Prior & Prior (No 4) - [2023] FedCFamC1F 746

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prior & Prior (No 4) [2023] FedCFamC1F 746

File number(s): MLC 8811 of 2015

Judgment of: BENNETT J

Date of judgment: 29 August 2023

Catchwords: FAMILY LAW - CHILD SUPPORT- where a departure determination order was by consent for the payment of periodic and non-periodic child support- where liable parent makes application for a discharge from departure determination of child support.
FAMILY LAW - CHILD SUPPORT - departure application four step approach being change of circumstances; special circumstances, just and equitable; otherwise proper – where liable parent lost their job before departure determination order was made but then ceased to receive income – where no evidence of income earning capacity to support child support liability - where liable parent’s loss of income qualifies as a change in circumstances.
FAMILY LAW - CHILD SUPPORT where liable parent’s application to depart from their liability for periodic and non-periodic child support is granted with retrospective effect to 1 December 2020 save that any overpayment created by an administrative assessment of child support be forgiven by increasing the amount of child support payable in that period by the amount of the overpayment created.
FAMILY LAW - PRACTICE & PROCEDURE – where liberty is reserved to the parties to apply in relation to implementation of this order on written notice to the other.

Legislation:
Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 118 & 129

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13

Cases cited:
Hampson v Lightfoot [1996] FamCA 8; (1997) FLC 92-775

In the Marriage of Savery [1990] FamCA 30; (1990) 99 FLR 346

In the Marriage of Sheahan [1993] FamCA 21; (1993) 113 FLR 429

Sathra v Sathra [2013] FamCAFC 142

Division: Division 1 First Instance

Number of paragraphs: 133

Date of hearing: 26, 27 and 28 October 2021

Place: Melbourne (Via MS Teams)

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Thistleton

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

Table of Corrections

19 December 2023 On cover sheet, “26 & 27 October 2021” replaced with “26, 27 and 28 October 2021” as dates of hearing

ORDERS

MLC 8811 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PRIOR

Applicant

AND:
MS PRIOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

29 AUGUST 2023

THE COURT ORDERS THAT:
1.The departure determination order made on 31 October 2018 in respect of the children Y born 2003 and X born 2008 be, and is hereby, discharged as and from 1 December 2019 and thereafter there be an administrative assessment of child support.
2.The order for non-periodic child support made on 31 October 2018 be discharged as and from 1 December 2019 save that the father pay, be liable for and hold the mother harmless for payment of tuition expenses still owing to G School (if any) in respect of the attendance of the child Y at the school.
3.Pursuant to s117 of the Child Support (Assessment) Act 1989and subject to paragraph 4 of this Order, for the purpose of the administrative assessment of child support:
(a)for the child support period 1 December 2019 to 30 June 2020 the father’s adjusted taxable income be $95,328;
(b)for the child support period 1 July 2020 to 30 June 2021 the father’s adjusted taxable income be $26,983;
(c)for the child support period 1 July 2021 to 30 June 2022 the father’s adjusted taxable income be $27,183.

4.The annual rate of child support for any year in which an overpayment occurs be increased by the amount of the overpayment created.
5.Without prejudice to the operation of the Child Support (Registration and Collection) Act 1988, the mother and the father do all acts and things necessary to cause the monies held by DD Lawyers pursuant to paragraph 26.3.2 of the Order made on 31 October 2018, in the sum of $16,535.43 plus interest, to be released to the father.
6.I reserve to the parties liberty to apply in relation to implementation of this Order and to activate that liberty by contacting my associate …@... in writing and detailing the difficulty with implementation of this Order.
7.The father’s child support application filed on 20 December 2020 be otherwise dismissed.

AND THE COURT NOTES that for case management purposes and subject to any further application(s), the parenting proceedings in relation to X are adjourned to 8 December 2023 at 9:00 a.m. for directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Prior & Prior has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:

By application filed 21 December 2020, the father seeks the discharge of a departure determination order made on 31 October 2018. By the mother’s response filed 20 March 2021, the mother opposes the application and seeks that the father pay some further child expenses.
The subject children are Y born 2003 and X born 2008. At the time the departure determination order was made, the children resided with the mother in Australia, the father was a resident of the United States of America for taxation purposes and earning approximately $440,000 per annum as a senior manager. The departure determination order was part of a negotiated settlement implemented by an extensive order which the parties sought by consent to finalise parenting and financial proceedings between them. A matter of weeks before the consent order was made, the father’s employment was terminated with effect from late 2018. The father alleges that he proceeded with the settlement (and consented to the Order) in anticipation of obtaining other employment within six or so months. He did not obtain employment. A little over two years later, the father sought a discharge of his obligation to pay child support over and above what he has already paid to date and that the parties revert to an administrative assessment of child support.
The departure determination order is paragraphs 44 to 47 of the Order of 31 October 2018 and provides:-
44. There be a departure from the administrative assessment such that the rate of periodic child support paid by the father to the mother shall be $288 per week per child adjusted on 1 July 2019, and annually thereafter in accordance with the changes in the CPI for Melbourne for the year immediately preceding.
45.      The father pay by way of non-periodic child support:
45.1     For [Y]:
45.1.1School fees at [G School] as struck and when due and owing, including tuition fees, levies, composite fees and all other fees levied by the school; and
45.1.2All extracurricular and co-curricular expenses incurred whether through [G School] or otherwise, to which the father has agreed prior to [Y] commencing such activities […], including all costs associated with her participation in any music, sport or drama activities, competitions, exams, rehearsal or performances (including the cost of any instruments, equipment, or apparatus required to be purchased) capped at $3,500 per annum.
45.2     For [X]:
45.2.1 School fees at [F School] (or such other school as agreed between the parties in writing) until the conclusion of grade 6, and thereafter private school fees at [EE School] from the commencement of year 7 as struck and when due and owing, including tuition fees, levies, composite fees and all other compulsory fees levied by the school;
45.2.2All extracurricular and co-curricular expenses incurred whether through [F School], [EE School] or otherwise, to which the father has consented, including all costs associated with his participation, at his election, in any music, sport or drama activities, competitions, exams, rehearsal or performances (including the cost of any instruments, clothing, equipment, or apparatus required to be purchased); and
45.2.3 50% of the costs incurred by [X] upon commencing at [EE School] in year 7, including purchase of first school required computer and uniform.
45.3     For both children:
45.3.1 health insurance premiums at the current level with the mother to do all such acts and things to forthwith procure such insurance for the children; and
45.3.2Ambulance Victoria Memberships.
46. Both parties forthwith do all such acts and things and sign all such documents as may be required to make a joint approach to [EE School], for a scholarship or bursary or similar for [X], including the mother procuring from her father such documents in support of such application as may be required.
47. For the purpose of paragraph 45:
47.1 the father pay expenses directly to the relevant provider by the due date; and
47.2 the father reimburse the mother, if she has paid such expense in first instance, within fourteen (14) days of receiving a receipt for payment from her, by making such payment into a bank account nominated by the mother.
The departure determination order of 31 October 2018 effectively requires the father to pay child support to the mother of $2,500 per month as well as non-periodic payments towards medical expenses including maintaining the children’s private health cover, school fees and other associated expenses.
By his Application filed 21 December 2020 the father seeks:-
1. That the Child Support Orders contained in Paragraphs 44-47 of the Consent Orders signed on October 31 2018 be discharged and in doing so I seek to go to an Administrative Assessment.
2. I seek to have the Order applied retrospectively from December 1st 2019 and for it to have retrospective effect from that date.
At the hearing before me in October 2021, the father confirmed that he sought to rely on his Application for Final Orders from 21 December 2020 as the orders he currently seeks. Additionally, there is an amount of $16,535.43 plus interest, which is part of the father’s entitlement to a property settlement, being held by the father’s former solicitors pending the outcome of these child support proceedings. The father seeks that those funds be released to him.
The mother sought that there be no change to the current child support departure determination order save that the father also be required to pay for additional costs in relation to the parties’ eldest, Y’s health. Y was diagnosed with a medical condition and requires ongoing treatment and possibly surgery. The mother seeks that the $16,535.43 plus interest be paid to her.
At the time of the hearing in October 2021 the father was in arrears of both periodic child support ($26,352) and non-periodic child support ($17,991). According to the mother’s affidavit made on 30 April 2023 the total amount outstanding from periodic child support for both children is $48,803.04 not including any CPI adjustment.
THE LAW
Departure applications – terminology
The father’s obligations to pay $288 per week per child is an obligation to pay “periodic child support”.
The father’s obligation to pay school fees and other recurrent expenses is an obligation to pay child support otherwise than in the form of periodic amounts which I will refer to as “non‑periodic child support”.
Departure applications - preliminary issues
There are three preliminary issues to be addressed.
The first point is whether the father has standing to make an application to the court for a departure order. Section 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) provides that the application can be made direct to the court, as has occurred here, where the liable parent (in this case the father) and the carer entitled to child support (in this case the mother) are parties to an application pending in the court and the court is satisfied that it would be in the best interests 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 a child in the special circumstances of the case.
I am satisfied that this application for a departure order is properly brought in accordance with s 116(1)(b) of the Assessment Act. The other proceedings on foot between the parents are proceedings for the implementation of financial orders to implement the property settlement and parenting orders in relation to X. The proceedings for the implementation of the financial order is finalised save that there is the$16,535.43 plus interest still held by the father’s former solicitors pending the outcome of these child support proceedings. The remaining proceedings are parenting applications in relation to X which commenced on 29 April 2020 and have been amended or superseded by subsequent applications resting with the father’s amended application filed 11 August 2022 that he have sole parental responsibility and that he be able to relocate X to the United States of America. On 16 June 2023, the parenting proceedings were adjourned to 8 December 2023 at 9:00 a.m. for directions.
The second threshold point is the period for which the departure order can be sought having regard to s 118(2B) of the Assessment Act which provides that a court may only make an order in respect of a child support period which is not more than 18 months earlier than the day on which the application is filed. Here, the father seeks a departure from the departure determination which is retrospective to 19 December 2019. Even though the father seeks relief which goes back nearly four years, his application was filed on 21 December 2020, so no leave is necessary.
The third threshold point is whether there has been compliance with r 1.13(1)(a), (4)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which provides that the Child Support Registrar is to be served with an application under the Assessment Act. By correspondence dated 11 August 2023, and copied to the mother, the father informed the court that the application was served on the Child Support Registrar (“CSR”) on 8 April 2021 (Exhibit “F10”). I have no further details of service. The Child Support Registrar has not intervened in the proceedings.
Departure applications - substantive grounds
A departure determination order, such as the departure order in this case made on 31 October 2018, can be varied only by means of a fresh departure order or by discharge.
Where a departure is sought from an earlier departure determination order made pursuant to an order of a court, which is the case here, the applicant must demonstrate a change in circumstances (see Sathra v Sathra [2013] FamCAFC 142). In this case the husband relies for a change of circumstances on the fact that he did not obtain comparable, or indeed any ongoing, employment within six months of the departure determination and that he is still unemployed as the change of circumstances. Section 129 of the Assessment Act provides, inter alia, that the court may not discharge or vary the order for non-periodic child support unless it is satisfied that the variation is justified because of a change in circumstances of the child, the payer or the payee since the order was made.
A departure determination may be made on any number of occasions provided there are proper grounds for so doing. The requirements for a departure order are set out in s 117(1) of the Assessment Act which provides that:-
(a)In the “special circumstances of the case” one of the grounds of departure set out in s117(2)(a) exists;
(b)It is just and equitable as regards the child, the carer and the payer to make a departure order having regard to the matters set out in s117(4) of the Assessment Act; and
(c)It is “otherwise proper” to make to make the order having regard to the matters set out in s117(5) order.
“Special circumstances” have been said to include:-
(a)“facts peculiar to the case which set it apart from other cases”[1];
(b)facts which, “if not taken into account, would result in injustice or undue hardship to any person”[2]; or
(c)“something which is special or out of the ordinary”[3].
[1] In the Marriage of Savery [1990] FamCA 30; (1990) 99 FLR 346 at 350; In the Marriage of Morrison [1990] FamCA 35; (1990) 99 FLR 411.
[2] In the Marriage of Sheahan [1993] FamCA 21; (1993) 113 FLR 429 at 432-433.
[3] Hampson v Lightfoot [1996] FamCA 8; (1997) FLC 92-775 at 84,560.
Section 117(2) sets out a number of special circumstances as grounds of departure. Here, the father appears to rely on section 117(2)(c)(ia) and (ib) which provides that in the special circumstances of the case, the application in relation to the children of the previous departure determination would result in an unjust and inequitable determination of the level of financial support to be provided by him for the children because of the loss of his employment and income and the diminution in his income earning capacity.
The mother does not admit that the father has not been able to find employment in America and she asserts that he received significant monies in the final alteration of property interests between them such that, together, these considerations mean that the departure determination order should remain unchanged save that the father make a further contribution in relation to the medical condition suffered by Y.
Just and equitable
In determining whether it is just and equitable as regards the liable parent father and the payee mother, I have regard to the matters contained in s 117(4) of the Assessment Act being:-
(a)       the nature of the duty of a parent to maintain a child; and
(b)      the proper needs of the child; and
(c)       the income, earning capacity, property and financial resources of the child; and
(d)the income, earning capacity, property and financial resources of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)        himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the custodian entitled to child support in providing care for the child; and
(g)       any hardship that would be caused:
(i)        to:
(A)      the child; or
(B)      the custodian entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)       to:
(A)      the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.
Otherwise proper
In determining if it is “otherwise proper” to make the departure order I must have regard to the matters in s117(5) which are:
(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.

