the school Term and each alternate week from Thursday to Tuesday during school holidays.  In addition, the child spends time with each of his parents on certain particularised special occasions and has the opportunity to communicate with his father by telephone each Tuesday and Thursday afternoon.

4. For child support assessment purposes, the child now spends 20 per cent of time each fortnight during the school Term with his father: that is, the Respondent has a 20 per cent percentage of care for the purposes of the Child Support (Assessment) Act1989 (Cth).

5. The November 2017 consent Order also provides that, unless otherwise agreed, the child attend JS.

6. Despite this, the Applicant’s evidence is that, on 18 December 2017, the Respondent instructed his Counsel to advise the Court during the interim hearing that day that he did not want the child to continue to attend JS: it was advanced on his behalf that he could no longer afford the fees and costs associated with his son’s attendance there.

Interim nature of proceedings

1. The hearing before me proceeded on the papers.  There was no application made by either party for leave to cross-examine the other party.  The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between the parties; assertions in respect of which contest is taken may well need to be the subject of cross-examination and, perhaps, expert evidence before definitive findings about the same can be made.

2. The reality means that the current interim Application for departure from the existing child support assessment falls to be considered and determined in the context of some disputed issues and an inability to resolve at least some of the same via the mechanism of cross-examination: consequently, orders – if made – are arrived at on the basis of matters which are either agreed or which cannot seriously be seen to be the subject of challenge, at least for the purposes of this interim hearing.

3. Any findings expressed in the course of disposing of the current Application must be seen in this context.  Matters outlined here may, ultimately, be shown at a further hearing or trial to be different.

4. The obvious limitations inherent in such proceedings do not relieve the party seeking relief from the obligation of establishing the necessary prerequisites for the grant of relief sought. The Applicant, therefore, must still prove, to the requisite standard, those matters fundamental to the successful prosecution of her claims.

Orders sought by the parties

1. The orders sought by the Applicant are as contained in her Application in a Case e-filed on 23 March 2018 and sealed on 3 April 2018. In essence, she seeks interim relief pursuant to ss 117, 118, 124 and 125 of the Child Support (Assessment) Act 1989 (Cth) (‘the CSAA’).[1]

   [1] This relief is also sought by her by way of final order, as a consequence of the Amended Initiating Application filed 21 March 2018.

2. That is, the Applicant seeks to depart, on an interim basis, from the administrative assessment of child support payable by the Respondent (as assessed in accordance with the administrative assessment carried out by the relevant Agency within the Department of Human Services) such that, in addition to the administratively assessed child support, the Respondent pay:

   a)the fees levied by JS (inclusive of tuition fees and fees for resources, camps and excursions) or such other school at which the parents agree the child attend; and

   b)by way of non-periodic child support:

   i)all school costs (defined to mean: extra-curricular activities as agreed between the parties; school uniforms and shoes; school books, excursions exclusive of interstate or international travel; private tutoring fees; school-related equipment and events) not otherwise the subject of any orders herein and incurred as a consequence of the child’s enrolment at JS; and

   ii)private health fund insurance premiums for the child at the level to which he is currently insured (or was insured as at 5 May 2017); and

   iii)an amount equal to all gap payments for medical, hospital, optical, dental, orthodontic, physiotherapy and “other similar expenses” in relation to the child which are not covered by the private health fund rebate.

3. The Applicant also seeks an order pursuant to s 125 of the CSAA to the effect that the annual rate of child support payable by the Respondent under any relevant administrative assessment determined in accordance with the CSAA is not to be reduced by the amounts payable pursuant to any order made by the Court.

4. As outlined in the Response filed 10 May 2018, the Respondent seeks the following orders:

   a)the Applicant’s Application in a Case filed 3 April 2018 be adjourned to such time as the latest administrative assessment is determined; and

   b)the $100,000.00 provided to the Applicant’s solicitors pursuant to Clause 5(e) of Orders made by Forrest J on 22 December 2017 is not to be used to pay for the legal fees and costs incurred by the Applicant in respect of the current interim Application.

Extant orders

1. On 22 December 2017, Forrest J made a number of interim Orders.  Relevantly, his Honour amended paragraph 2.8 of the Orders made by Judge Turner of the Federal Circuit Court on 5 May 2017 such that the relevant operative aspects of that Order are now as follows:

   2.That except in so far as it is necessary for the respondent to do so consistent with his duties as a director or trustee and then only to that extent without prior written consent of the applicant or further order of this court, the respondent will not take any steps, or cause or direct any such steps be taken, towards:

   2.5 drawing money or causing the drawing of money from any bank account or loan account facility held or operated by them or any of the relevant entities incurring any liabilities other than:

   2.6in the ordinary course of the ordinary business of the person, company or trust;

   2.7      in compliance with obligations pursuant to these orders;

   2.8 otherwise up to an amount of $700.00 per week plus an amount for accommodation costs of the respondent of up to $750.00 per week plus such further amount as will enable him to pay any child support (including any amount assessed for private school fees) as may be assessed from time to time by the Child Support Agency, conditional upon him only using that amount to meet his assessed obligation to pay child support.

2. Forrest J also discharged paragraph 5.7 of the 5 May 2017 interim Order which had provided that the Respondent cause payment of school and co-curricular fees for the child, capped at an amount equivalent to $400.00 per week.

3. Whilst his Honour did not discharge paragraph 5.8 of the 5 May 2017 interim Order (which provides that the Respondent shall cause payment of health insurance policy costs for the Applicant, the Respondent and the child as and when due), Counsel for the Applicant submitted that the Applicant sought an order for the payment of health insurance premium costs for the child out of concern that (as was the subject of discussion before Forrest J, albeit it in respect of other aspects of the May 2017 Order) such order may not be enforceable given the terms of s 66E of the Family Law Act 1975 (Cth).

