R and R - [2003] FMCAfam 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2003] FMCAfam 276

CHILD SUPPORT – Income only capacity – Husband found to have income earning capacity and financial resources despite being recipient of a disability support pension – application for departure – whether lump sum should be ordered.

Child Support (Assessment) Act 1989, ss.114, 117, 124, 128

Dwyer v McGuire (1993) FLC 92-420
Gyselman & Gyselman (1992) FLC 92-279
Prpic v Prpic (1995) FLC 92-574

Applicant:

M R

Respondent:

M R

File No:

CAM 2368 of 2002

Delivered on:

18 July 2003

Delivered at:

Canberra

Hearing Date:

4 October 2002

Date of last submission:

30 October 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms M Burgess

Solicitors for the Respondent:

Legal Aid Office ACT

ORDERS

The Application filed 28 March 2002 be dismissed.
That the Child Support Assessment in relation to J R born 4 January 1990 and T R born 2 October 1992 be departed from such that the father shall pay the sum of $39,000 by way of lump sum child support to the mother being $13,000 per annum for the period 6 September 2000 to 6 September 2003 in lieu of assessments made by the Child Support Agency for that period..
On and from 7 September 2003 the amount of child maintenance payable shall be administratively determined by the Child Support Agency.
That the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in orders 2 and 3 hereof.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 2368 of 2002

M R

Applicant

And

M R

Respondent

REASONS FOR JUDGMENT

Background

In this application M R (the Applicant) seeks a departure order pursuant to Division 4 of the Child Support (Assessment) Act 1989 (the CSA Act) from a decision made by the Child Support Agency (the CSA) on 18 December 2001. The application is opposed by M R (the Respondent).
Initially there was some confusion concerning the application sought to be relied upon by the Applicant and ultimately it was agreed that a copy of the application would be provided to the Court and relied upon by the Applicant and dated 28 March 2002.
On 29 August 2002 the Respondent lodged what has been described as a counter application for a departure order pursuant to s.114 of the CSA Act and for a lump sum payment pursuant to s.124 of that Act. The decision by the CSA made on 18 December 2001 which is the subject of the departure application by the Applicant involved a decision to increase the rate of child support payable by the Applicant for the financial years 2001/2002 and 2002/2003 from the minimum rate payable to $8,000 for the period 12 December 2001 to 31 March 2003. According to that decision it was to have the effect of increasing the amount of child support payable and results in a periodic liability of $666.67 per month. In making its decision the CSA took into account an inheritance received of $54,000 by the Applicant. The CSA otherwise considered the income of the Applicant and financial circumstances in reaching the decision to make the assessment that the Applicant should pay the annual rate of $8,000.
In his application the Applicant claims the following:
“1.To stop child support agency’s decision to pay maintenance of $666.67 which is for more than my DS pension.
2.To make a stay order for payment.”
In the Respondent’s counter application she seeks the following orders:
“1.That the child support assessment in relation to J R born

4 January 1990 and T R born 2 October 1992 be departed from such that the father pay the sum of $200,000 by way of lump sum child support for the mother, such amount being equivalent to the maximum rate of child support payable for two children until the eldest child reaches 18 with the maximum rate payable for one child until the youngest child turns 18 and;
2.That the father within 3 months of the order pay to the mother or the mother’s nominee the costs of and incidental to this application.”
By way of background it is noted that the parties married on

30 November 1974. There are two children of the marriage namely J R born 4 January 1990 and T R born 2 October 1992. The parties separated on 9 April 1993. Since the date of separation the Applicant has received a disability support pension and the Respondent a sole parent pension. Neither party has a history of full time employment. Since the parties separated the Applicant had paid the minimum assessment.