Section 129(2) of the Assessment Act provides that a court must hear and determine any pending application for a departure order for periodic child support prior to determining any departure order for non-periodic child support in relation to the children, the payee and the payer.
SOME BACKGROUND
The father was born in the United Kingdom in 1962 and is 61 years old. He now resides in City H, State FF in the United States having dual citizenship with Australia and America. The father is currently not in paid employment. The father was employed until late 2018 as a senior manager of GG Pty Ltd, earning approximately $440,000 per annum.
The mother was born in Melbourne in 1970 and is 53 years of age. She lives in Melbourne. The mother is employed as an educator.
X is currently in the United States. He travelled in late 2022 pursuant to my Order made 17 October 2022 for which my reasons for decision were published as [2022] FedCFamC1F 783. X was due to return to Australia in mid-2023 but refuses to return. X has not had contact with the mother or his sister since July 2022.
Y lives with the mother in Australia and has no had contact with the father since separation. In the first round of parenting proceedings the family was assessed by Dr HH who published two reports. They received therapy from Ms JJ. They were assessed by Family Consultant Ms KK who prepared a family report. This was a case of high parental conflict in which Y aligned herself with the mother and, although living in the mother’s primary care, X sought to maintain a relationship with the father. In the second round of parenting proceedings, which are still underway, X was seen by Family Consultant Ms Q in March 2021 and May 2023. The Family Consultant prepared a family report on 18 March 2021 and a specific issues report on 18 May 2023. The Family Consultant has been cross examined.
The parties commenced cohabitation in 1995 or 1996 (the parties could not agree). They married in 1997 in the United Kingdom. Y was born in the United Kingdom in 2003. In 2004 the father and mother and Y relocated from the United Kingdom to Australia. In 2005 the family relocated from Australia to Country LL. X was born in 2008 in Country LL. In 2008/9 the family relocated back to Australia.
The parties separated in September 2015 when the father left the family home. They were divorced with effect from 2018. Both parties have re-partnered although their respective partners do not live full time with them.
The father issued proceedings in the Federal Circuit Court of Australia (now Division 2 of this Court) in September 2015 with respect to financial matters. In November 2015 the mother filed a response to the father’s initiating application seeking orders for, amongst other matters, child support. The parties attended a number of court events before the matter was transferred to this Court in August 2017. I set the matter down for final hearing on 5 November 2018.
In anticipation of the final hearing on 5 November 2018:
(a)On 15 August 2018 the father filed a financial statement which disclosed income of $8,480 per week as senior manager of GG Pty Ltd. His expenses were $9,094 including $577 per week child support. His liabilities were $1,013,357. He had property of $2,000,513 and superannuation of $671,434.
(b)On 1 August 2018 the mother filed a financial statement which disclosed income of $1,386 per week as an educator at PP Organisation. Her expenses were $1,314 per week. Her liabilities were $165,000. She had property of $900,196 and superannuation of $31,716.
(c)On 5 October 2018 the father filed a trial affidavit in which he described his home as being in City H in the United States. At paragraph [8] “My current income is approximately $433,000 AUD gross per annum (subject to the exchange rate applicable between the USA and Australia from time to time). My net income is approximately $240,600 AUD per annum” The father proposed that X reside with him, be permitted to relocate X’s residence to the United States of America and Y would continue to reside with the mother in Melbourne. At paragraph [94(a)] of the father’s affidavit he deposed that, in the event that he was not permitted to relocate X to the United States of America, “I will not be able to continue my current role with [GG Pty Ltd]. [GG Pty Ltd] requires me to be based in the USA. I will therefore have no choice but to resign from my position and I will be required to obtain alternate employment. I do not anticipate securing a similar income in alternative employment. This could cause significant disruption in relation to, amongst other things, the payment of private school fees.”
(d)On 19 October 2018 the mother made a trial affidavit in which at paragraph [4.2] she deposed, inter alia, “today, 19 October 2018, at 9:06 AM, my solicitors received a letter from [Mr Prior’s] solicitors stating, amongst other things: “Our client instructs that the chairman of [GG Pty Ltd] very recently conveyed to our client the board was seeking our client’s removal [from his position]. As a result our clients employment will terminate [in late] 2018.”
(e)On 31 October 2018 the parties submitted a detailed minute of consent order containing the relevant departure determination order in respect to child support. The Order also provided that the parents would have equal shared parental responsibility for Y and X, that the children would live with the wife, Y would spend time and communicate with the father in accordance with her wishes and that the mother and father would do all acts and things necessary and sign all documents as may be required to complete X’s enrolment at EE School commencing in term one at year seven in 2021. There was detailed provision for the time and communication between the father and X including X spending time in the United States.
By letter from the mother’s former solicitors, MM Lawyers, to the father’s former solicitors, NN Lawyers, dated on 29 October 2018 the mother sought clarifications from the father’s solicitors of the father’s termination payouts. In particular, the father’s entitlements to “carried over accrued benefits” as well as benefits arising from the Deed of Termination. In reply on 29 October 2018 the father’s solicitors confirmed their instructions that the father would not be entitled to any “carried over accrued benefits” and that the father expects to receive:-
(a)AUD$133,488 gross by way of salary payments; and
(b)AUD$25,029 by way of annual leave payment;
for a gross payment of AUD $158,517.
The father described his departure from GG Pty Ltd as following a “failed and ill-advised IPO”.
The father gave evidence that he was paid the above amount on a fortnightly basis until 31 December 2018. In addition, the father claims he received a payout of four months’ salary and three weeks annual leave on 1 January 2019 which would take the father’s remuneration up to end April 2019.
On the mother’s solicitors calculations, which were notably apart from the father’s calculations, the benefits arising from the Deed of Termination were as follows:-
(a)Annual leave from October 2018 to December 2018 at USD$6,154 per week for a total of USD$73,848 or AUD$104,097;
(b)Four months salary being USD$106,667 or AUD$150,358; and
(c)Three weeks’ annual leave being USD$18,462 or AUD$26,024.
I was not addressed on this point. I will treat the father as receiving his income, at the rate he received when employed of $440,000 per annum until end April 2019.
After the expiration of his non-competition agreement the father was employed for a short period with a private equity company and claims to have made attempts to acquire his former company which were unsuccessful.
The father deposes that during February and March 2020 he was in “advanced negotiations” to secure a senior position with four different organisations. The offers which the father received were retracted following the outbreak of the COVID-19 pandemic.
From February 2020 to August 2020 the father was employed as an interim part-time senior manager, supporting investors from Africa and Australia.
On 11 March 2020 the World Health Organisation characterised the global outbreak of Covid‑19 as a pandemic. By 31 March 2020 Melbourne went into the first of six government mandated lockdowns and international travel largely ceased.
In 2019 and 2020 the parties filed various applications and there were numerous hearings about implementation of the final property order in relation to the division of a pension fund, release of $250,000 in funds held by DD Lawyers as security for fulfilment of father’s obligation to transfer the pension fund and X’s time with the father. By a Response to an Application in a Case dated 16 October 2020, the father sought, inter alia, “a immediate variation to Orders 44, 45 and 47 and seek to immediately return to an administrative assessment regarding all financial support until such time as I am employed.” This was a precursor to the father’s formal application filed 21 December 2020.
In his affidavit affirmed on 15 October 2020 the father deposed, inter alia: –
11.Even though I have not had any earnings since [mid-2019] I have maintained as best as possible my payments concerning the children. I am no longer in a position to do that. My cash funds are very limited in my best option to generate some form of income is to purchase a business and I cannot do that without the final part of my property settlement and also by having to cut my own outgoings since the sale of my house as this process is taken so long. I find it ludicrous that [Ms Prior] is insistent that both children continued to have the most expensive schools in Melbourne when I do not have an income and she has not made any offer or suggestion to carry her weight financially after a major change in most circumstances which have been completely affected and impacted by Covid.
On 27 October 2020 Orders were made by a Registrar for the filing and serving of updated financial statements and for the parties to exchange copies of their last three taxation returns. The father did not comply with the orders in so far as his 2018 Tax return was not provided. The father referred to his Federal tax return for 2018 as an annexure to his affidavit affirmed on 16 October 2020 and filed on 17 November 2020 but it was not attached to the mother.
On 15 November 2020 the father filed an updated financial statement disclosing an average weekly income of nil having resigned from GG Pty Ltd in late 2018. His expenses were $3,172 including $576 per week child support. His liabilities were $922,000. He had property of $1,046,000 and superannuation of $368,000.
On 17 November 2020 the father filed an Application for final orders in which he, inter alia, sought:-
…an immediate variation to Orders 44, 45 and 47 of the Court Orders sated October 2018… ad seek to immediately pay an Administrative Assessment regarding all financial support until such time as I am employed.
In an affidavit filed 26 November 2020 the father deposed as follows:-
I would ask the Court to recognise that at any point since the time I stopped receiving a salary I could have elected to apply for an Administrative Arrangements to reduce my personal expenditure and liabilities but chose not to as I was both optimistic that I would secure another job and would continue, as a responsible father, to support my children as I have done throughout the entirety of their lives.
I would ask the Court to recognise that I have contributed in excess of $50,000 for the children’s schooling and general welfare during this period whilst I have not been in paid employment.
I am now in a position where I am living off funds that should either be invested in property or retirement schemes. Currently it makes sense to keep my current house as I receive tax relief on the mortgage payments. The balance between interest and capital repayment is approximately the same as if I was renting. However, much more importantly, I want [X] to have a proper home to enjoy when he is here and hopefully my daughter to visit too.
This was also a precursor to the application filed 21 December 2020.
By response filed on 15 December 2020 the mother sought that the father’s application be dismissed and on 11 December 2020 the mother filed an affidavit in support of the orders she sought being, inter alia, a continuation of the operation of the October 2018 departure order. She deposed:-
7. [The father]:
(a) Earnt over $1.8m gross (taxed at lower US tax rates) in the three and a half years from separation in September 2015 to March 2019 (based on his trial affidavit, Deed of Termination and Separation and tax returns);
(b)Received over $655,000 from the property settlement in the last 18 months (pursuant to Final Orders, orders made 9 October 2019, 15 October 2019 and 9 October 2020);
(c)Has pensions totalling $368,000 based on his current Financial Statement (which I dispute and say have (sic) a higher balance), which are accessible given he is over 55;
(d)Has, according to his affidavit material, and representations to this Court this year, only taken unpaid roles in search of equity positions in the last two years, after resigning from a $600,000+ per annum salaried position three weeks prior to the scheduled trial of this matter and the agreed Final Orders;
(e)Has not utilised his considerable earning capacity, or obtained any job, of any level, at all, to meet his child support obligations.