The Applicant’s case and evidence

1. The Applicant, who has recently started casual work in a management role, had not previously worked for remuneration outside the home for more than about ten years.  Her evidence is that this situation arose as a consequence of an agreement between herself and the Respondent that she not work outside the home, but, rather, take care of the child and keep the home.

2. She said that, at present,[2] she is yet to be paid for her work in her new role because she is helping her friend (who owns the business) on a “free of charge” basis in order to gain further experience. She said she advised the Agency on 1 April 2018 that she is not in paid employment but is undertaking work experience for friends because they had financially assisted her when the Respondent stopped paying her spousal maintenance.[3]

   [2] As at 15 March 2018.

   [3] Affidavit of the Applicant filed 10 May 2018 at [40(e)].

3. The Applicant’s evidence is that, since June 2017, the Respondent has paid child support to her via an “agency assessment”: he is currently paying child support in an amount of $286.98 per week (being $1,243.58 per month or $14,923.00 annually). Her current Notice of Assessment, dated 12 March 2018, is in evidence before me.[4]

   [4] Affidavit of the Applicant filed 23 March 2018, Annexure “SP-02”.

4. The Applicant says that, after the December 2017 hearing before Forrest J, the Respondent continued to assert that he does not accept he should pay the child’s school fees. His position, as I understand it, is that determination of the responsibility for the same should await the Child Support Authority’s determination of the Applicant’s Application to that Agency about the same and with appropriate consideration of his response to the same.

5. The Applicant’s case is that the Respondent has not made any contribution to the child’s school fees this year; rather, he continues to insist that she pay the same – and other associated costs relating to the child in respect of which she seeks interim relief in the current Application – from the child support payments of $286.98 per week he makes pursuant to the current assessment. I did not understand the Respondent to challenge the accuracy of this assertion in any particular way.

6. The Applicant submits that the cost of JS school fees would equate to approximately $264.50 per week.

7. The Applicant said that, when she spoke with the relevant school staff on 20 February 2018, she was told that the child would lose his place at the school and be unable to return for the second school Term if the fees for Term 1 were not paid before the second Term started.  Consequently, so that the child could continue to attend the school this year, she used some of the funds she received as a consequence of the Orders made by Forrest J (which provided for the payment to her of lump sum spousal maintenance and the lump sum payment of spousal maintenance arrears) to pay the school fees for Term 1. 

8. The lump sum spousal maintenance was one of the matters the subject of the Orders made by Forrest J in December 2017; this followed after the Respondent failed to pay the Applicant the periodic spousal maintenance he was ordered, by the May 2017 Order, to pay to her.

9. The evidence establishes the Applicant paid the Term 1 school fees, in the amount of $3,438.00, on 17 April 2018.  Her solicitors advised the Respondent that day that she had made this payment for the child’s benefit and to ensure he was not adversely affected by the ongoing dispute between the parties. The Respondent was also advised that the Applicant’s payment of the Term 1 fees should not be misconstrued as being a concession that she had the capacity to meet the school fees on an on-going basis: he was told she had used some of the funds she received by way of lump sum spousal maintenance to meet this cost.  

1. The Term 2 fees are now due. Payment of the same was required on or before 23 April 2018.  

2. The Applicant is very concerned that, if the fees are not paid before the next Term starts on 16 July 2018, the child will lose his position at JS. She is also very concerned that, if this occurs, it will be difficult to enrol him in another private school at this time of the school year.

3. The Applicant advances that, despite her desire to contribute to meeting the costs of the child’s ongoing attendance at JS, she is simply unable to afford to do so. She alleges that, in contrast to her financial position, the Respondent has the capacity to pay the child’s JS school fees (or, at least, meet the fees for an equivalent private school) and that the child support she receives pursuant to the assessment ($286.98 per week) should be used by her to meet the child’s day-to-day living costs.  She also advances that the Respondent should be ordered to pay those school related expenses she particularises in her Application in a Case because, as the child’s parents, the parties previously agreed that the child attend JS and that, as recently as earlier this year, the Respondent confirmed that the child should attend at that school for at least the remainder of the 2018 school year.

The Respondent’s case and evidence

1. The Respondent is the director of Pirelli Pty Ltd. There are three discretionary trusts in respect of which this entity is the trustee: the Pirelli Trust (‘Pirelli’), the Second Respondent in the substantive proceedings, a family trust and a property trust.  It appears he may be the only shareholder of this entity. He is also a co-director and, via Pirelli Pty Ltd ATF the Pirelli Trust, the 65 per cent shareholder in K Pty Ltd (‘KPL’).

2. Despite having advanced, at the interim hearing in mid-December 2017, that he did not want the child to continue to attend JS, the Respondent corresponded with the Applicant and her solicitors about this issue in early January 2018 as follows:

   a)he said, in an email to Ramsden Lawyers on 2 January 2018:[5]

   With [the child] being more settled and the school year upon us, I agree it is too much for [the child] to be moved from school at this late stage in the process for 2018. I therefore withdraw my offer for [the child] to not attend [J School] and feel it is in his best interests to remain there for 2018 at least. His parents can reassess at a later date if required, and note both must agree for him to be taken out of [J School].

   b)he said, in a message to the Applicant on 5 January 2018:[6]

   I have informed Ramsdens I don’t want [the child] to come out of [JS] this year – it is too late and he is just finally getting more settled and calmer after 2 weeks away with me. I don’t think we should upset his schooling at this point. So my offer to pull him out of [JS] is withdrawn.

