Prantage and Prantage

[2013] FamCA 1134

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE [2013] FamCA 1134

FAMILY LAW – CHILD SUPPORT – stay of payments refused

APPLICANT: Mr Prantage

RESPONDENT: Ms Prantage

DEPUTY CHILD SUPPORT REGISTRAR

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11263 of 2008

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT DEPUTY CHILD SUPPORT REGISTRAR

SOLICITOR FOR THE DEPUTY CHILD SUPPORT REGISTRAR Ms Heffernan, Child Support Agency

COUNSEL FOR THE RESPONDENT In Person

Orders

IT IS ORDERED THAT

1.The husband’s Application in a Case filed 15 August 2013 and the wife’s Response thereto filed 28 August 2013 be and are hereby dismissed.

2.The reasons for decision this day be transcribed and when settled copies be made available to the parties including the Deputy Child Support Registrar.

AND IT IS NOTED that the dismissal of the orders sought by the wife in her response to an application in a case in relation to a discharge of paragraph 13 of the Order made by Justice Cronin on 24 December 2010 is not a determination on the merits and the wife is able to seek such relief or alternative relief subsequently.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11263 of 2008

Mr Prantage

Applicant

And

Deputy Child Support Registrar

Respondent

And

Ms Prantage

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as an urgent application filed by the husband, Mr Prantage, on 15 August 2013 seeking an immediate stay of his liability to pay child support.  His application is curiously drawn.  It is conceded by him that paragraphs 1 and 3 of the orders sought ought be struck out.  That leaves the relief sought as open:

   I am seeking an immediate stay of orders (departure application) against payment of child support by myself as I have no moneys whatsoever to fulfil (sic) my obligations. 

2. And then 4:

   I am seeking that time be abridged to hear this matter as a matter of urgency.

3. Time has been abridged and that is why it is before me today.  The husband’s affidavit in support is sworn on 15 August 2013.  It is brief.  It is repetitive.  But the message is clear.  He says that he has no money and he can’t pay child support of $1,553.33 per month, which is what he was required to pay under a child support assessment, a copy of which is annexed to the affidavit, dated 4 May 2012.  And in respect of the period 1 May 2012 to 31 July 2013, it puts the weekly rate of child support as indicated at $357.23, the annual rate at $18,640 per annum. 

4. I note that the child support income amount for the husband is $78,056 and for the wife is $38,260.  It goes without saying that the assessment of which the husband has provided a copy in his affidavit is not the current assessment, that is, it is not the assessment in respect of which he presumably seeks a stay.  He says he has not received the current assessment which would operate from 1 August 2013 and into the future.

5. The wife appears in person today.  She has filed a notice of address for service which makes it clear that she represents herself and documents may be served on her specified address only in relation to child support proceedings, not for any other purpose.  She opposes the husband’s application.  She has an application of her own.  The facts are clear to me as to why she wants the relief sought, but what is not clear to me is what power I have to make the relief at this point. 

6. Ms Heffernan appears on behalf of the child support registrar.  She has informed the court that the current assessment of child support is for $1,652 per month but she does not have a copy of that document either.  She says that the husband’s current liability to the child support agency for arrears of child support and penalties is $15,555.82 of which the sum of about $600 represents penalties.  Ms Heffernan points to the fact that the husband has not brought documents to Court which substantiate his financial statement.  I note that there is specific provision in the Federal Circuit Court in relation to child support matters and that court’s rules very helpfully have logically set out documents which should be brought to Court on all occasions.  They include:

   a)A party’s taxation returns for the three most recent financial years.

   b)A party’s taxation assessment for those three most recent financial years.

   c)A party’s bank records for the period of three years ending on the date when the application was filed.

   d)If a party receives wage or salary payments, the party’s payslips for the past four pay periods. 

   e)If the party owns or controls a business, then documents relating to that business (but that does not appear to pertain to the husband in these proceedings).

   f)Any other document relevant to determining the income needs and financial resources of the parties.