On 14 December 2020 the mother filed an updated financial statement disclosing income of $1,512 per week as an educator on a contract at D Organisation whilst on temporary leave from PP Organisation. Her expenses were $2,330 and liabilities were $868,397. She had property of $51,487 and superannuation of $473,433.
The mother in her affidavit filed 15 December 2020 points to “anomalies” between the father’s 2018 financial statement and 2020 financial statement as follows, noting that on the mother’s calculation in the period between filing the first and second statement the father had been in receipt of “$825,000 net income” according to his remuneration package:-
(a)the mother disputes the reduction in the father’s liabilities from $1,013,257 in his last financial statement and the $922,000 now claimed;
(b)the mother disputes the claim in the father’s 2018 financial statement that he paid $3,700 tax on his weekly income on the basis that amount seemed “high” for US tax rates;
(c)the mother disputes that the father has ever owed or currently owes money to Mr K in the amount of $150,000;
(d)the mother disputes the existence of a second mortgage on the father’s main home which appears in his most recent financial statement;
(e)the mother disputes that the father is now, according to his current financial statement, paying double the car and home insurance compared to his last financial statement;
(f)the father now claims a $271 per week hire purchase/lease agreement for Motor Vehicle 1 which he purchased outright;
(g)the father does not account for the $50,000 held in trust by his former solicitors at DD Lawyers;
(h)the mother disputes that the father in his current financial statement does not account for his new partner in so far as it relates to other income earners in the household;
(i)the mother disputes the amount claimed as payment for Y and X as being “grossly excessive”;
(j)the mother asserts the father has undervalued his home at $972,000 in his current financial statement;
(k)the mother disputes the value attributed to the father’s recreational vehicles as an undervaluation;
(l)the mother disputes that the father does “not know” the value of chattels in his possession;
(m)the mother disputes the father’s total income tax assessed and unpaid; and
(n)the mother disputes the amounts the father claims for his superannuation/ pensions.
On 18 December 2020 I made orders:
1. From the monies held by [DD Lawyers] pursuant to paragraph 26.3.2 of the order made on 31 October 2018 there be paid to the mother:
a.the sum of $6,146.29 being monies to which she is entitled to be reimbursed by the husband pursuant to paragraph 38.4.2 of the Order made on 31 October 2018;
b.by way of arrears owing under the said child support orders the sum of $11,318.28 and the father have liberty to apply to have any variation order made on his child support application to have retrospective effect;
c.$16,000 to [G School, Suburb QQ] and the balance of funds remain held pending the final hearing and the quantification of child support (if any) owing by the father to the mother.
In the mother’s affidavit filed on 30 April 2023, she deposes that the balance is “the sum of at least $16,535.43 plus interest held by [DD Lawyers]”.
THE EVIDENCE
Concurrently with his Initiating Application on 21 December 2020, the father filed a further updated financial statement with the court disclosing a weekly income of nil being unemployed. His expenses were $3,172 including $576 per week child support. His liabilities were $922,000. He had property of $1,146,000 and superannuation of $368,000.
Mother’s case outline of 16 December 2020:
Child Support
39. There are Final Orders in place. The rule in Rice v Asplund operates to prevent a review of Final Orders. There has been no substantial change. The Husband resigned three weeks prior to the scheduled trial of the matter [paragraph 23 of Husband’s affidavit of 16 November 2020 and Annexure A to My Reply Affidavit]. He executed Final Orders while unemployed. He says he remains unemployed. There has been no change.
40. If the Court does not accept that position, it appears to me that the relevant legislation is in both the Family Law Act and Child Support (Assessment Act) 1989.
41. There appear to be various factors under section 63 and 129 (relating to periodic and nonperiodic child support) which the Husband must be able to satisfy the Court of in order for the Court to vary the orders. A significant change to the position that existed when the Final Orders were executed is required. The Husband was unemployed at the time of executing those orders by virtue of his voluntary resignation three weeks earlier. He says he remains unemployed now. Nothing has changed.
42. Otherwise, for the orders to be modified there must be “just cause”, it needs to be “just and equitable” to do so and “proper”. I say none of these objectives are fulfilled by the Husband’s application, for reasons as follows:
43.1 It is the Husband’s income earning capacity which is relevant, not the income he chooses, or in this instance, chooses not, to receive. The Husband’s income earning capacity is substantial. His tax statements indicate in 2016 he received USD$382,731. In 2017 he received $USD435,775. In 2018 he received USD$323,263.
43.2 The Husband resigned from his employer, and negotiated a substantial payout, in [late] 2018, three weeks prior to the scheduled trial of the substantive proceeding and three weeks prior to Final Orders (Deed of Termination and Settlement- Annexure A to My Reply Affidavit). It is contended he did so strategically. He says he has not worked since.
43.3 The Husband deposes in his affidavit of 16 November 2020 that “after my non-competition agreement expired I then spent a few months working with a [financial] company and [an organisation] in [City H] to try and acquire the company I just had just left”. He goes on “In [late] 2019 it became clear that during the year the company had encountered financial difficulties and was no longer of interest to my backers”. No evidence is provided. The Husband effectively deposes to doing nothing to obtain secure, paying employment to ensure he could fulfil his child support obligations, for 13 months post resignation. He then apparently spent his time on a speculative “equity deal” that apparently didn’t eventuate.
43.4 The Husband deposes at paragraph 29 of his affidavit of 16 November 2020 “In February, I took on an interim part-time [senior management] role, supporting a group of investors from Africa and America. The appointment lasted until [mid-2020] as sadly the investors did not have access to the funds they led us to believe they had”. Again, no admissible evidence is provided. Nevertheless, the Husband has again spent 6 months apparently pursuing speculative equity deals. He therefore, between resigning in [late] 2018, and [mid‑2020], spent 19 months either doing nothing to obtain employment, or spending his time on speculative, unsupported endeavours with no steady income to enable him to meet his obligations.
43.5 There is a complete absence of evidence before the Court as to the genuine attempts the Husband has made, if any, to obtain regular, steady, paid employment, at any level, and of any kind, since the Final Orders. The Court is provided with anecdotes, sweeping statements, the apparent advice of people “in the know”, commentary and opinion. There is no evidence to support the Husband’s application.
43.6 What is known, and evidenced, is:
43.6.1 The Husband received over $1.8million gross (at US tax rates) in salary between [late] 2015 and [late] 2018 (based on the Husband’s Trial Affidavit, Tax Returns and Deed of Separation and Termination).
43.6.2 He received $655,000 pursuant to the property settlement, with a further $50,000 being held on his behalf by his lawyers (pursuant to orders of this Court made 9 October 2019, 15 October 2019 and 9 October 2020
43.6.3 He has at least (and I contend about $100,000 more than) $368,000 in pensions he can access given he is over 55 years of age (his Financial Statement of 16 November 2020)
43.6.4 His Financial Statements indicate that since August 2018 he has received over $825,000 net, while apparently only reducing his total liabilities by less than $90,000 (comparison of his August 2018 Financial Statement against 16 November 2020 Financial Statement, Deed of Termination, paragraph 1(a) of My Reply Affidavit).
43.6.5 He has purchased a lavish house in [City H] for three times the value of the average property in that area, and purchased [Motor Vehicle 1] (paragraph 10(d) of My Reply Affidavit and Annexure E, the Husband’s Financial Statement)
43.6.6 He has an income earning capacity of at least USD$400,000 based on his tax returns.
43.6.7 He has, pursuant to his own affidavit material, sought speculative, unpaid positions since resigning on the eve of the trial of this matter; has failed to obtain secure, paid employment, at any level; and failed, potentially intentionally, to exercise his significant income earning capacity at all.
The Husband now contends he should not have to pay for [X’s] education; is in arrears on periodic child support; is in arrears on [Y’s] school fees; and says his periodic payments should be reduced to $0. It is contended this is not “just and equitable”.
43.7 The Husband then points to me, having been required to maintain the proceeds of the property settlement so I could buy a home for the children and I to live in (I am still waiting for $250,000 to be released to me so I can complete the purchase after this Court previously ran out of time to hear my application), and says effectively, she still has money from the property settlement that I have otherwise wasted; she has worked and earnt money while I have not sought proper employment; so therefore she should pay for [X’s] education and I should pay nothing. This is in circumstances where I have the care for two children; have a moderate income and earning capacity; household expenses exceed my income; the Husband fails to make child support payments; I have not been able to purchase a home; and I will need to pay off a mortgage for the home we end up living in. Again, this doesn’t pass the “just and equitable” assessment.
44 The Husband does not come before this Court with clean hands. There is a history of the Husband foregoing over $100,000 in salary payments until after court hearings; delaying bonuses until after court hearings; receiving side payments from his employer while claiming not to be taking a salary; claiming money problems before court proceedings and receiving $320,000 days later; concealing shareholdings; failing to provide disclosure or providing misleading disclosure (paragraph 4 of My Reply Affidavit).
45 Even currently there are very significant issues with the Husband’s financial position as outlined in his Financial Statement (paragraphs 1-3 of My Reply Affidavit)
46 Again, the Husband has not provided proper disclosure. With respect to his tax documents of 2018, being the year in which he resigned, the Husband first failed to provide anything, and as of yesterday, has only provided incomplete documents.
47 There should be no change to the Final Orders. It is not “just and equitable” to do so. The legislation requires consideration to be given to the “proper” needs of the child including “the manner in which the child is being, and in which the parents expected the child to be educated or trained”. The legislation requires those needs be prioritised. The Husband at all times has known of future child related expenses were coming. He did not act responsibly and put himself in a position to meet his obligations. It is not just and equitable that he seeks to avoid his responsibilities.
48 Despite all this, my application makes provision for the Husband to “come to the table”, get a steady, reliable, paying job, and provide for the children’s educational needs as agreed and ordered. If the Court, despite all of the above, is still not willing to enforce the Final Orders, the $50,000 remaining in Australia with the Husband’s former lawyers (after deductions for money the Husband owes set out below) should be used to pay for school fees. When that money runs out, and if the Husband still does not have a job, I will do the best I can to pay for the children’s educational needs.
Conflicted Position
49 It is contended the Husband’s position is full of contradictions and conflicts
50 With respect to coronavirus, for the purpose of the child support matter, he amplifies the apparent impact of it on the economy and his job prospects, but plays down the health implications with respect to the parenting application.
51 With respect to his economic position, he deposes at paragraph 11 of his affidavit of 16 November 2020, to being in a “strong and stable position” when it comes to his parenting application; but then says with respect to child maintenance payments “it is not possible for [X] to attend a fee-paying school” and seeks an administrative assessment having the effect that he pays $0 in child support for two children.
FINANCIAL ORDERS
Periodic and Non-Periodic Child Support
52. There are arrears in periodic child support and non-periodic child support. The Final Orders create those obligations, they have not been complied with. [G School] need to be paid to secure [Y’s] Year 12. I rely on paragraphs 46-48 of My Application Affidavit.