   [5] Affidavit of the Applicant filed 23 March 2018, Annexure “SP-16”.

   [6] Affidavit of the Applicant filed 23 March 2018, Annexure “SP-17”.

3. Despite this clearly stated intention that the child continue to attend JS this year, the Respondent advanced that he has no resources available to him to pay for the child’s current and future private school fees there.

4. The Respondent said his gross earnings are $11,700.00 per month ($9,700.00 by way of a drawing from KPL and $2,000.00 in rent from a unit in Suburb N). His monthly expenses include home loan repayments, rates, water and Body Corporate fees for the Suburb N unit, car repayments and vehicle insurance and registration totalling $4,860.00. He said that the remaining $6,840.00 is expended in paying for his personal costs including child support, private health insurance (for the parties and the child), his mobile phone plan, the Applicant’s life insurance policy, his rent and his living expenses and that he is in a nett loss position in an amount of $1,033.00 per month.

5. The Respondent also said, in essence, that he cannot access any additional funds from his company as its bank accounts hold only nominal balances.  He advanced that, if he did cause the company to meet the child’s school fees and associated costs, he would breach Clause 2.6[7] of the 5 May 2017 Order which prevents the drawing of money other than in the ordinary course of business. However, the operative Order specifically permits the Respondent to draw upon the company to meet his personal expenses “up to an amount of $700.00 per week plus an amount for accommodation costs of the Respondent of up to $750.00 per week plus such further amount as will enable him to pay any child support (including any amount assessed for private school fees) as may be assessed from time to time by the child support agency”.[8]

   [7] Whilst the Respondent references he would be in breach of Clause 2.7, the relevant provision appears at Clause 2.6 of the Orders made on 5 May 2017.

   [8] Clause 2.8.

6. In the event that I am persuaded of those matters which the Applicant must establish for her Application to succeed, the existing Orders can easily be the subject of further amendment or variation in order to make it clear that the Respondent will not be in breach of the same if he draws funds in order to discharge his Court ordered child support liabilities.

The KPL shareholder’s agreement

1. The Respondent also advanced that he is precluded from drawing further money from K Pty Ltd by way of irregular dividend to Pirelli Pty Ltd because of the KPL Shareholder’s Agreement which requires a 75 per cent resolution to be passed for the drawing of such dividend.

2. Schedule 5 of the Shareholder’s Agreement[9] outlines that the dividend policy of the company is that 30 per cent of any dividend declared by the Board to be paid to all shareholders is to be retained by the company at the discretion of the Board by Super Majority Vote. Further, according to the written terms of the Shareholder’s Agreement, the following decisions can only be made by a Super Majority Vote of the Board:

   a)Clause 8.3(m): any decision and or change to the dividend and distribution policy of the Company set out in Schedule 5; and

   b)Clause 8.3(n): any decision and or change to the remuneration policy set out in Schedule 5.

   [9] Affidavit of the Respondent filed 10 May 2018, Annexure “WMP8”.

3. In the case of a resolution of the board, a Super Majority Vote means a vote or resolution passed by directors who together represent shareholders holding more than 75 per cent of the shares.

4. The Shareholder’s Agreement states that the Respondent holds a 65 per cent share in the company, is the company’s chief executive officer and receives remuneration of $200,000.00 per annum (including superannuation).  Mr G, the company’s managing director holds the remaining 35 per cent share.

5. The Respondent has not provided any evidence of the minority shareholder’s position regarding enlivening Clauses 8.3(m) and 8.3(n) of the Shareholder’s Agreement. I do not have evidence before me about those resolutions which affected a change to the Respondent’s income.

6. What I do have, though, is evidence of the Respondent’s capacity to access and spend using company facilities.

The Respondent’s capacity

1. The Applicant’s evidence is that, during the relationship, KPL paid dividends to Pirelli Pty Ltd: these funds are available to the Respondent. The payments were made sporadically throughout the year and ranged from $30,000.00 to $50,000.00 quarterly.  In addition, various other costs were paid.  The Respondent accepted that dividend payments were made during the relationship. However, he advanced that, at present, KPL has significant debts that urgently need to be reduced so as to ensure it remains within the parameters of its bank’s lending covenants.

2. The picture the Respondent attempted to advance was certainly one of an entity which is currently required to keep a careful watch over discretionary expenses (whether in an amount and of a nature previously made in the “usual course of business” or not). However, credit card statement summaries for the KPL credit card facility showed expenditure of $70,931.50 over a period of approximately six months (October 2017 – March 2018).

3. It appears that the Respondent has access to a NAB credit card facility in the name of K Pty Ltd (company account no. ending …06) and his own account (account no. ending in …54).[10] There is no available credit on the Respondent’s personal NAB credit card (account no. ending in …74) as of 23 March 2018.[11] However, the Applicant advances that the Respondent’s company credit card is connected to KPL’s credit card account, which has a credit limit of $50,000.00.

   [10] Affidavit of Ms M filed 10 May 2018 at [7(a)]. 

   [11] Exhibit 3.

4. After documents were obtained via subpoena, the Applicant’s solicitor reviewed the Respondent’s spending on the company credit card during the period 31 November 2017 to 28 March 2018. Over this period of approximately four months, the Respondent caused a total of $44,210.26 to be spent on the company credit card.[12] Over this four month period, $13,195.00 was spent at adult entertainment, $9,755.26 was spent at restaurants and bars, $7,231.70 was spent on personal travel spending (including limousines, Ubers, taxis, airfares) and $5,243.30 was spent on general shopping at stores like Kmart, Target, David Jones and Big W.  Additional spending via the company credit card also included the costs of car washing, dry cleaning, Foxtel, coffees, meals and petrol.