Reasoning and findings

The Applicant in this application was not represented. The Respondent was represented by Ms Burgess. After hearing evidence and some preliminary submissions it was decided to allow the Respondent to file and serve submissions in writing. The submissions were filed by the Respondent on 18 October 2002. In the circumstances this course was deemed to be appropriate so that the unrepresented Applicant would then have an opportunity to assess and understand the issues involved in what is some times described as technical legislation. Hence the Applicant pursuant to directions filed and served written submissions on 31 October 2002.
It is clear from the written submissions of the Applicant that he was not conscious of the distinction to be made between asserting matters of fact and making submissions on the evidence which had been provided to the Court including of course affidavit material to which I shall refer presently. To the extent that the written submissions of the Applicant raise matters of alleged fact, I will disregard those submissions save where the facts alleged have been the subject of evidence before the Court tested by way of cross-examination or otherwise the subject of affidavit evidence. The submissions from the Applicant also involve reference to matters that are not relevant including biblical reference and other assertions which again are not necessary to recite in this judgment and are not relevant. The written submissions had attached to them documents purportedly written by the children of the marriage presumably at the request of the Applicant. That material has not been taken into account in considering this application as it is inappropriate to do so as the documents are irrelevant and should not be presented to the Court in this manner. It is unfortunate that the children have indeed been requested to write correspondence for this purpose.
The Applicant in his written submissions complains about orders being made that his mother who gave evidence in the application should remain out of court until called upon to give her evidence. He asserted that the Respondent had not been required to wait outside court and that this as I understand appeared to the Applicant to be unfair. He further made a complaint that he was not allowed to ask a question as he was in the witness box “being a witness”.
It should be noted that the Applicant when giving evidence adopted the contents of affidavits sworn by him on 28 March 2002, 27 May 2002, 19 August 2002 and 27 September 2002. In addition he adopted and relied upon a financial statement sworn 7 May 2002. Before allowing any cross examination the Applicant was asked whether he wanted to say anything further in addition to the affidavit material and financial statement. He declined to do so. At the end of his cross examination the Applicant was again asked whether there was anything further he wished to add arising out of the cross examination and indeed added further evidence.
The Applicant then called M R, his mother, to give evidence. She was assisted by an interpreter and had not sworn any detailed affidavit material. Contrary to the assertion by the Applicant he in fact was able to ask questions of his mother through the interpreter. At the end of the cross examination of the Applicant’s mother the Applicant was permitted to ask further questions by way of re-examination.
The Respondent gave evidence and relied upon an affidavit sworn by her on 17 May 2002 and a financial statement sworn the same day. She was cross-examined by the Applicant.
Accordingly I am satisfied there has been no denial of procedural fairness in the manner in which the application has proceeded. The Applicant was given at all times an appropriate opportunity to present evidence and ask questions and in addition was given the opportunity to carefully reflect upon submissions he would like to make in the matter.
Essentially the Applicant has claimed that the revised assessment issued by the CSA should effectively be stayed permanently and that the child support liability should be nil. The Applicant claims to have no ownership in any property or financial resources and that the inheritance which had been relied upon by the CSA should not be regarded as income or a financial resource as it is claimed this was a repayment to him for a sum of $40,000 which he had previously loaned to his brother.
The background circumstances which led to the application being made by the Respondent to the CSA on 9 November 1991 include a belief by her that the Applicant had been engaged in house building in the satellite town of J NSW.
The Applicant had been a joint tenant with his mother and father in the purchase of a property at C (the C property). This purchase occurred in joint names in 1972. In 1975 the three owners transferred ownership of that home from themselves as joint tenants to themselves as tenants in common (Exhibit W11). The Applicant had denied all knowledge that his name was on the title of the C property. In any event it is noted that at some further point in time the C property was transferred again and on that occasion solely in the name of the Applicant’s father. The Applicant claims that he was never paid anything for that transfer. It is not necessary for the Court to explore further the ownership of the

C property as the Respondent quite properly concedes that given the age of the Applicant at the time of the purchase, that is 22 years of age and that he was 25 when it was transferred, it is more likely than not that this was a property under the control of the Applicant’s father and should be treated as having belonged to the father.
There is no dispute and it is conceded by the Applicant that he did participate in real estate transactions involving the purchase of a block of land in P Place J on 28 May 1999 for the sum of $58,000 (the