In her affidavit filed 11 December 2020 the mother deposes:
5.I have been ordered to provide my proposal for [X’s] schooling. I seek that [X] attend [EE School] as determined, by consent, in the Final Orders, where he is already accepted to commence Year 7 in 2021. I maintain [Mr Prior] had, and continues to have, the capacity to make the payments relating to [X’s] education agreed in the Final Orders. To the extent he says he does not, I say he has not taken reasonable, or responsible, steps since separation, or the Final Orders, to ensure he could meet the expenses for which the children have been long anticipated.
6.[X] was enrolled in [EE School] by [Mr Prior] and I in 2009. [Y] is attending [G School], They were both intended to have a Catholic private education from an early age. The costs involved were well known and factored into a settlement, and Final Orders, predicated on the children’s education being ensured by [Mr Prior].
…
34.[Mr Prior] had access to 1,698,166 Qantas points at the time of Final Orders, which he can utilise to minimise cost of flights, which require use of just 41,900 points at a time. (see Annexure 9). The travel documents [Mr Prior] provides me indicate memberships with [two airlines], which he claimed not to have when disclosure was requested in the main proceeding, so I’m unsure whether they can be used as well.
…
40.The Final Orders were made in circumstances where it had been difficult to progress matters in relation to the children’s schooling after separation, detailed in the main proceeding. For instance, at separation [Mr Prior] threatened by letter “please be aware, however, that I have absolutely no legal obligation to pay for secondary schools (see Annexure 12). He had a salary of $260,000 at the time according to his trial affidavit. Judge Stewart ultimately had to order that [Y] would commence at [G School] in Year 7 after [Mr Prior] sought to frustrate her enrolment (November 2015 orders). History is now repeating with [X].
41.I hoped a final order by consent, as opposed to a court made order, would assist. However, even after Final Orders, [X] continued to return from time with [Mr Prior] commenting that he would not be going to [EE School] as [Mr Prior] was taking me back to court; and that if he went to America he’d “get the [EE School] money, so that was better”. I addressed this with [Mr Prior] in emails. [Mr Prior] stated “we don’t discuss [EE School]”.
…
Child Support/ Arrears
46.[Mr Prior] failed to make periodic child support payments at all in May 2019, July 2019, November 2020, and December 2020, despite receiving $200,000 pursuant to orders made 9 October 2020. He otherwise refuses to make payments weekly as ordered, reduced the monthly payments he was making to $4 per month (for unknown reasons), and otherwise refuses to make adjustments for CPI as required by the Final Orders, despite multiple requests. The total arrears are $11,314.28 which I seek.
47.Communications with respect to child support are often laborious – every dollar, every activity is difficult. I have given up and just paid some of the time. [Mr Prior] ignores requests for court ordered payments, or otherwise makes comments such as “I have had matters of greater concern to deal with than [extracurricular] lessons…” and “I am not an open cheque book”. He otherwise responds to my requests as being “silly”, fails to make promised payments, says “something went awry” with payment, says non-payment “was a bank issue”, says he “could have stopped paying earlier”, or that he’ll deduct money from payments to account for purchases he alleges he made for [X]. Despite numerous emails, since Final Orders, [Mr Prior] has refused to pay for [X’s extracurricular activities]; and refused to pay [Y’s extracurricular activities]. The amounts total $2,466.47 (see Annexure 14)
48.[Mr Prior] has not met his obligations under paragraph 45.1 of the Final Orders. He is in arrears to [G School] in the amount of $9,639.75, which I seek be ordered to be paid (see Annexure 15).
In her affidavit filed 15 December 2020 the mother deposes:
[Mr Prior’s] Financial Statement
1.I do not accept [Mr Prior’s] financial position as alleged in this Financial Statement of 15 November 2020 (Current financial Statement”). A comparison to his “Last financial Statement” of 15 august 2018 indicates a number of anomalies:
a.In his Last Financial Statement [Mr Prior] claimed to have total liabilities of $1,013,257. In his Current Financial Statement he claims to have liabilities of $922,000. Pursuant to his Last Financial Statement his total weekly salary at the time of making that statement (August 2018) was $8,343 per week. Pursuant to paragraph 23 of his affidavit filed 15 October 2020 and the Deed of Termination and Settlement (“see Annexure A”) [Mr Prior] was paid that salary until [mid-2019]. [Mr Prior] has not provided his tax returns for 2018, despite being ordered to do so. However, allowing for $8,343 over conservatively 36 weeks, [Mr Prior] earnt over $300,000 in the period between his Last Financial Statement and his apparently no longer receiving an income in [mid-2019]. He claims in his Last Financial Statement to have paid $3,700 tax on that income per week, which I dispute as being high based on US tax rates. However, even allowing for that sum, he earnt around $170,000 net. He has since received $655,000 pursuant to orders of this Court and the property settlement. So, in the period between his Last Financial Statement and Current Financial Statement, he has received at least $825,000 net (in a little over two years), yet only reduced his total liabilities by less than $90,000. The proportionately minor reduction in his liabilities is even more stark given it allows for the apparent $155,000 reduction in debt to a “[Mr K]”. I dispute this was ever required, or has even been paid. If that “Payment” is excluded, [Mr Prior] has purportedly increased his liabilities by around $60.000 during a period where he received around $825,000.
b.[Mr Prior’s] current Financial Statement identifies a “second mortgage on main home” which is not evidence in any way. There is no indication as to why it was necessary; what amount he received under this “second mortgage”; where those funds are; or how they have been utilised.
c.He is now paying almost double the car and home insurance compared to his last Financial Statement, which appears odd given there are no details of corresponding additional property or car purchases provided.
d.He claims $271 per week “hire purchase/lease agreement” for [Motor Vehicle 1] he bought outright.
e.He has not accounted for the $50,000 held by his former solicitors, [DD Lawyers], pursuant to court orders, anywhere in his Financial Statement.
f.He deposes to having re-partnered but provides no details under Section E relating to other income earners in the household.
2.There are other elements of [Mr Prior’s] Financial Statement which appear inaccurate:
a.I dispute the amount stated as payment for [Y] and [X], at items 31 and 34. The amount at paragraph 34 in particular is grossly excessive. At item 34, [Mr Prior] claims to make weekly payments of $863 for the benefit of the children, above and beyond the periodic payments, which he has ceased paying. [Mr Prior] therefore claims to spend as much on the children, outside of child support, as I do, in circumstances where he ordinarily has care of [X] around half the time I do, and doesn’t spend any time with [Y]. The only possible explanation would be that he has included [Y’s] school fees in this calculation which he does not pay, and which are over $9,693 in arrears.
b.I dispute the value given to the house. It was recently on the market for over $1m.
c.I dispute the value of [recreational vehicles Mr Prior] owns total $4,000.
d.I dispute that [Mr Prior] does ”not know” the value of chattels in his possession. He deposed to spending $45,000 on furnishing an apartment prior to purchasing his house and a review of his bank statements prior to the scheduled trial indicated he has spent over $100,000 further at [various retailers].
e.I dispute [Mr Prior] has total income tax assessed and unpaid of exactly $100,000 (item 48). No evidence whatsoever has been provided of this. I dispute [Mr Prior’s] claims as to his apparent “tax advice” for 2020 and “future” tax liability” on a $250,000 payment in a year where he says he had no other income. [Mr Prior] has historically claimed “future”, or “possible”, US tax debts on his Financial Statements and affidavits, which never appear to actually materialise (see for example paragraph 103(m) and 103(n) of his trial affidavit sworn 5 October 2018).
f.I dispute that [Mr Prior] ever owed, or currently owes, money to a “[Mr K]”.
g.I dispute the amounts [Mr Prior] provided for his superannuation/pensions. All of my funds, predominantly transferred from [Mr Prior], have achieved significantly more growth than [Mr Prior] has indicate his have, in the same period of time.
3.There were considerable disclosure issues throughout the substantive proceeding. Again, currently, there are assertions made without any supporting evidence, with the Court asked to simply take [Mr Prior] at this word. [Mr Prior] was ordered to provide three years of most recent tax returns, He has not provided anything for 2018, being the year in which he resigned. He provided attachments, labelling one “2018 Federal Tax Return”. Upon opening the attachment, he has simply provided the 2017 US Tax documents. I have written o [Mr Prior] requesting provision of his 2018 Tax documents as ordered.
4.I am again concerned [Mr Prior] is manipulating his financial position for the purpose of the court proceedings. There is a long history of this. By way of example:
a.[Mr Prior] elected to forego his salary from the time of separation in September 2015 until after the first adjourned trial in June 2016. By letter dated 23 March 2016 his solicitors wrote “It is correct that our client’s salary has not been paid for a period of time…Our client advises that he is uncertain whether or not any back payment will be expected to be made in relation to this salary. However, based on calculations, the xum of approximately $81,300 net of tax is a fair and reasonable estimate to cover the period from October 2015 to March 2016 should he ultimately decide to receive back payment for the amount of salary owing to him”.