   [12] Affidavit of Ms M filed 10 May 2018 at [22].

5. Having regard to the above, it was contended on behalf of the Applicant that the KPL credit card is a source of funds available to the Respondent: that is, he uses that company credit card for personal expenditure and, consequently, it provides him with the capacity to meet the child’s JS tuition fees.

6. In contrast, the Respondent advanced that the expenses recorded on the credit card were incurred in the ordinary course of business.  At the hearing, he also submitted that the costs incurred via the credit cards were not being paid off and that he was experiencing credit default. However, noting that the credit card statements of the company account in the Respondent’s name for the period 29 September 2017 to 28 March 2018 are in evidence before me,[13] it seemed to me that, for the period from October 2017 to January 2018, the amount paid off each month exceeded that month’s spending.[14]  

   [13] Exhibit 4.

   [14] For example, in October 2017, the total spent was about $18,925.03 whilst the total repaid was $19,302.03; in November 2017, the total spent was about $18,548.98 whilst the total repaid was $20,192.98; in December 2017, the total spent was about $16,904.54 whilst the total repaid was $25,100.54 and in January 2018, the total spent was about $8,708.78 whist the total repaid was $9,572.78.

7. Whilst the Respondent also advanced that he did not control the way KPL funds can be used, that they are not available to be used for private purposes (such as school fees) and that he needed the agreement and consent of the other shareholder (given the requirement under the Shareholder’s Agreement for a 75 per cent resolution), such issues do not seem to me, on a prima facie basis, to have prevented him previously using the company credit card to meet at least some personal expenses.

The legislative framework/ applicable principles

1. The principal Object of the CSAA is to ensure that the child receives a proper level of financial support from his parents.[15] Further Objects of Division 4 of Part 7 include ensuring that the child has his proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of his parents and that his parents share equitably in his support.[16]

   [15]Child Support (Assessment) Act 1989 (Cth), s 4(1).

   [16]Child Support (Assessment) Act 1989 (Cth), s 114.

2. It is with these Objects in mind that the current interim Application must be considered.

3. The Court’s power to make orders of the kind sought by the Applicant only arises if the Applicant establishes those matters prescribed in s 116 of the CSAA.[17]

   [17]Babbit & Babbit (2011) 46 Fam LR 77 at [134]; Saberton & Saberton [2013] FamCAFC 89.

4. That section is in the following terms:  

   116Application for order under Division

   (1)  A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:

   (b)  both of the following apply:

   (i)  the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

   (ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case …

5. The Applicant is a ‘carer entitled to child support’. As both parties are (obviously) parties to an application pending in a Court having jurisdiction under the Act, the requirement imposed by s 116(1)(b)(i) of the CSAA is satisfied.

6. Counsel for the Applicant submitted that the Court would be persuaded that, in the special circumstances of this case, it is in the interests of the Applicant and the Respondent for the Court to consider whether an order departing from the administrative assessment and for non-periodic child support for the child, as sought by the Applicant, is an order which should be made in the special circumstances of the case.

The Application to the Agency

1. The Applicant said that, in January 2018, she applied to the Agency[18] to amend the current administrative assessment to take the child’s private school fees into account: unfortunately, the outcome of this assessment is still pending.

   [18] Affidavit of the Applicant filed 10 May 2018, Annexure “SP-08”.

2. The Respondent submits that, given this, the hearing of the Applicant’s Application in a Case should be adjourned to await this determination. The Applicant opposes this course and, in doing so, relies (in part at least) on a communication she received from the Respondent on 19 February 2018.  In this communication, the Respondent advised her that he intended to appoint a third-party consultant to defend her Application to the Agency to amend the current assessment.

3. Her case is that, given the attitude conveyed by this information, it is clear the Respondent will take any opportunity to continue to bring applications for reassessment of the administrative assessment and is likely to otherwise attempt to reduce the financial assistance he provides to the child (and to her) at any juncture. Her conclusion in this respect seems supported by the Respondent’s position that he hopes the reassessment will reduce the amount of child support he is required to pay to support the child as he (the Respondent) is struggling financially.

4. The Application to the Agency for a change to the assessment was made pursuant to Reason 3 (namely, that there are extra costs in caring for, education or training the child in the way both parents intended) and Reason 8 (namely, that the assessment does not correctly reflect one or both parent’s income, property and/or financial resources and does not correctly reflect one or both parent’s earning capacity).

5. After the Agency was served with the Application, the Applicant says she was advised orally that it would reserve its decision about her Application until the Court had the opportunity to decide the current Application for orders departing from the administrative assessment. Her evidence is that, despite seeking it, she has not received any written confirmation from the Agency to confirm that this is its position.

6. Notwithstanding the absence of resolution of the Applicant’s Application to the Agency for a change to the current administrative assessment, I accept the submissions made by Counsel for the Applicant in support of the contention that I would be satisfied that she has established that it is in the interests of the Applicant and the Respondent that I consider whether an order should be made under the Division in relation to the child in the special circumstances of this case.

7. I have reached this satisfaction on the basis of my acceptance of the proposition that, absent such consideration being given, on an interim basis, to the Application for departure from the administrative assessment, it is much more likely than not that the parties will continue to be involved in ongoing proceedings before the Agency,[19] with the consequence that it is highly likely that further time and money will be diverted to such engagement.  I consider that it is in the interests of both the Applicant and the Respondent that the risk of such an occurrence is obviated by a consideration of the current Application now.