7. It is a commonsensical list to corroborate matters to which the husband would be otherwise expected to depose.  On an earlier date, the husband has already told me that he receives a salary package of $120,000 per annum.  His financial statement sworn on 15 August 2013 puts his total average weekly income at $1,599, which equates to an annual income of $83,148, well short of $120,000 that he has said his salary package amounts to. Under total salary or wages before tax, the weekly amount is $1,584, which equates to $82,368 per annum. 

8. The husband says that he pays only $379 income tax per week.  This is likely to be referrable to some sort of salary sacrifice because that doesn’t appear to me to be an appropriate amount of taxation on an income of $120,000 per annum.  In relation to his superannuation, the husband deposes that he makes contributions of $240 per week.  He asserts from the bar table that his employer includes in the value of his salary package their employer contributions.  Had Mr Prantage brought to Court any payslips, that should have been evident from those documents, but he has not brought anything. 

9. The husband claims $537 per week rental for a three bedroom property.  He lives alone.  He says that the property at BW Street, Suburb VR is rented through Peter Markovic, however, he does not produce the lease. 

RECORDED  :  NOT TRANSCRIBED

1. He says that the lease is up on 1 February.  It seems a high amount of rent to accommodate one person.  Mr Prantage makes the point that he is seeking residence of his children and I know that to be the case because those proceedings are otherwise before me, but at the moment, he has something like two hours once a month with the children in a contact centre.

RECORDED  :  NOT TRANSCRIBED

1. He is not seeing the children and certainly not an overnight basis or in a situation where he is required to accommodate them.

RECORDED  :  NOT TRANSCRIBED

1. He pays home contents insurance of $17 per week but does not produce the policy.  He says that there is no component of building insurance in his policy number … with RACV.  He pays health insurance of $63 per week which he says is at the intermediate level and if he didn’t pay that, then he would attract a Medicare levy penalty of more than that.  The husband deposes to paying $440 per week by way of a personal loan to his parents but he does not produce any personal loan agreement or document. 

2. The husband has an NAB visa card which, it appears from item 51 of the financial statement, has a balance of $3,000.  Item 30 of the financial statement shows that the minimum payment is $85 per week, and yet the husband pays $690 per week, that is, he pays $605 more per week than the credit card provider requires him to pay but at the moment he is paying no child support whatsoever.  The husband says he pays the $690 a week in order to clear the credit card debt so he does not pay interest.  His economic prudence in that respect belies the fact that his children are receiving nothing by way of child support. 

3. Item 31 shows an actual payment made by the husband of $389 per week by way of child support.  It couldn’t be clearer that this item represents an actual payment because the words are in bold and capitalised immediately above the amount.  He is, in fact, paying nothing.  He hasn’t paid since last September. 

4. There are shares shown at item 38 which the husband values at $28,280.  They’re beneficially held.  They number 5,600 shares.  The husband informs me that there’s nothing which prevents him from selling the shares and using those moneys to pay child support.  It may be that he then does face a tax liability in relation to the shares, I don’t know, but they’re liquid assets and he can realise those. 

5. The husband deposes in his affidavit that the P property was sold.  It’s common ground that it was sold in 2012.  And he says:

   I did not receive “any” proceeds whatsoever.

6. As best I understand the situation, some $300,000 was paid out to the husband.

RECORDED  :  NOT TRANSCRIBED

1. $300,000 was paid out to the husband, or at his direction, on his application pursuant to an order by Young J.  The person who has not received any benefit, directly or indirectly, from the proceeds of sale of the home is the wife, who has complete care of the children.  At paragraph 9 of the husband’s affidavit, he deposes:

   9.Under the Natural Law of Justice, it deals with the role of a philosophy of natural law in our efforts to overcome the moral crisis of democracy.  I cannot be made homeless, effectively without a roof over my head in order to meet my CSA obligations where it is not physically and financially possible as my debts, not including my CSA payments, far outweigh my current income.

   10.I am applying for an IMMEDIATE STAY OF ORDERS against the Child Support Agency until such time as the financial/property matters in this case are settled by the court whereby I will then be able to fulfil my Child Support obligations.