b.After writing, via his solicitors, that he could not pay items such as car registration and insurance because of his “dire financial position” in the lead up to trial in 2016, and that he “simply does not have the money”, [Mr Prior] received around $320,000 within days of the adjournment of the trial.
c.[Mr Prior] alleged he was not receiving a salary in the lead up to the first scheduled trial in June 2016, but it was subsequently discovered through bank statements he had received payments of $13,550.67 and $14,621.37 immediately following mediation, which were later described by letter as being “treated as salary but for accounting purposes have not been delivered through the payroll”.
d.[Mr Prior] deferred receipt of his bonus for the 2014/2015 financial year until four days after the adjournment of the first trial in July 2016.
e.I otherwise refer to paragraphs 151-162 and 190-211 of my trial affidavit sworn 19 October 2018 which sets out extensively the various manipulations of [Mr Prior’s] financial position. I consider same is occurring now.
5.The persistent claims of being unable, or unwilling, to pay for the children’s educations are not new. They are not a result of some sudden deterioration in [Mr Prior’s] financial position. They have been a constant throughout, regardless of [Mr Prior’s] income at the time. I refer to paragraph 40 of my affidavit dated 11 December 2020 where [Mr Prior] threatened not to pay for school fees after separation while on a salary of $260,000. Two years later, he wrote on 15 September 2017 “I am unable to deposit more than $500” in respect of outstanding fees owed to [G School]. His income tax returns for that year, 2017, indicate gross income of US$435,775, being around $560,000. One year later the story was the same, I refer to paragraphs 13(b), 146(c) AND 150(A) OF [Mr Prior’s] trial affidavit dated 3 October 2018, where [Mr Prior] claimed he could “not afford to continue to make payments outlined above on my usual income” and sought that periodic child support be “as assessed”/ His usual income at the time, according to paragraph 8 of that same affidavit was $433,000 per annum. I urge the Court to review paragraphs 212-219 of my trial affidavit sworn 19 October 2018 which sets out extensively the approach [Mr Prior] has taken over many years to making even minor payments relating to the children while earning very significant salaries. His current position is an extension of a long held intention not to pay.
…
10In relation to paragraph 7, I object to the paragraph as being full of subjective thoughts, anecdotes, commentary and opinion with no actual evidence in support. Otherwise:
a.I deny [Mr Prior’s] work situation has been “dramatically affected by Covid-19”. [Mr Prior] voluntarily resigned from a position paying, according to him, $433,000 per annum (paragraph 8 of the affidavit dated 3 October 2018) three weeks prior to the scheduled trial of this matter in [late] 2018 (paragraph 23 of his current affidavit). That was [over a year] before Covid-19. He’d have been in employment had he not chosen to resign at such a curious time. According to paragraphs 24 and 29 of his affidavit [Mr Prior] has spent much of the time since resigning apparently seeking speculative “equity” positions, instead of stable, paid roles, which would enable him to fulfil child support obligations. He otherwise deposes at paragraph 27 of his affidavit to seeking [senior management] positions, instead of seeking paid employment at any level to ensure he could meet child support obligations.
…
d.I am not in a more “favourable” financial position than [Mr Prior]. [Mr Prior’s] financial position, if it is to be believed, is a result of choices he has made in the context of legal proceedings. I have not, for instance, even been able to complete the purchase of a home yet. [Mr Prior], on the other hand, chose to purchase a house for [over US$650,000] in 2018 (paragraph 103(d) of his trial affidavit sworn 5 October 2018) when the average sale price of homes in that area at that time was USD$224,481 (see Annexure E). The house he purchased is, according to paragraph 93(b) of his 5 October 2018 affidavit, “a large five bedroom property, with four bathrooms….a games troom, gym, formal dining room, formal loung/music room, large kitchen and eating area and large rumpus room…set on acreage”. He lives there alone when [X] is not there. He otherwise had access to over $1.8m in income in the three and a half years between September 2015 and [mid-2019] (based on his trial affidavit, Deed of Termination and Separation and tax statements); has received $665,000 from the property settlement in the last 18 months, and has, according to his Financial Statement, $368,000 in pensions which he is able to access, being over 55. On top of that he has, based on his trial affidavit, an income earning capacity of at least $433,000. That he allegedly finds himself in a position of not being able to support [X’s] education is bewildering.
…
11.I do not admit, or accept, paragraph 8. I again object to its contents as unsupported by any actual evidence and simply commentary and opinion. The assertion [Mr Prior] has taken his house in [City H] off the market to provide a stable environment for [X] is directly contradicted two paragraphs later at paragraph 10 where [Mr Prior] deposes to consider moving to [City RR].
…
14.In relation to paragraph 11, [Mr Prior’s] assertion that he “will be in a strong and stable position to fully provide for [X’s] living costs” are contradicted by the majority of his affidavit detailing his apparent difficulties obtaining employment over 2 years, need to sell his house, and alleged inability to financially support [X’s] education (see paragraphs 7, 8, 12, 23-33 of his affidavit). In relation to the claim [Mr Prior] has “had to” draw “down from capital funds”, I deny this, and say [Mr Prior] has chosen to do so.
15.In relation to paragraphs 12, no evidence has been provided of any of this. I again object to it as purely subjective commentary and opinion.
In his affidavit filed 21 December 2020 the father deposes:-
During 2020 there have been few opportunities. I tried to gain an equity position supporting the purchase of a […] Company with some investors but they failed to secure their expected funding.
Due to the delayed release of the pension funds and subsequent release of my property settlement I have not been able to purchase a business myself, losing 2 further opportunities as a result.
I looked at selling my house at one point but the financial model did not make sense and I also wanted to keep the place that [X] sees as his ‘US Home’ for when he comes to stay.
Whilst I will be able to cover living expenses for [X] when he spends extended time with me, I can no longer meet the high values of monthly support and school fees that were negotiated when I was effectively still being paid and expected to be back in full‑time employment within 6 months.
[Ms Prior] now finds herself in a much stronger financial situation that I do having a regular income, support of a live in partner and his income and much greater financial resources to access.
We cannot have an understanding of the future but had I known how 2019 and 2020 would play out I would have taken a different approach to our agreement. The ongoing welfare and support for [Y] and [X] are paramount but I am nearly 59 years old and do not have the benefit of the resources built up over my lifetime following an expensive divorce and legal fees.
It is a result of this situation that I seek to move to an administrative assessment retrospective to December 1^st 2019. I expected to be working by that time and since then I have paid some $42,000 dollars whilst not earning at all.
On 26 March 2021 the matter came before me for a case management hearing. The application in relation to X spending time with the father in the United States and the child support application was set down for hearing on 7 April 2021, estimated to take 3 days. Times were given for each party to file an amended application and response. The filing date for the wife was 30 March 2021 and the filing date for the father was 1 April 2021.By not later than 6 April 2021 each party, which by that time included the independent children’s lawyer, was to file a case outline and a list of documents relied upon by that party.
On 30 March 2021 the mother filed an Amended Response to Final Orders seeking a dismissal of the father’s child support application and orders in relation to the payment of periodic ($9,639.92) and non-periodic ($21,937.02) child support arrears. In her affidavit filed in support of her Amended Response the mother deposes:-
[The father] has not paid any periodic child support since orders were made in relation to his then arrears in child support in December 2020. At $585.62 per week, he is $9,369.92 in arrears and I seek orders for payment of that amount.
Similarly, [the father’s] approach to making payments for the children’s extracurricular activities, school payments, and other non-periodic payments, has not altered since my December affidavit, or for 5 years for that matter. As outlined in my December affidavit and case outline, this is not a new approach arising from supposed financial difficulties, but has been the approach since day one. He simply refuses to pay, even at times where he was earning over $400,000 per year. Again, since December he has simply refused to pay, ignored requests and information provided to him, or sought to move the goalposts to point to other supposed issues as his reason for non-payment. Since December, he has refused to make any contribution to [X’s extracurricular activities], text books, technology and uniform; and refuses to pay for [Y’s] school commitments, [sport] and medical expenses […]. The total arrears in this area sought in my December application, and still to be determined was $2,466.47. The amount in arrears since is $12,168.80. The total amount outstanding is therefore $14,635.27.
As of April 1, [Y’s] school fees will again be in arrears and I have no confidence [the father] will make these payments as ordered. The amount to pay for [Y’s] school fees to her completion of Year 12 is $7,301.75. I seek an order that these be paid now.