   [19] The Applicant having commenced proceedings seeking a departure from the current administrative assessment in January this year, which remain undetermined, but the subject of contention by the Respondent.

8. Consequently, I am persuaded that the Applicant has established the requirements imposed by s 116(1)(b)(ii) of the CSAA.

9. It follows that I am persuaded to determine the Applicant’s Application for departure orders.

How is a departure application determined?

1. In Gyselman and Gyselman[20] the Full Court described the procedure contained in Division 4 of the CSAA by which the Court may make an order which “departs” from the administrative assessment.

   [20]Gyselman & Gyselman (1992) FLC 92-279.

2. The “three step process” prescribed by s 117(1)(b) of the CSAA may be summarised as follows:

   a)has an Applicant established one or more of the grounds of departure prescribed by s 117(2)?; – if so

   b)is it “just and equitable” within the meaning of s 117(4) to make a particular order?; and

   c)is it “otherwise proper”[21] within the meaning of s 117(5) to make a particular order?

   [21] Within the meaning of the legislation.

3. It is clear that each of these separate issues must be satisfied.

4. Insofar as those aspects of the current interim Application which seek an order for the payment of child support otherwise than in the form of periodic amounts are concerned, it is clear that s 124 of the CSAA provides that the Court may order the payment of such child support if it is satisfied that it is “just and equitable” and “otherwise proper” within the meaning of s 117(4) and s 117(5) respectively to make a particular order. Further, if an order is made pursuant to s 124, the Court must also state whether the annual rate of child support payable by the Respondent under any relevant administrative assessment is to be reduced by virtue of that determination or not.[22]  As already noted, the Applicant seeks an order to the effect that there should be no reduction in the annual rate of child support payable in accordance with an administrative assessment by virtue of any non-periodic child support the Respondent is ordered to pay.

   [22]Child Support (Assessment) Act 1989 (Cth), s 125.

Has the Applicant established a ground for departure?

1. As already noted, the first step in deciding whether to make a departure order is to determine whether, in the special circumstances of the case[23] one or more of the grounds for a departure order, as outlined in s 117(2) of the CSAA, are made out.[24]

   [23]Child Support (Assessment) Act 1989 (Cth), s 117(1)(a).

   [24]Child Support (Assessment) Act 1989 (Cth), s 117(1)(b)(i).

2. Each ground of departure is prefaced by the requirement “in the special circumstances of the case”. The meaning of the phrase “in the special circumstances of the case” was discussed by the Full Court in Gyselman and Gyselman:[25]

   Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds 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 emphasize 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. In Savery’s case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p. 77,202 in a different context, said 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.

   [25]Gyselman & Gyselman (1992) FLC 92-279, 79,065.

1. The ground for departure most applicable to the circumstances of this case is that provided in s 117(2)(b)(ii), which provides as follows:

   (2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:

   (b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

   (ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents

2. The child has attended JS since 2014. The parties signed his Application for admission to the school in February of that year.  Consequently, the child is in his fifth year at JS.

3. I accept as more likely than not, given what I understand to be the uncontentious evidence from the Applicant that she did not work for remuneration outside the home after no later than the child’s birth, that, during the cohabitation, the Respondent was responsible for ensuring that the child’s school fees were paid.

4. I note the Applicant said there was an expectation that the child would attend JS. She said the Respondent would make comments like he wanted to send the child to a private school because he had attended a private school. She said the Respondent would make derogatory remarks about people they knew who sent their children to public schools; said that he did not want to send the child to a public school due to the “demographic” and also said he wanted the child to attend JS because it was “prestigious” and his colleagues had sons who attended there.  The interim nature of the hearing means that I am unable to reach concluded views about these aspects of the Applicant’s evidence.

5. What is clear, though, is that the May 2017 Orders specifically references payment of the child’s school and co-curricular fees, the November 2017 parenting orders (made by consent) positively provides that the child shall attend school at JS and the Respondent has continued to persist with the view that this should be the case, as evidenced in his email and other communications (as outlined in paragraph 31 above).[26]

   [26] Albeit that, on 19 December 2017, he sent correspondence to the Applicant through the ‘Our Family Wizard’ application advising her that the child would not be attending JS in 2018, requesting she make a proposal for a state school and asserting he would communicate to JS in the following week to advise that he would not be signing up for the child’s enrolment next year due to financial circumstances.

6. I also note that the Respondent has expressed on multiple occasions[27] that the child’s school fees are to be paid out of the child support payments he makes to the Applicant (in the sum of $286.98 per week): in making such assertions, he is not contending that the child not attend at the school but, rather, is simply asserting his view as to the manner in which his ongoing attendance there is funded.

   [27] Affidavit of the Applicant filed 23 March 2018 at [62].

7. These matters, when taken together, persuade me that, in attending and continuing to attend JS (at least for the remainder of this school year), the child is being educated in a manner that was expected by his parents.

8. The evidence establishes that the yearly cost of the child attending JS in Grade 2 is $13,752.00 (being fees of $3,438.00 per term, with a $171.90 discount applicable per Term if the fees are paid by the due date). This equates to about $264.46 per week. The total amount of school fees outstanding for the 2018 school year is $10,314.00.

9. If an order is made as contended for by the Applicant in the Application in a Case sealed 3 April 2018, the amount paid on a monthly basis by the Respondent will be one third of each Term’s school fees, equating to a full Term paid over a three-monthly period, and a year’s tuition paid over the 12 months.  As I calculate it, the amount paid on a monthly basis will be about $1,146.00 (or roughly $286.50 per week).