   11.Without this Stay of Order, the Child Support Agency will issue recovery via my employer which will mean that my salary will be garnished and therefore I will not be able to afford the rent or the monthly repayments for my personal loan to my parents.  This will result in myself and my parents being quite literally left out in the street.

   12.The Child Support Agency have given me until the end of August to obtain and lodge with them this Stay of Order, otherwise they will instigate recovery proceedings with my employer which will definitely result in myself and my parents being left out in the street.

2. The husband’s failure to bring any documents to verify his financial situation to court is not the most serious defect in today’s proceedings. 

3. He seeks a stay but it’s not apparent to me and the husband is unable to tell me what child support application he currently has.  The Child Support Agency is not aware of any application that the husband has made for a departure order or review to the Child Support Agency.  There is no application for an objection on a review decision.  There is no application by the husband to the SSAT as there ought to be if he wasn’t satisfied with an internal determination made on behalf of the child support registrar.  There is no application pending to the Federal Circuit Court. 

4. In relation to the husband’s entitlement to bring an application for a departure order in this Court, the husband has not brought any such application.  If he did it is within my discretion as to whether or not this Court would deal with it together with other proceedings currently pending before it, but he doesn’t have any such application.  The husband states from the bar table that he has been misled by the Child Support Agency and he was told he only needed to apply for a stay and serve an order in those terms upon them.  Clearly that is not correct. 

5. The husband well knows from appearing in this court that when a party acts for themselves they’re responsible for the conduct of their own case.  Nobody else is responsible for conducting their case for them.  The husband says that he would like to seek a stay until the finalisation of the property proceedings.  That does not make sense to me.  If he wants to make a child support application he should do so in the proper form.  In the meantime, even with the husband’s material looked at, at its highest there does not appear to be a deficiency of income over his actual expenses. 

6. The husband has been critical of the wife for not bringing supporting financial documents to court herself.  It does appear that she has not brought much with her, but then again as there is no valid application before me for a departure order it wouldn’t be incumbent upon her to do so.  The wife makes an application herself.  By a response filed on 28 August 2013 the wife seeks:

   That paragraph 13 of the order of Cronin J of 24 December 2010 be discharged.

7. The wife has an affidavit in support sworn on 28 August 2013.  As best I understand the situation, by an order made on 24 December 2010 Cronin J sought to set the wife’s child support income at an amount of $36,000 in excess of her taxable income.  The wife says that her understanding of how that order would operate is that she was required to file an income tax return in which she inflated her actual income by $36,000 per annum.  That appears to be a basic and erroneous understanding of how Cronin J’s order would work.  In the event the wife did add $36,000 to her income for income tax return purposes in the financial years ended 30 June 2010 and 30 June.

RECORDED:   NOT TRANSCRIBED

1. She added $36,000 to her taxable income amount for income tax return purposes for the financial years ended 30 June 2011 and 2012.  The Child Support Agency, however, acting properly on the order made by his Honour then added a further $36,000 so that the wife’s income was inflated by $72,000 when it should have been inflated by only $36,000 in each of those financial years.  The wife has not yet filed her income tax return for the financial year ended 30 June 2013.  She has, however, figured out that she ought not add $36,000 herself because the Child Support Agency will do that in any event. 

2. The wife seeks relief today, but in my view the relief is not sought in proper form.  I am going to dismiss the husband’s application for a stay.  I am of the view that it is best to also dismiss the wife’s response to an application in a case.  In doing so I make it clear that I am not dismissing on the merits and nor have I considered on the merits the orders she seeks in relation to a discharge of Cronin J’s order and that it is open to her to do so or seek alternative relief in the future. 

3. It is just that this is a misconceived application for a stay.  This is a piggy-backed application and it seems to me that the matter should return to court when it is actually ready rather than be allocated a return date hoping that the parties will be ready to run their cases. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 August 2013.

Associate: 

Date:  22 July 2013