By an Amended Response to a Case Application sealed on 31 March 2021 the father sought, inter alia, that his application filed on December 2020 (in error he referred to 2021) as to child support be heard by the court and the remaining funds $16,535.43 held by DD Lawyers from SS Company be released to him.
Relevantly for child support, in the father’s affidavit affirmed 31 March 2021 the father deposes to having invested in a company with headquarters in the United Kingdom. The father claimed that the company were undergoing registration with a regulatory body with a view to being fully trading and profitable by the end of 2021.
On 1 April 2021 the father filed an amended application for final orders in which he, inter alia, sought that his application filed 21 December 2020 for a variation of child support be heard by the court.
On 6 April 2021 the mother filed a 28 page Case Outline. There was significant repetition of the mother’s Case Outline of 16 December 2020 which is extracted above. Relevantly to child support, her outline read as follows:-
Child Support
92. There are Final Orders in place. The rule in Rice v Asplund operates to prevent a review of Final Orders. The Husband resigned three weeks prior to the scheduled trial of the matter [paragraph 23 of Husband’s affidavit of 16 November 2020 and Annexure A to My December Affidavit]. He executed Final Orders while unemployed. He says he remains unemployed although has apparently invested in a UK company. There has been no change other than that, on the face of it, the Husband is in a better position a when he signed the Final Orders, given he now has an investment opportunity.
93. If the Court does not accept that position, it appears to me that the relevant legislation is in both the Family Law Act and Child Support (Assessment Act) 1989.
94. There appear to be various factors under section 63 and 129 (relating to periodic and non-periodic child support) which the Husband must be able to satisfy the Court of in order for the Court to vary the orders. A significant change to the position that existed when the Final Orders were executed is required. As outlined at paragraph 92 above, there is no such significant change.
95. Otherwise, for the orders to be modified there must be “just cause”, it needs to be “just and equitable” to do so and “proper”. It is contended none of these objectives are fulfilled by the Husband’s application, for reasons as follows:
95.1 It is the Husband’s income earning capacity which is relevant, not the income he chooses, or in this instance, chooses not, to receive. The Husband’s income earning capacity is substantial. His tax statements indicate in 2016 he received USD$382,731. In 2017 he received $USD435,775. In 2018 he received USD$323,263.
95.2 The Husband resigned from his employer, and negotiated a substantial payout, in [late] 2018, three weeks prior to the scheduled trial of the substantive proceeding and three weeks prior to Final Orders (Deed of Termination and Settlement- Annexure A to My December Reply Affidavit). It is contended he did so strategically. He says he has not worked since.
95.3 The Husband deposes in his affidavit of 16 November 2020 that “after my non-competition agreement expired I then spent a few months working with a [financial] company and [an organisation] in [City H] to try and acquire the company I just had just left”. He goes on “In [late] 2019 it became clear that during the year the company had encountered financial difficulties and was no longer of interest to my backers”. No evidence is provided. The Husband effectively deposes to doing nothing to obtain secure, paying employment to ensure he could fulfil his child
95.4 The Husband deposes at paragraph 29 of his affidavit of 16 November 2020 “In February, I took on an interim part-time [senior management] role, supporting a group of investors from Africa and America. The appointment lasted until [mid-2020] as sadly the investors did not have access to the funds they led us to believe they had”. Again, no admissible evidence is provided. Nevertheless, the Husband has again spent 6 months apparently pursuing speculative equity deals. He therefore, between resigning in [late] 2018, and [mid-2020], spent 19 months either doing nothing to obtain employment, or spending his time on speculative, unsupported endeavours with no steady income to enable him to meet his obligations.
95.5 There is a complete absence of evidence before the Court as to the genuine attempts the Husband has made, if any, to obtain regular, steady, paid employment, at any level, and of any kind, since the Final Orders. The Court is provided with anecdotes, sweeping statements, the apparent advice of people “in the know”, commentary and opinion. There is no evidence to support the Husband’s application.
96.      What is known, and actually evidenced, is:
96.1 The Husband received over $1.8million gross (at US tax rates) in salary between September 2015 and October 2018 (based on the Husband’s Trial Affidavit, Tax Returns and Deed of Separation and Termination).
96.2     He received $655,000 pursuant to the property settlement.
96.3 He has at least (and I contend about $100,000 more than) $368,000 in pensions he can access given he is over 55 years of age (his Financial Statement of 16 November 2020)
96.4 His Financial Statements indicate that since August 2018 he has received over $825,000 net, while apparently only reducing his total liabilities by less than $90,000 (comparison of his August 2018 Financial Statement against 16 November 2020 Financial Statement, Deed of Termination, paragraph 1(a) of My Reply Affidavit).
96.5 He has purchased a lavish house in [City H] for three times the value of the average property in that area, and purchased [Motor Vehicle 1] (paragraph 10(d) of My December Reply Affidavit and Annexure E, the Husband’s Financial Statement).
96.6 He has an income earning capacity of at least USD$400,000 based on his tax returns.
96.7 He has, pursuant to his own affidavit material, sought speculative, unpaid positions since resigning on the eve of the trial of this matter; has failed to obtain secure, paid employment, at any level; and failed, potentially intentionally, to exercise his significant income earning capacity at all.
The Husband now contends he should not have to pay for [X’s] education; is in arrears on periodic and non-periodic child support; is in arrears on [Y’s] school fees; and says his periodic payments should be reduced to $0. It is contended this is not “just and equitable”.
97. The Husband does not come before this Court with clean hands. There is a history of the Husband foregoing over $100,000 in salary payments until after court hearings; delaying bonuses until after court hearings; receiving side payments from his employer while claiming not to be taking a salary; claiming money problems before court proceedings and receiving $320,000 days later; concealing shareholdings; failing to provide disclosure or providing misleading disclosure (paragraph 4 of My December Reply Affidavit).
98. Even currently there are very significant issues with the Husband’s financial position as outlined in his Financial Statement (paragraphs 1-3 of My December Reply Affidavit) His Financial Statements between November and December 2020 differ by some $100,000 in cash with no clear evidence of where it came from.
99. Also the Husband has not provided proper disclosure. With respect to his tax documents of 2018, being the year in which he resigned, the Husband has only provided incomplete documents.
100. There should be no change to the Final Orders. It is not “just and equitable” to do so. The legislation requires consideration to be given to the “proper” needs of the child including “the manner in which the child is being, and in which the parents expected the child to be educated or trained”. The legislation requires those needs be prioritised. The Husband at all times knew what child related expenses were coming. He did not act responsibly and put himself in a position to meet his obligations.
Conflicted Position
101.     It is contended the Husband’s position is full of contradictions and conflicts.
102. With respect to coronavirus, for the purpose of the child support matter, he amplifies the apparent impact of it on the economy and his job prospects, but plays down the health implications with respect to the parenting application.
103. With respect to his economic position, he deposes at paragraph 11 of his affidavit of 16 November 2020, to being in a “strong and stable position” when it comes to his parenting application; but then says with respect to child maintenance payments “it is not possible for [X] to attend a fee-paying school” and seeks an administrative assessment having the effect that he pays $0 in child support for two children.
FINANCIAL ORDERS
Periodic and Non-Periodic Child Support
104. There are arrears in periodic child support and non-periodic child support. The Final Orders create those obligations, they have not been complied with.
105. [G School] fees are due as of April 2021. It is submitted the Husband has a history of non-payment. Orders are sought requiring [Y’s] school fees be paid to the completion of her Year 12 by way of lump sum payment now.
The mother’s outline of case was comprehensive but submissions in an outline of case are not admissible as proof of the truth of the matters stated.
On 8 April 2021 the proceedings were adjourned part heard to a date to be fixed. It was set down for 20 July 2021. On 16 July 2021 the parties advised that the continuation would take longer than previously estimated and the defended proceedings were adjourned to a date to be fixed and notified to the parties in writing when a 3 day hearing time becomes available.
The father’s application proceeded before me again on 26 October 2021. Each parent cross examined the other. The mother cross examined the father on 26 and 27 October 2021 for a total of 5 hours and 52 minutes. The father cross-examined the mother on 27 October 2021 for a total of one hour and 27 minutes. Neither were good at asking questions. They were unresponsive witnesses who wanted to quarrel more than they wanted to elucidate issues. There was an exhausting amount of bickering.
The father was cross examined about the nature of his resignation and his unemployment status, as a basis for him asserting a change in circumstances. The father had previously deposed that in early 2020 he was in negotiations to acquire his former company, GG Pty Ltd. In a letter obtained pursuant to subpoena to Mr TT, Joint Chief Executive Officer of GG Pty Ltd it states:-
5. There was no formal approach made by [Mr Prior] or any entity associated with [Mr Prior] to buy or be involved in buying [GG Pty Ltd] or any of its related entities. There have been no material ownership changes in [GG Pty Ltd] since 2007. There have been no formal approaches, dealings or negotiations between [GG Pty Ltd], [Mr Prior] or any entity associated with [Mr Prior] since [mid-2018].
The father agreed that he did not make a formal approach to Mr TT but rather that the negotiations were “informal” in nature. The father gave evidence that the reason the negotiations were unsuccessful was because he was unable to raise sufficient funding. The father claims he was asked to sign a non-disclosure agreement (NDA) in respect to the negotiations.
The father was cross examined on the circumstances surrounding his resignation from GG Pty Ltd, having tendered his letter of resignation in late 2018. The father’s evidence was that he had advised the company of an initial public offering (“IPO”) which is a process that involves a privately owned company becoming a public company. The father’s evidence was that the IPO was considered a failure and that the company lost money supposedly as a result of the father’s advice. The father also made reference to “internal political issues” within the company around the time of his resignation. It appears there was an independent investigation undertaken in approximately mid-2018 into alleged allegations of harassment and bullying by the father of an employee of GG Pty Ltd. A report along with recommendations was published in late 2018 and was marked Exhibit “M8”. The report included multiple accounts of alleged bullying and alleged sexual harassment. According to the report, the father was found to have breached the company’s Anti-discrimination, Harassment and Bullying Policy, specifically the sexual harassment and bullying provisions, noting there was a strong case for termination. I note that the author nor any of the subjects of the report were called to give evidence. The father omitted to make reference to the investigation or allegations in the context of his resignation. My impression is that the father left his employment under a dark cloud. The father could have been more open about the circumstances. He withheld relevant evidence. I am critical of him. However, in the final analysis, this evidence does nothing to enhance my view of the husband’s employability. Indeed, it does the opposite.
The father deposes that he has invested in a specialised business. The father was cross examined in regards to the investment and the likely profitability of the business. The father expected that the business would have be profitable in the later part of 2022. The father conceded he had anticipated that the company would be cash generating sooner but that there was a delay in having the products registered with a regulatory body.
When questioned about his capacity to pay child support the father’s evidence was that he would not be in a position to pay non-periodic child support unless he is employed or until his business investment returns a profit. Further, the father’s evidence was that he could only pay the administrative assessment of child support, whatever that may be. On the father’s characterisation the administrative assessment equates to the “base line” child support payable. If the father’s reference to “base line” is a reference to the minimum rate of child support, child support for a period starting or commencing on or after 1 January 2023 is $493 per year.
The father’s tax return for the year ending 30 June 2018 provided to the court was silent as to the father’s foreign assets and income and was 4 pages in length. There was some dispute as to whether the tax return was produced in its entirety. The father’s evidence was that he produced to the court the version of the 2018 tax return he received from his accountant and that he did not query its contents as he trusts his accountant.
In accordance with the consent orders from October 2018 the father was in receipt of proceeds of sale of the Suburb L property as well as income from the SS Company sites. The father was cross examined about whether the monies had been accounted for in the father’s first financial statement filed 12 December 2020. The father gave evidence that the money was applied towards his legal fees although it was not formally accounted for as liability in his 2018 Financial Statement.
The mother, father and independent children’s lawyer agreed on dates for X to spend time in America and that the mother was to attend to various specified matters to enable travel to occur. I made orders reflecting the agreement. I reserved my decision in relation to child support and excused the parties from attending at court when my judgment was to be handed down.
The parties returned to court on 13 May 2022, 16 August 2022, 22 August 2022, 26 August 2022, 17 October 2022 (judgment delivery), 14 April 2023, 9 May 2023 and 16 June 2023 in relation to X travelling to America.
In mid-2022 X ran away from the mother’s home, at which Y still resides, and into the care of friends of the father.
My interim parenting decision, whereby X was allowed to go to America was delivered on 17 October 2022 and appears with case neutral citation [2022] FedCFamC1F 783. This trip was provided for in the Order of 18 October 2019 but was postponed because of the pandemic due to COVID-19 travel restrictions experienced in Australia and visa processing problems experienced by the United States of America.
X went to the United States in late 2022.
At the hearing on 14 April 2023, the parents agreed that the child support proceedings be re‑opened to update the court on what had transpired since I reserved my decision on 26 October 2021 and for the purpose of the father quantifying in dollar terms what he contended would be an administrative assessment of child support.
On 30 April 2023 the mother made and filed an affidavit in which she deposed that her taxable income for the 2018/2019 financial year was $46,101. She then changed jobs and her provisional taxable income for the 2019/2020 financial year was $79,734 and for the 2020/2021 financial year was $106,122. She then changed jobs again and her provisional taxable income for the 2021/2022 financial year was $110,716 (inflated due to change over of jobs). The mother deposed that her current gross salary is $105,000.
In her affidavit made on 30 April 2023 the mother deposed to the following: –
(a)that in the 28 months since filing his financial statement and application on 21 December 2020, the father “has not made any child support contribution whatsoever for either [Y] or [X], while I have had 100% care of both children for much of that time.”
(b)Pursuant to the Order of 31 October 2018, the periodic child support outstanding since 2020, with respect to X, is $36,289.44 and with respect to Y is $12,513.60 (calculated to 2021 when she turned 18 years of age). The total outstanding for the periodic child support is $48,803.04 not including the CPI adjustment provided for under clause 44 of the order;
(c)As a result of paragraph 1 of the order made 18 December 2020, there is a sum of at least $16,535.43 plus interest held by the father’s former solicitors, DD Lawyers, pending a decision on child support.
X was due to return to Australia in mid-2023. However, X refuses to return. The mother has advised the court that she has made a request for return under the Family Law (Child Abduction) Regulations 1986.
On 13 May 2023 the father affirmed an affidavit in which he deposed that:
1.I make this Affidavit pursuant to Orders made April 14 2023.
2.I can confirm via Services Australia the the (sic) USA is a reciprocating jurisdiction.
3.Child support was paid according to the Orders of October 2018 up until October 2020 in full.
4.Those Orders were agreed and signed on the basis that I expected to be in Full employment within 6 months.
5.Even though my last full time salary was December 31st 2018 I still paid Child support to the amount of $42,000 beyond the point I could have requested an Administrative assessment.
6.Based in The Services Australia website I attach an Annexure marked [MP1] with the calculation for this period based on my salary adjusted to AUD at the average annual rate and adjusted to match the Australian Tax year. It will not permit me to complete an overseas calculation so I have based in in Australian figures and show through Administrative assessment as calculated via the Website is $15,626.
7.The amount that I would have paid during this period through Administrative assessment as calculated via the Website is $15,626.
8.I further seek release of the remaining funds held in [DD Lawyers] trust account.
9.I reference my Financial Statement and Affidavit of 12/20/2020 and Application for Administrative assessment of 12/21/2020.
The affidavit annexed the following table at “[MP1]”:
All Figures in Table 1 in Australian Dollars