10. The quantum of the school fees are such that I am persuaded that, having regard to the total costs of maintaining the child and in the special circumstances of this case, the costs of maintaining him are significantly affected and that this is because, in attending and continuing to attend JS (at least for the remainder of this school year) he is being educated in a manner that was expected by his parents.

11. Consequently, I am persuaded that the Applicant has established a ground for departure.

Is it just and equitable within s 117(4) to make the proposed order?

1. In determining whether it is just and equitable as regards the child, the Applicant and the Respondent to make a particular order under the relevant Division, the Court must have regard to the matters outlined in s 117(4) of the CSAA.

   The nature of the duty of a parent to maintain a child

2. Section 3 of the CSAA provides that the child’s parents have the primary duty to maintain him. This duty has priority over all commitments of each parent, other than those necessary to enable that parent to support themselves; it is not affected by the duty of any other person to maintain the child.

   the child’s proper needs

3. In their Financial Statements, the parties have set out their average weekly expenses for the child.  In her Further Amended Financial Statement Three,[28] the Applicant sets out her average weekly expenses for the child as follows:

   [28]Filed 23 March 2018.

Item

Amount

Food

$150.00

Mobile telephone

$10.00

Clothing and shoes

$80.00

Children’s activities (holiday care)

$38.00

Child minding

$20.00

Medical, dental and optical

(not including health insurance premiums)

$10.00

Entertainment/hobbies

$50.00

Education expenses, including fees and levies

$255.00

Chemist/pharmaceutical

$20.00

Books and magazines

$5.00

Gifts

$15.00

Hairdressing, toiletries

$5.00

Other necessary commitments

(extra-curricular activities through school – JS)

$80.00

Total

$738.00

1. That is, her evidence is that, exclusive of education expenses and extra-curricular activities, the child’s needs whilst in her care require the expenditure of about $403.00 per week.  Given her receipt of $286.98 per week from the Respondent by way of child support, she is required to meet the remaining $116.00 per week from her own means.

2. In his Financial Statement,[29] the Respondent sets out his average weekly expenses for the child estimated to be as follows:

   [29] Filed 10 May 2018.

Item

Amount

Food

$80.00

Telephone

$50.00

Clothing and shoes

$40.00

Children’s activities

$40.00

Medical, dental and optical

(not including health insurance premiums)

$10.00

Entertainment/hobbies

$40.00

Holidays

$40.00

Education expenses, including fees and levies

$70.00

Chemist/pharmaceutical

$10.00

Books and magazines

$5.00

Gifts

$15.00

Hairdressing/ toiletries

$5.00

Other necessary commitments

(child support: $286.00/week, health insurance: $105.00/week)

$391.00

Total

$796.00

1. That is, his evidence is that, exclusive of child support payments and education expenses, the child’s needs whilst in his care require expenditure of about $440.00 per week.  However, this amount includes the entirety of the cost of the health insurance premium.

2. On the basis of each parent’s evidence about the child’s proper needs whilst in their respective care, it appears that, exclusive of the costs associated with education and extra-curricular activities (but inclusive of the costs associated with maintaining private health insurance), these amount to about $843.00 per week.  When the costs of education and extra-curricular activities are added, the total amount needed to meet the child’s proper needs as quantified by his parents is $1,248.00 per week. As a percentage, the education expenses represent about 26 per cent of the total cost and the extra-curricular expenses represent about 6.4 per cent of the same.

3. The parenting consent orders provide that the child spends time with the Respondent during the school Term, each alternate weekend from Friday after school until Monday before school (being three nights per fortnight), and during school holidays, each alternate week from Thursday to Tuesday (being five nights per fortnight).  

The income, property and financial resources of each parent who is a party to the proceeding

1. The Applicant’s evidence is that she receives “income” of $363.00/week (being Family Tax Benefit of $77.00 and child support payments from the Respondent of $286.98).  She has no other income.  

2. The Applicant received lump sum spousal maintenance of $53,820.00 in or around 10 January 2018.  This amount represents the quantification of her need for financial support until January 2019 (that is: it represents 52 weekly payments of $500.00 for reasonable expenses and $500.00 for her rental expenses). She also received $9,140.00 in discharge of arrears of spousal maintenance.  As of May 2018, she had $35,130.60 remaining.[30] I accept her evidence to the effect that these funds are needed for her own support and to meet accommodation costs for herself and the child, particularly as she does not have an income (other than the Family Tax Benefit and child support payments) and has not worked in paid employment for ten years.

   [30] Affidavit of the Applicant filed 10 May 2018 at [59].

3. Whilst the Respondent challenges the Applicant’s evidence that she has no ongoing income from paid employment to financially support herself or the child, there is no independent evidence to corroborate this challenge; in the circumstances and for the purpose of the disposition of this interim Application, I accept the Applicant’s evidence about her lack of income; I also note that she has told the Agency the same: namely, to the effect that she is not in paid employment and does data entry a few hours per week to repay friends who loaned her money after the parental separation.  I also accept that the Applicant has updated her LinkedIn profile for networking purposes.

4. The Respondent’s case is that he has no resources available to him to pay for the child’s current and future private school fees at that school. His evidence is that his gross earnings are $11,700.00 per month ($9,700.00 by way of a drawing from KPL and $2,000.00 in rent from a unit in Suburb N). His monthly expenses include home loan repayments, rates, water and Body Corporate fees for the Suburb N unit, car repayments and vehicle insurance and registration totalling to $4,860.00.  Of the remaining $6,840.00, the Respondent said that, after meeting his personal costs including child support, private health insurance (for the parties and the child), his mobile phone plan, the Applicant’s life insurance policy, his rent and his living expenses, he is in a nett loss position in an amount of $1,033.00 per month. 