P property). He concedes that he told the bank that he and his mother were the owner/builders and ultimately indeed a house was constructed on that land. The house was sold on 6 September 2000 for the sum of $355,000. It was subject to a mortgage of $30,000 which had been entered into directly by the Applicant and his mother in December 1999. Subsequently upon the sale of that house in September 2000 the sum of $144,867.00 was deposited into the Applicant’s St George Bank account on 7 September 2000. This was recorded in bank statements which became exhibit W7.
The Applicant conceded that he was involved in a further purchase of a block of land at W in J (the W property) for $106,000 on 18 September 2000. A $45,000 mortgage was provided by St George Bank to the Applicant and his mother in June 2001. It is not in dispute that the Applicant and the mother were the builders on that block of land and according to the Applicant’s bank statements during September 2000 there were a series of ten withdrawals from his account totalling $144,757.00. It had been submitted by the Respondent that that money was at least in part used for the purchase of W property. I accept that submission. On 21 December 2001 the W property was sold for $487,500 and the next day there was a deposit made into the Applicant’s St George bank account of $192,823.00.
Continuing their property dealings the Applicant and his mother purchased a home at W Crescent G in the ACT on 14 February 2002 (the G property). The G property at the time of the hearing has been placed on the market and the asking price is $458,000. An extract from a website advertisement provided by way of exhibit W8 provides a photo of the property which is a substantial four bedroom home overlooking P H W. The home has two ensuites, rumpus room, three car garaging, ducted heating, ducted gas and ducted vacuuming with large entertaining and barbecue areas. A photograph of one of the interior rooms shows that it has been finished to a high standard and could properly be regarded as a luxurious dwelling. I should also add for the sake completeness that photographs were tendered in evidence of the W property (Exhibit W9) which again shows a substantial dwelling.
It has been submitted and I accept that the Applicant effectively worked as Project Manager in constructing the two houses at J. It was submitted and I find that items were purchased for both houses in relation to construction expenses from the Applicant’s visa card and significantly the visa card statements (Exhibit W5) confirm that significant amounts were devoted to items for the building of both houses. It was submitted and I accept that a proper analysis of the figures reveals that there was an increase to the Applicant’s mother of assets of $185,000 in April 1999 upon the sale of the home in C to $455,000 by August 2002.
It is clear from the history that the Applicant and his mother have been joint tenants in three properties, the P property, the W property and the G property. He had also previously been a joint tenant with his mother and father in the original purchase of the C property.
On any analysis of the evidence concerning the properties which have been described earlier in this judgment, it is clear that at least since 1999 properties have been purchased for investment purposes. Although claiming to be owner builders of the P and W properties, neither the Applicant nor his mother resided at those properties and on the evidence it is clear that for a considerable period of time the Applicant has occupied government housing provided by the ACT Government. I find that the G property is an investment property which had been placed on the market shortly after acquisition. Although the evidence clearly indicates that the Applicant has as his only source of income a disability support pension and had moved from government accommodation to his mother’s residence, it is clear from an analysis of the bank statements and the property transactions including visa statements that the Applicant has actively engaged in property investment and has done so profitably and successfully over the past 4 or 5 years.
It is noted that in his affidavit sworn 27 September 2002 the Applicant states the following:
“Respondent claims in Form 63 that I have purchased three real estate properties. This is not true either sir/madam! My mother has purchased this three properties, not me! I was a tannent of Act housing until March 2002 and I simply didn’t have any money for such things. The Respondent claims that P P house was sold for $297,000. This is incorrect. It was sold for $355,000 out of which home loan was paid back, my late brother $9,999 and contractors for their jobs. The second house on W L was sold for $487,500 out of that a home loan was paid back, $7,500 to S S for loan he geve and again the contractors and material to finish the house. To finish this house Richard Luten estate agent was asked to release deposit of the buyer $48,000 so the house could be finished. I enclose that statement. House in Gordon was both with what was left, namely $189,000, plus $17,000 from what my late brother left me in his Will, plus $25,000 home loan.”
The Applicant maintained the position referred to in his affidavit in submissions before the Court and essentially dismissed assertions to the contrary as being speculation.
In his financial statement apart from referring to income from the disability support pension amounting to $202.00 per week the Applicant otherwise in the section dealing with assets states in relation to the current value of the home, “I don’t have one”. He refers to having $2.00 in the St George bank and discloses the ownership of a Holden Commodore vehicle valued at $26,000 together with furniture and household effects amounting to $10,000. The total of his assets is disclosed as being $36,002. When asked questions in cross examination about the financial statement not disclosing the name, age, relationship to the Applicant and gross income of each other occupant of his home he stated that whilst he lives with his mother at the