Aus Tax Year Ms Prior Earnings Mr Prior Earnings Administrative Child Support Calculator (Annual) Minimum Agreed by Court Orders Date Administrative assessment Requested Paid

2018/19 46,100 ~350,000 N/A $30,000 December 31^st 2019 $45,000

2019/20 79,734 95,328 14,640.00 N/A - $42,000

2020/21 106,122 26,983 493.00 N/A -

2021/22 110,716 27,183 493.00 N/A -
Mr Prior Earnings 2019-2022

US Tax Year Earnings USD Exchange rate Amount in AUD Adjusted to AU Tax Year

2019 128,256 0.70 183,220 2018/19 - ~350,000

2020 5,428 0.73 7,436 2019/20 – 95,328

2021 35,363 0.76 46,530 2020/21 – 26,983

2022 5,407 0.69 7,836 2021/22 – 27,183

By email dated 19 July 2023 my Associate wrote to the parties in the following terms:
CHILD SUPPORT PROCEEDINGS MLC8811/2015
In the course of finalising her decision, it occurred to her Honour that one or both of you may not have realised that you can ask to re-open the evidence in a case for a specific reason, say, to lead evidence or to cross-examine the other party in relation to matters which were not before the court when you were last able to lead evidence or cross-examine. The information about income provided pursuant to her Honour’s Order of 14 April 2023 may qualify as such a matter.
Please advise me if you would like an opportunity to make an application to re-open. There is no guarantee that her Honour will allow the re-opening. However, as a matter of procedural fairness, her Honour has asked me to enquire whether either of you wish to make an application.
I would appreciate a response, copied to the other party, by the end of this week, if possible.
On 21 July 2023 Mr Prior responded:
Thank you for informing me of the opportunity.
I wish to rely on the information previously submitted by
myself and [Ms Prior].
No reply was received from the mother.
On 25 July 2023 my Associate wrote to the parties again:
Dear [Ms Prior],
Please acknowledge receipt of my last email message to you on Wednesday 19 July 2023 which is attached for ease of reference.
If you do not want to re-open the case to cross-examine [Mr Prior], or be cross examined yourself, the matter will be decided on the material currently before the court.
This is without you having an opportunity to, for instance, ask [Mr Prior] questions in cross-examination about the figures he put forward in response to the order of 14 April 2023, or anything else that has transpired since evidence was closed.
If that is so, please simply acknowledge my last communication.
No response has been received from Ms Prior.
I regard the income figures put forward by the father, which appear at paragraph [85] of these reasons, to be unchallenged.
On 10 August 2023 my Associate wrote to the parties:
Her Honour is ready to deliver her decision but first seeks confirmation of when the father’s application filed 21 December 2020 was served on the Child Support Registrar.
I look forward to hearing from you as soon as possible.
By email of 11 August 2023 Mr Prior replied:
My Application was served on the Child Support Registrar on April 8th 2021 and my request was for the Administrative Assessment to be retrospectively applied from December 1^st 2019.
DEPARTURE FROM THE DEPARTURE DETERMINATION ORDER FOR PERIODIC CHILD SUPPORT
Change of circumstances
In Sathra & Sathra, the Full Court referred to the passage from In the Marriage of Bryant (1996) FLC 92-690 at [83,169], namely:
It must however be recognised that once an order has been made departing from an administrative assessment, before there can be a variation of (or “departure” from) that existing order, it must be established to the Court’s satisfaction, that since the making of the existing order circumstances have arisen as a result of which the financial capacity of either party is now significant reduced (s117(2)(a)), or the costs of maintaining the child have been affected (s 117(2)(b)) or the existing order now results in an unjust and inequitable determination of child support (s 117(2)(c)).
Later, the Full Court observed:
[56]We have already referred to the passage from Bryant, at [83,169] recorded in the trial judgment. For the discussion to be complete, reference should also be made to the following remarks made in Bryant at [83,170]:
If the situation was not as we have just proposed in the last two paragraphs, there would be nothing to stop a party who did not accept the terms of a departure order from immediately approaching the Court to have the matter re-heard, or to stop a party who thought better of the agreement which he or she had made, immediately seeking to vary the agreement.
[57]It follows that when dealing with an application to vary or discharge an obligation to pay periodic child support as required by a departure order, the Court must determine at the outset whether, by reason of a change of circumstance, a ground for departure exists. The Court must then determine whether it would be just and equitable, and otherwise proper, to make an order varying the arrangement established by the earlier departure order (Wild v Ballard (1997) FLC 92-771 at [84,492] – [84,493]).
[58]We therefore reject the submission advanced by the father that whether or not he was able to establish a change of circumstances was irrelevant.
In Bryant the trial judge had found that neither party had given a clear picture of his or her financial situation to an extent that “he was unable to form a precise view of the father’s income and emoluments.” In Bryant the father sought to rely on changes in the wife’s situation as relevant to a change of circumstances including that the mother has obtained employment, moved with the children to live with the maternal grandmother and placed the children in less expensive schools. In Bryant the father’s case failed because, the primary judge was not convinced that it would be just and equitable to depart from the previous order once regard was had to the father’s assets and financial resources
Here, the mother submits that “[t]here has been no substantial change [in circumstances]. The Husband resigned three weeks prior to the scheduled trial of the matter [paragraph 23 of Husband’s affidavit of 16 November 2020 and Annexure A to My Reply Affidavit]. He executed Final Orders while unemployed. He says he remains unemployed. There has been no change.” I find that the father did not resign his employment of his own volition. He was given notice that his employment would be terminated because he had engaged in unprofessional conduct. The fact that the father’s dismissal from his employment occurred prior to the departure determination order being made does not disqualify the consequent diminution in his income and his income earning capacity from being a change in circumstance. When the departure determination order was made on 31 October 2018 both parties were aware that the father had lost his job. I am satisfied that there was a change in the husband’s income and income earning capacity when his termination and holiday pay entitlements were exhausted and his income ceased, being the end of April 2019. The fact that the father did not immediately file an application to vary the departure determination order is supportive of the fact that he expected to obtain employment and that the change in circumstances was not strategic on his part (as the mother asserts).
It is not simply that the father’s employment came to an end, but that he has been unable to find alternative employment at a rate that could support the child support liability to which he had agreed that demonstrates his circumstances have changed. That is, since the departure determination order was made it had become apparent that the father no longer had the earning capacity that he had at the time that the departure determination order was made. I am comfortably satisfied that by the date upon which he filed his application, 21 December 2020, the father was not in receipt of income, his income earning capacity had well and truly evaporated and that he was not employable in anything like his previous position with GG Pty Ltd. The diminution in his income and income earning capacity constitutes a change in circumstances.
Special circumstances
The second step in the determination of a departure application in relation to periodic child support is to establish special circumstances within the meaning of s 117. Section 117(2) sets out four general grounds of departure. The special circumstance(s) relied upon must relate to the ground of departure under consideration.
The special circumstance which the father contends apply in this case pertain to the income earning capacity or financial resources of the paying parent. Insofar as the mother submits that the father’s loss of employment was “strategic”, I reject that submission. I have mentioned earlier that there is absolutely no trust or goodwill between the parents and, accordingly, it is unrealistic to assume that one parent will believe anything that the other parent says. However, there is hard evidence which refutes the mother’s assertion that the father’s unemployment was engineered, concocted or strategic. The files from GG Pty Ltd put beyond doubt that the father’s termination of employment was not a matter of his own doing or to his advantage.
As at the date of the departure determination order the father says that he had an expectation of obtaining employment within six months. At [32(c)] above I have referred to the father’s earlier affidavit material in which he deposed that he did not expect to be able to obtain alternative employment for a remuneration of $430,000+. However, that was in the context of the father saying that he did not think that he could be employed in Australia for that remuneration and in the context of having to stay in Australia to care for X if he succeeded in having X live with him (which he did not). I am satisfied that as at 5 October 2018 the father was not contemplating any cessation of his employment in the foreseeable future let alone on in late 2018 when he was told that he was required to leave his employment.
I accept the father’s evidence that he anticipated or at least hoped that he could be employed on good remuneration within 6 or so months.
There was an appreciable time between the making of the Order of 31 October 2018 and the father signalling the relief he would seek, on 16 October 2020 and 17 November 2020, and then making the application on 21 December 2020.
The mother contends that the fact that the father received monies by way of alteration of property interests following the order provided him with reserves from which he could meet his liability for periodic support. The mother asserts that the father received $650,000 which appears not to be denied. It appears that what monies were put into the acquisition of his home subject to a mortgage. He would have anticipated that he would receive at least that sum or more having regard to the monies that were held back to secure his performance of certain other obligations. It is not unreasonable that the father bought a residence in which to live.
The mother submits that the father retained an income earning capacity which he failed to exercise. However, she does not quantify that income earning capacity and nor was the father cross-examined on that issue. The position of a senior manager is a difficult position to market. I accept that the attractiveness of the husband as an applicant for a position of senior manager or a like role might be diminished by him taking a low paid position to make ends meet. Within the industry, ‘gardening leave’ or an appreciable break between employment in senior management positions is common place. The father deposed to efforts to obtain employment in 2019 onwards and then to reconciling himself to the fact that he would not obtain any employment at his previous level and should, instead, look for a business in which to invest. The father’s evidence in this regard was not successfully impugned by the mother in cross‑examination.
I am satisfied that failure to take into account the father’s reduced income earning capacity coupled with his reduced income of $95,328 in 2019/20, $26,983 in 2020/21 and $27,183 in 2021/22, would result in an injustice or undue hardship to him. This is particularly so because the mother’s income increased during those years (see [81] above). From $46,100 in 2018/19, to $79,734 in 2019/20 to $106,122 in 2020/21 to $110,716 in 2021/22. The mother asserted that the increases in her income were partly due to extra payments on changes of employment. Notably, the mother was given two opportunities to seek to cross examine the father on the income figures which he provided (see [86] and [89] above) but the mother did not avail herself of either opportunity.
The obligation of a parent to exercise income earning capacity or apply financial resources is high in relation to child support. The payer parent cannot diminish or relinquish his income for the major purpose of bringing about a reduction of that parent’s liability to pay child support. In this case, the delay between the loss of employment (late 2018), the loss of income (April 2019) and the application being signalled (October and November 2020) and the application being made (December 2020) tells against the probability that the father was acting in a way to defeat his obligations to pay child support. If it was a strategy, as the mother asserts, I am satisfied that the father would have strategized more quickly than waiting for in excess of two years to pass before making the departure application now under consideration.
Section 117(7B) of the Assessment Act provides that:-
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)the parent's caring responsibilities; or
(ii)the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
The father’s circumstances do not fall within s 117(7B).
I am satisfied that it was not the father’s choice to leave his employment and there was no concession obtained in cross-examination of the father by the wife to the effect that he has not done all that he could to regain an income. I do not accept the mother’s criticism of the father engaging in “unpaid” employment. In the context of seeking employment, the father was trying his hand in a new area, working to ascertain whether he would be suitable senior manager material in that area. It is not unexpected or unusual. I do not find, as the mother asserts, that the father was avoiding income. Indeed, by trying his hand he was seeking to attract remunerative employment. Notably, from 2020 the father was seeking employment when the United States was in the grips of the COVID-19 pandemic.
I do not accept the mother’s contention that the father’s “current position is an extension of a long-held intention not to pay” (see [57] above). I am satisfied that the husband has genuinely fallen on hard times. His robust personality and pride have likely meant that his disappointment is not conveyed whilst giving evidence in this case, particularly, in the presence of the mother given the high level of enmity between them.
The mother submits that the husband received some $655,000 by way of property settlement with which he then “purchased a lavish house in [City H] for three times the value of the average property in that area, and purchased [Motor Vehicle 1]”. However, the mother obtained no concession from the father, nor led any independent evidence, that the house was extravagant or disproportionate to the father’s needs. There is no expert evidence to support the mother’s claims of comparable values or lack thereof. I can have regard to the equity held by the father in property rather than gross value and I do so. The father is entitled to have somewhere to live.
Finally, the mother’s submissions that the father’s historical income tax returns demonstrate “an income earning capacity of at least USD$400,000 based on his tax returns” (see [64] above), is clearly incorrect. The father’s tax returns were for the period between September 2015 and October 2018 and predated his loss of employment. The father’s tax returns are evidence of the income received and declarable in the United States of America for the period to which they relate but are not a sound basis for an extrapolation of his income after he lost his employment.
I am satisfied that the fact that the husband’s income earning capacity at a high level had effectively disappeared at least by 2020, is sufficient to ground a special circumstance within the meaning of s 117(2) of the Assessment Act.
I am satisfied that the father has made out a special circumstance within the meaning of s 117(2)(a).
Just and equitable
In determining whether it would be just and equitable as regards the child, the mother and the father to grant a departure from the departure determination order I take into account the following:-
(a)The parents have the primary duty to maintain the children. That duty is not lower than the priority of the duty to maintain any other child or any other person. Until X went to the United States in late 2022, the father was only maintaining himself. There was no evidence that the father was living extravagantly or beyond his means.
(b)The proper needs of X and Y are not in issue. It was not contended that periodic child support exceeds the children’s proper needs.
(c)There is no evidence to suggest that the children, or either of them, have income, earning capacity, property or financial resources which ought to be taken into account.
(d)The father’s income is now negligible and he was not cross examined to any effect on this issue. The most recent financial statement filed by him on 15 November 2020 discloses his expenses were $3,172 including $576 per week child support which he is not paying. He had property of $1,046,000 and liabilities of $922,000 resulting in a net equity of about $125,000. He had superannuation of $368,000. The mother’s most recent financial statement filed by her on 14 December 2020 discloses income of $1,512 per week as an educator on a contract at D Organisation whilst on temporary leave from teaching at PP Organisation. Her expenses were $2,330 and liabilities were $868,397. She had property of $51,487 and superannuation of $473,433. In her earlier financial statement the mother’s property was deposed to at $900,196 and her liabilities at $165,000. It appears that the mother has put approximately $400,000 from her alteration of property interests into superannuation.
(e)The father submitted, early in this application, that the mother was not fully exercising her income earning capacity. The mother’s income has increased significantly during the proceedings. I reiterate that there was no attempt by the mother to quantify the father’s income earning capacity and there is no basis upon which I can do so.
(f)It was not put that either parent has anyone other than the children and themselves to maintain. The father deposes to continue to pay child support after his employment was terminated (effective 1 December 2018) and after his holiday and redundancy payments (end April 2019). In the mother’s financial statement filed 1 August 2018 the mother deposes, at Item 13, to having received an average weekly payment for the last six month period of E$416 per week with no payment having been made since 11 October 2020.