5. The Respondent said he is precluded from drawing further money from KPL by way of irregular dividend to Pirelli due to KPL’s Shareholder’s Agreement which requires a 75 per cent resolution to be passed for the drawing of a dividend. However, he has not provided any evidence of the minority shareholder’s position regarding enlivening Clauses 8.3(m) and 8.3(n) of the Shareholder’s Agreement which would permit a change to the dividend distribution policy or remuneration policy. Further, as recorded elsewhere in these Reasons, reference to the company credit card provided for his use certainly suggest to me that he is able to use that as a source to meet personal expenditure; it also appears to me that the monthly indebtedness incurred on that credit card is discharged monthly.

The earning capacity of each parent who is party to the proceedings

1. I accept as more likely than not on the evidence before me that the Respondent has the superior earning capacity of the parties:  he was the primary income earner during the relationship; the family unit which then comprised the Applicant, the Respondent and the child was supported via the receipt of funds from his endeavours. He remains as director of Pirelli and co-director and 65 per cent shareholder of KPL.

2. In contrast, it certainly appears that the Applicant was the child’s primary caregiver during the relationship. She has continued to fulfil that role and, by virtue of the terms of the existing parenting order, will continue to do so.  I accept for the purpose of this Application that she has not worked in paid employment for more than about ten years. Given the length of time over which this arrangement existed, it certainly seems more likely than not, at least on a prima facie basis, that this occurred with the Respondent’s agreement – or, at least, acquiescence.

3. I also accept the Applicant’s evidence to the effect that she is scheduled to have foot surgery on 11 June 2018 and that, after this, will need to avoid standing or walking for approximately four weeks: this will obviously impact negatively on her capacity to engage in paid employment during this time.

4. Whilst I note that the Applicant said she intends to undertake a course (at a cost of $14,000.00 to $21,000.00), I am unable at this time to determine whether this is a realistic proposition.  Whatever her future intentions, I accept that, at present, the Respondent’s financial situation is significantly superior to that of the Applicant.

The commitments of each parent necessary to enable the parent to support himself or herself or another person that the person has a duty to maintain

1. There is no evidence that either parent has a duty to maintain any person other than the child.

2. I have already noted the Applicant’s receipt of lump sum spousal maintenance and that she uses the same to meet her own financial needs.  I accept her evidence to the effect that she has more recently paid the child’s then outstanding school fees in the amount of $3,438.00. I note her evidence that she also repaid  $10,000.00 to friends who had loaned her money to meet costs associated with these proceedings and to help her meet her general living costs at a time when the Respondent had failed to pay her spousal maintenance.

3. As set out in her Financial Statement,[31] the Applicant’s average weekly expenses are $970.00.  In addition to these, she pays $535.00 per week rent (a proportion of which is obviously attributable to meeting the child’s need for accommodation) and $23.00 per week in water charges. It is clear that her asserted weekly needs (inclusive of accommodation) are greater than the provision made for her maintenance via the receipt of spousal maintenance.

   [31] Further Amended Financial Statement Three filed by the Applicant on 23 March 2018.

4. The Respondent advances that his average weekly expenses total approximately $1,186.00.  His rent of $750.00 constitutes a significant percentage of this total. In addition, he asserts that he is required to pay income tax of approximately $250.00 per week, meet the costs of life insurance (at $20.00 per week) and health insurance (at $105.00 per week and paid on behalf of the Applicant also) and pays $286.98 per week by way of child support payments to the Applicant.  Taken together, his asserted weekly expenses amount to about $1,848.00.

The direct and indirect costs incurred by the Applicant in providing care for the child

1. As contained in the table above, the Applicant’s average weekly expenses for the child amount to $738.00.  She currently receives $286.98 per week in child support payments and $77.00 per week in a Family Tax Benefit payment.  These payments are, obviously, insufficient to meet the child’s average weekly expenses. Consequently, it is also obvious that the Applicant contributes to the child’s needs by using funds that were specifically provided to her to meet her need for financial support (that is: she clearly uses her spousal maintenance funds – quantified to reflect the assessment of her need for financial support – to meet the child’s needs also).

Any hardship that would be caused to the child, the Applicant, the Respondent by the making of, or the refusal to make an order

1. Given the Respondent’s attitude to the child’s continued attendance at JS this year (as adverted to in paragraph 31 above), I accept that it is likely that the child will suffer hardship if he is unable to attend JS for at least the remainder of the current school year. I also accept generally – again, given the Respondent’s comments in January 2018 – that it is more likely than not that he may struggle starting at a new school at this time as he has already settled into the school year; I also accept as more likely than not that, given the breakdown of his parents’ relationship, school may well be one of the few “constants” for him at this time.[32]

   [32] Affidavit of the Applicant filed 23 March 2018 at [120].

2. It seems to me, therefore, that the child may well suffer hardship if the order sought by the Applicant that the Respondent pay his school fees is not made.