G property it is “her home”. He took the question in the financial statement to refer to a home owned by him rather than simply a home occupied by him.
The Applicant in his financial statement refers to the value of the Commodore vehicle being $26,000 and makes no reference to any amount owing on that vehicle or that it was jointly owned. In his response form for changing child support assessment in special circumstances dated 27 November 2001 the Applicant refers to the Commodore vehicle and states, “Owned with mother but in my name” and refers to the estimated current value of $8,800 and adds a comment, “my share”. The Applicant agreed that the value of the Commodore in that form did not reflect its current value and was otherwise vague in relation to the valuation and ownership. I am satisfied that in the circumstances the Applicant has deliberately undervalued the Commodore when he set out details of that as part of the assets to be submitted to the CSA.
During the course of his evidence the Applicant was also referred to the fact that there is no reference in his financial statement to a mortgage to the National Australia Bank (the NAB). A copy of the mortgage to the NAB was received in evidence (Exhibit W2). Having conceded that his name is on the title for the G property the Applicant was then asked why he did not reveal that in the form filed with the Court or indeed why he did not refer to the NAB loan. It is clear from the mortgage document (Exhibit W2) that the Applicant is a joint Applicant for a $25,000 loan. The G property is described in the application as being the property offered as security. When asked further questions concerning his failure to disclose the information on his financial statement including reference to the mortgage the Applicant gave the following evidence,
“ … Your Honour, I have a mortgage with my mother for 25,000 simply because she would not get a loan, especially from NAB. The second one is, my name is also on the title with my mum because she wouldn’t get the loan if the house was only in her name alone. Again, my mum, $17,000 to buy a house as she was short, but as a result I not paying rent and I couldn’t afford to pay any fees for transfer of the house when she dies. At least this way my loan is on the loan and the title, and no other reason. Under 3, I have no interest or percentage in the house for as long as she lives, or she is alive. Four, because I have this agreement with my mother, I got off ACT house and rental, and off rental rebate system, and I said that should count for something, but I was a tenant of ACT Housing until March this year. And 5,

I truly have no reason to support – that is not relevant at this time.” (Transcript p.38)
It is clear to the Court that the Applicant has endeavoured through the filing of an inaccurate financial statement and answers to numerous questions put to him about his financial circumstances to avoid disclosing the real financial situation. I am satisfied that he is at least a joint owner of the Gordon property and that the extent of his ownership is more than simply a nominal reference to him on the title.
Further evidence of the Applicant’s evasiveness and unreliability in relation to his financial circumstances was revealed in answers to questions concerning his visa card. The following exchange is an example of that evasiveness. The Applicant after conceding that his income is around $800 per month was asked the following questions,
“Mr R, if I was to suggest to you, well, I will suggest to you that there was a period from October 2001 right through to March 2002 when your monthly payments on your visa card were more than your income. Could you tell this Court how you made those payments? --- Which payments are you talking about, I am sorry?
To your visa card? --- How – Ms Burgess, I don’t know how I made them but a lot of times my parents had to jump into the equation, otherwise I wouldn’t be able to have made them.
But, Mr R, your mother, that’s your only surviving parent, isn’t it ---Mm.
Your mother’s on an old age pension isn’t she? --- Yes.
She earns about the same as you? --- Yes.
The Visa Classic account. Is that right? --- I think so, yes.
Mr R, on 19 October 2001 you paid $1831 off that account. Where did that money come from? --- Don’t ask me, I wouldn’t know.”