With one proviso, I am satisfied that the relief sought by the father should operate retrospectively to 1 December 2019 which is one year after his employment ceased and eight months after he was notionally paid his previous remuneration having regard to holiday pay and severance pay. The husband’s liability for periodic child support alone was $14,976 per annum per child or approximately $30,000 per year combined before payment of all the non‑periodic child support expenses. Y turned 18 years old in 2021. The mother did not challenge the father’s income figures at [85] above which were $95,328 in 2019/20 and $26,983 in 2020/21. It is appropriate that periodic child support be administratively assessed from 1 December 2019. The proviso is that, if the application of the child support formula results in an overpayment to the mother that overpayment is not to give rise to an obligation on the mother to reimburse the overpayment to the father. This is because the father was fairly slow in making this application but the mother continued to incur, and pay, child related expenses with whatever funds she had at her disposal. It does not behove the father now to claim back money that was expended by the mother when this application was not on foot.
Then there is the $16,535.43 or thereabouts held by the father’s former solicitors. These are the husband’s funds under the property settlement order which I ordered be held until the outcome of this application. Both parents seek that those monies be paid to them. I understand that the payments which I ordered be made on 18 December 2020 cleared arrears of non-periodic child support but not all of the arrears of periodic child support. If application of the child support formula from 1 December 2019 results in no arrears, the monies held by the father’s former solicitors can be paid to the father. Conversely, if an administrative assessment from 1 December 2019 produces arrears (which I suspect is unlikely) the funds can be applied in payment of the arrears with the father to receive the balance (if any).
The figures set out in paragraph [85] above were not challenged. They are comprehensive. They can stand as the adjusted taxable income for the father for the child support periods after 1 December 2019. The mother’s adjusted taxable income will be taken by Services Australia Child Support Agency from her taxation returns.
Otherwise proper
In deciding whether it would be “otherwise proper” to make a departure from the departure determination order I must consider the effect of granting the father’s application on any income tested pension, allowance or benefit that the children or the mother is entitled to receive. I was not addressed on this point and there is no evidence that granting the father’s departure application will give rise to eligibility for income tested pension or benefits to be paid to the mother or either of the children.
Conclusion on departure from departure determination order of 31 October 2018 for payment of periodic support
The father’s application to depart from his liability for periodic child support will be granted with retrospective effect to 1 December 2019.
DEPARTURE FROM THE ORDER FOR NON-PERIODIC CHILD SUPPORT
I refer to and repeat the reasoning set out above in relation to the departure determination for non-periodic child support in relation to the change of circumstances and special circumstances and that the proposed order is “proper”.
I repeat the above reasoning as to whether the relief sought is just and equitable with a similar proviso in relation to school fees.
X did not attend EE School so the father did not have an outlay in that regard.
Y continued at G School. My understanding is that Y’s school tuition expenses have now been paid in full, in part by monies distributed under my Order made on 18 December 2020. Notably, in the mother’s affidavit of 30 April 2023, the mother deposed to arrears of periodic child support but did not refer to arrears of non-periodic support or, in particular, arrears of Y’s school fees [see paragraph [82] above]. However, if I am wrong and there are tuition fees still owing to the school, the funds held by the father’s solicitors, can be applied to cover any balance of Y’s fees still outstanding by the father and unpaid to the school. The $16,535.43 plus interest is not to reimburse the mother for expenses she may have paid to the school or on account of Y’s education, just monies still owing to the school (if any) for tuition fees. The father’s responsibility for Y’s school fees (tuition expenses) should continue until the end of her career at G School and not just until 1 December 2019. It was not contemplated that the mother would pay tuition fees at G School. The father did not insist that Y be withdrawn from the school. Having regard to the late stage in her education and her ill health, Y’s school fees were to be prioritised.
Conclusion on departure from order of 31 October 2018 for payment of non-periodic support
The father’s application for a departure from the determination order, save for school fees for Y, will be granted with effect from 1 December 2020.
The father’s application for a departure from the determination order in relation to school fees for Y, will be granted as and from the date she finished G School.
The father is similarly relieved from payment of health insurance, incidental expenses and other expenses due for the children, or one of them, under the departure determination order as and from 1 December 2019.
CONCLUSION
In this case the father lost his job, did not obtain other employment on an ongoing basis and he cannot pay the child support to which he previously agreed and thought that he would be able to cover into the future. The father let two years elapse between assuming the liability (on 31 October 2018) and making his application on 21 December 2020 seeking orders retrospective to 1 December 2019. He did not move hastily. That doesn’t lessen his claim. Rather, it indicates that has not acted strategically as the mother alleges.
Since the father assumed the liability to pay child support, the now only dependent child, X, has moved from the mother’s care (1 August 2022) and into the father’s care (late 2022). Neither parent makes a child support application to this court in relation to the mother as a paying parent and the father as a carer entitled to child support.
I conclude that the father is entitled to the relief he seeks in relation to periodic child support. That is retrospective relief from 1 December 2019. If that means there has been an overpayment by him, having regard to an administrative assessment of child support being struck for the child support periods after 1 December 2019, it is not appropriate to require that money to be refunded to him by the mother who would have spent it on supporting the children. If an administrative assessment of child support being struck from 1 December 2019, means that the father is in arrears, those arrears can be satisfied from the monies held in trust by his former solicitors. If there are no arrears, the husband can be entitled to the monies held in trust.
I hope these reasons make clear how the order I make is to operate. If the parents, or either of them, encounter difficulty with implementation of this Order either directly or through Services Australia Child Support Agency, they have liberty to apply to me for clarification. That is not an opportunity to re-argue or re-agitate his or her case but to implement the decision to which I have come.
For the above reasons, I make the orders set out.

I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 29 August 2023

File number(s):	MLC 8811 of 2015
Judgment of:	BENNETT J
Date of judgment:	29 August 2023
Catchwords:	FAMILY LAW - CHILD SUPPORT- where a departure determination order was by consent for the payment of periodic and non-periodic child support- where liable parent makes application for a discharge from departure determination of child support. FAMILY LAW - CHILD SUPPORT - departure application four step approach being change of circumstances; special circumstances, just and equitable; otherwise proper – where liable parent lost their job before departure determination order was made but then ceased to receive income – where no evidence of income earning capacity to support child support liability - where liable parent’s loss of income qualifies as a change in circumstances. FAMILY LAW - CHILD SUPPORT where liable parent’s application to depart from their liability for periodic and non-periodic child support is granted with retrospective effect to 1 December 2020 save that any overpayment created by an administrative assessment of child support be forgiven by increasing the amount of child support payable in that period by the amount of the overpayment created. FAMILY LAW - PRACTICE & PROCEDURE – where liberty is reserved to the parties to apply in relation to implementation of this order on written notice to the other.
Legislation:	Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 118 & 129 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited:	Hampson v Lightfoot [1996] FamCA 8; (1997) FLC 92-775 In the Marriage of Savery [1990] FamCA 30; (1990) 99 FLR 346 In the Marriage of Sheahan [1993] FamCA 21; (1993) 113 FLR 429 Sathra v Sathra [2013] FamCAFC 142
Division:	Division 1 First Instance
Number of paragraphs:	133
Date of hearing:	26, 27 and 28 October 2021
Place:	Melbourne (Via MS Teams)
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Thistleton
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

Table of Corrections
19 December 2023	On cover sheet, “26 & 27 October 2021” replaced with “26, 27 and 28 October 2021” as dates of hearing

MLC 8811 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PRIOR Applicant
AND:	MS PRIOR Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	29 AUGUST 2023

Aus Tax Year	Ms Prior Earnings	Mr Prior Earnings	Administrative Child Support Calculator (Annual)	Minimum Agreed by Court Orders	Date Administrative assessment Requested	Paid
2018/19	46,100	~350,000	N/A	$30,000	December 31^st 2019	$45,000
2019/20	79,734	95,328	14,640.00	N/A	-	$42,000
2020/21	106,122	26,983	493.00	N/A	-
2021/22	110,716	27,183	493.00	N/A	-

US Tax Year	Earnings USD	Exchange rate	Amount in AUD	Adjusted to AU Tax Year
2019	128,256	0.70	183,220	2018/19 - ~350,000
2020	5,428	0.73	7,436	2019/20 – 95,328
2021	35,363	0.76	46,530	2020/21 – 26,983
2022	5,407	0.69	7,836	2021/22 – 27,183