3. Whilst the Respondent’s position is that he has no resources available to him to pay for the child’s current and future private school fees, is in a nett loss position in an amount of $1,033.00 per month and cannot access any additional funds from his company as its bank accounts hold only nominal balances, I again note that there is no evidence before me about the minority shareholder’s position regarding enlivening the relevant clauses of the KPL Shareholder’s Agreement which would permit a change to the dividend distribution or remuneration policy.  Further, I again rely on the fact that reference to the credit card provided for the Respondent’s use seems to me to establish that that is a source from which he has previously met personal expenditure and that the indebtedness incurred on the same is discharged each month; I also accept, as was submitted by Counsel for the Applicant, that, whilst its existence was disclosed in his Financial Statement filed 10 May 2018,  the Respondent failed to disclose the existence of a personal credit card with a credit limit of about $12,000.00 in his Financial Statement filed 14 December 2017. Such failure persuades me to assess the Respondent’s assertions about his financial position with a certain level of scepticism, even on an interim basis.[33]

   [33]Weir & Weir (1993) FLC 92-338.

4. Having regard to the evidence before me, including the matters the subject of specific discussion above, I am persuaded that it is just and equitable to make the orders sought by the Applicant for the Respondent to pay the costs of the child’s school fees.  In particular, I have placed particular weight on the joint decision for the child to continue to attend JS (at least for the remainder of this school year), the disparity in the parent’s financial positions and access to income and financial resources and the hardship to the child if an order as sought is not made.

Is it ‘otherwise proper’ to make a departure order?

1. Section 117(5) of the CSAA provides that in determining whether it would be otherwise proper to make a particular order under this Division, the Court must have regard to:

   (a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

   (b)the effect that the making of the order would have on:

   (i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

   (ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

2. The Applicant is in receipt of child support payments from the Respondent and a Family Tax Benefit.  There is no evidence before the Court that the Applicant is in receipt of any other income tested pension, allowance or benefit.  If the order sought by the Applicant is made, it does not appear that the rate or any income tested pension, allowance or benefit received by her would be affected.

1. On the evidence before me and for the reasons already expressed, I am satisfied that it is otherwise proper for an order to be made departing from the administrative assessment of child support payable by the Respondent to the Applicant for the child such that the Respondent shall be required to also meet the costs of the child’s school fees for his attendance at JS.

Payment in a form other than periodic payment[34]

[34]Child Support (Assessment) Act 1989 (Cth), s 124.

1. The Applicant also seeks that the Respondent pay, by way of non-periodic child support, all school costs (defined as extra-curricular activities as agreed between the parties, school uniforms, sports uniforms, school books, excursions (exclusive of interstate or international travel), private tutoring fees and school related equipment and events) incurred as a consequence of the child’s attendance at JS. She also seeks that he continue to pay private health fund insurance premiums for the child at the level to which he is currently insured and also meet  all gap payments (being those amounts not covered by the private health fund rebate) in relation to the child.

2. I note that the Respondent did not appear to challenge the Applicant’s assertion that, for the past four years, the child has done all of his sports and after school extra-curricular activities through JS.  I also note that, in her Further Amended Financial Statement Three, the Applicant advances that the child’s average weekly expense, regarding extra-curricular activities through JS, is $80.00.

3. I also note that the Respondent said he had offered to pay for the child’s tennis lessons, meet half of the cost of his music lessons and pay for the child to attend a school sports camp if the child wished to attend. 

4. Save for the above, there is no other specific evidence from either party about the quantum of the child’s school costs which exclude the tuition fees. Further, there is no additional evidence from either party about the likely quantum of any gap payments which may result from the child’s attendance on medical or other practitioners whose services are covered by the existing health insurance policy.

5. I note that the Respondent’s evidence in his Financial Statement is that he currently pays an estimated $105.00 per week in health insurance;[35] in his affidavit, he said he pays $450.00 by way of meeting the private health insurance premiums for both parties and the child.[36]  Whilst there is nothing to suggest that he intends to cease making these payments, I accept the force of the submissions made by Counsel for the Applicant about the importance of ensuring that, if such a decision was made by the Respondent, enforcement proceedings would not be stymied.

   [35] Financial Statement of the Respondent filed 10 May 2018.

   [36] Affidavit of the Respondent filed 10 May 2018 at [25].

6. On the evidence before me and for reasons which include those expressed above, I am satisfied that it is just and equitable as regards the child, the Applicant and the Respondent and otherwise proper to make an order that the Respondent provide child support for the child otherwise than in the form of periodic amounts paid to the Applicant and that orders are made about this issue in the manner sought by the Applicant. In arriving at this decision, I record that I have had regard to the current administrative assessment, the fact of the departure order I have been persuaded to make and those other relevant matters as required by s 124(2) of the CSAA; to the extent that it is necessary that I do so, I record that I have taken those aspects already the subject of consideration in my determination of the departure application into account where the same are relevant to my determination of the application for provision of child support other than in the form of periodic amounts paid to the Applicant.

7. The Applicant also seeks an order pursuant to s 125 of the CSAA to the effect that the annual rate of child support payable by the Respondent under any relevant administrative assessment is not to be reduced by the child support ordered to be paid pursuant to s 124 of the CSAA.

8. Given the circumstances of this case and for reasons which include those outlined above, I am satisfied that in the special circumstances of this case it would be just and equitable as regards the child, the Applicant and the Respondent and otherwise proper that the annual rate of child support payable by the Respondent not be reduced by the child support I have ordered that he provide. Again, I record that, in arriving at this determination, I have taken into account those matters I am required to take into account by sections 125(5) and 125(6) of the CSAA and, where the same are relevant to my determination of this aspect of the Applicant’s interim Application, have taken into account those matters already the subject of consideration in my determination of the departure application.

9. For the reasons expressed above, I make orders in terms of those set out at the commencement of these Reasons.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 June 2018.

Associate:     

Date:              6 June 2018