Following that series of questions and further analysis of the Applicant’s visa account and other expenditure revealed further evasive answers. He was unable to satisfactorily explain the disparity between visa payments and his low income.
It was submitted on behalf of the Respondent that the Court should dismiss the Application of the Applicant. It was noted that the assessment by the CSA whilst relying upon financial resources available as a result of the Applicant’s inheritance from his brother did not take into account the Applicant’s real estate interest. It was submitted by the Respondent that the Court should be inclined to reject the suggestion by the Applicant that he has no ownership in any property or financial resources or that the inheritance from his brother should not be included as income or financial resource. The Court should not accept in the absence of other corroborative evidence the suggestion by the Applicant that the inheritance was a repayment to him for money previously loaned by him to his brother. There are no details in relation to that issue and no evidence to explain why the repayment was half the amount of the alleged loan.
Based upon the findings that I have already made in relation to property which in essence I was urged to make by the Respondent including the involvement of the Applicant as a Project Manager, the Court should conclude that monies paid into the Applicant’s accounts represented his share of the sale of real estate. I have already made that finding and I have also found that the Applicant worked as Project Manager on each of the two houses in J.
I conclude that the Applicant has had funds available to him beyond the disability support pension. I am prepared to find that the funds may be available by either drawing on his share of real estate money or other sources perhaps not revealed to the Court. On any analysis of the expenditure including the visa card it is difficult to reach any conclusion other than the fact that the Applicant does not rely solely upon his disability support pension.
It was submitted, correctly, that in the event that the evidence of the Applicant and his mother were to be accepted concerning the

G property that this would at least constitute an equitable interest.

I reject the suggestion that the funds being in part proceeds of the sale of investment properties which were lodged in the Applicant’s accounts were designed to prevent any difficulties with the Centrelink pension of the Applicant’s mother.
In the context of my findings and principally that the expenditure of the Applicant and proceeds of the property sale indicate not only income over and above his disability support pension but also financial resources, it is submitted that the Applicant has behaved as an equal owner of the two investment properties and the G property. Roughly 50% of the P property had been deposited into the Applicant’s account and upon the sale of the W property a further amount of approximately 50% was deposited into the Applicant’s account. The Applicant should therefore be treated as having at least a 50% interest in the value of the G property less any original contribution derived from his father’s earlier property. It was submitted therefore that the current value of $458,000 less $185,000 should be divided by two leaving the Applicant’s share of at least $136,500. In my view that is a correct calculation based on the evidence and the findings I have made.

I accept the Respondent’s submission that the Court is able to conclude that the Applicant’s share is at the very least $136,500.
It is clear that s.117 of the CSA Act provides a very broad discretion for the Court. The section provides that the Court having jurisdiction in relation to a child and in the special circumstances of the case the Court must be satisfied that one or more grounds of departure mentioned in sub-section 2 exists or exist and that it would be just and equitable and otherwise proper to make a particular order under the division. Sub-section 2 of s.117 provides for a number for grounds for departure. In considering a departure application I note in the authority of Gyselman & Gyselman (1992) FLC 92-279.
Reliance is placed upon s.117(2)(c)( i) which specifically provides in considering special circumstances of the case whether the administrative assessment of child support will result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income earning capacity, property and financial resources of either parent or the child. In the present case it is income earning capacity, property or financial resources of the Applicant which I have found go far beyond the pension which he currently receives. It is clear to me that in the circumstances the assessment of the CSA depending upon its correct analysis of the inheritance of the Applicant only goes some way to explaining the Applicant’s financial circumstances and to that extent it is my view that it would be unjust and inequitable to allow that assessment to remain given that it does not adequately or appropriate reflect the real financial resources or property of the Applicant.
Considering the relevant principles it was submitted for the Respondent that on the current assessment of $8,000 per annum if a lump sum was to be paid then an amount of $48,000 would be payable until the child J turns 18 followed by a further $12,000 for the final two years. That would be a total of $60,000 until both the children turn 18. That figure is only urged upon the Court if the Court were to decide that there is no need to increase the liable amount.
In the alternative it was submitted that the Court should look at the figures to assess the profit the Applicant has made since May 1999. It was submitted that one half of the net gain in real estate assets: $458,000 minus $185,000 equals $273,000 which divided by two equals $136,500. As that profit has been made in the course of three years it represents according to the Respondent’s submissions an after tax income to the Applicant of $45,500. If that is multiplied over the six year period until J turns 18 then the sum is $78,000. There would then be two years of $166.00 per week for one child giving a figure of $17,264.00. This would be a total liability $95,264.00.
It was properly conceded by the Respondent that there is no guarantee the Applicant will continue to acquire assets at such a rate. It was clear however and has been found by the Court that the properties purchased since 1999 had been purchased for investment reasons. It is equally clear as indicated that the G property is not a property which could reasonably be regarded as a retirement home for the Applicant’s mother. Having regard to the uncertainty about the Applicant’s ability to continue making profit arising out of property investments, it was then submitted that it may be more appropriate to treat the Applicant’s $60,000 per annum income over the last three years as specific to those years and make an order for the payment of child support for the period May 1999 to May 2002 at the rate of $13,000 per annum which would leave further child support dependent upon future assessments of the Applicant’s income. It is submitted that that approach would overcome the difficulties which arise with the CSA 25% rule which arises from s.128 of the CSA Act. It was submitted that future assessments cannot be reduced by more than 25% to account for non periodic payments. In the present case this is not seen as a substantial problem as any future assessment against the Applicant would most likely be based upon his disability support pension and would therefore be minimal.
The Court was referred to the decision in Dwyer v McGuire (1993) FLC 92-420. It was suggested by the Court in that case that one way around the situation is to identify an appropriate lump sum and stipulate it as being 25% of any future assessment until the total sum had been credited to the payers liability. A lump sum of $6,000 was said to be worth $25.00 per week for five years based on a future assessment of $100.00 per week. It was submitted that the main reason for not allowing a lump sum payment of child support was the possibility of circumstances changing in the future. This is a relevant consideration in the present case given the Applicant’s real estate transactions may not continue to be as profitable as they have been over the past three years. That would be a reason it was submitted for nominating a lump sum as being a liability generated for a child support period from May 1999 until May 2002 with an additional shorter term provision to take into account the fact that it is undesirable to have the parties quickly catapulted into further child support assessment review processes and departure applications if there is a further real estate success.
It was submitted that it would be just and equitable to calculate the liability of the Applicant in terms of multiple years at the current assessment rate of $8,000 per annum or for a more limited amount of years on the basis of his acquisition of substantial funds in only three years, that is, deeming him to have an income of $60,000 per annum (excluding the pension) with a consequent liability of $13,000 per annum for three years to the present and three years into the future, a sum of $78,000.
As I have already indicated the Applicant takes a more direct approach by submitting that the assessment of the CSA should be permanently stayed and that his obligations should be calculated as nil.
For the reasons I have already given I am satisfied that it is just and equitable to make a departure order. I am further satisfied that the assessment of the CSA has not taken into account appropriately or at all the true financial circumstances of the Applicant at least for the three year period from 1999 to 2002. I accept that the Applicant’s income during that period may be reasonably regarded as income at a level of $60,000 per annum and on that basis the payment of child support for the period May 1999 to May 2002 should be at the rate of $13,000 per annum.
On the material currently before me I am not satisfied that that deemed annual income can be projected far beyond the immediate future though I am satisfied that it is appropriate to at least extend that deemed income for one further year to 2003.
The issue, which remains to be considered, is whether it is appropriate to make an order for a lump sum. The issue of whether to make a capitalisation order is set out in the Full Court of the Family Court of Australia decision in Prpic v Prpic (1995) FLC 92-574 at 81,688 where in that case the Court stated the following:
“Capitalisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties. However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances cannot be predicted with any significant degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate so to do. We would endorse the observations of Mushin J in Bendeich (1993) FLC 92-355 at 79,754 where his Honour said:
‘The rationale underlying the general approach of the court was that the longer a lump sum order operates the greater the chance of change in circumstances necessitating a variation of that order, thereby making the order unjust. Those changed circumstances might be in relation to the liable parent, custodial parent or the children. Incomes may increase or decrease and children may change their living arrangements from one parent to another.’"
I am satisfied in the present case that there is a distinct possibility that there will be a change in circumstances given that it may be quite possible that the Applicant’s real estate investment may not be as profitable as it has been in the past few years. I am also satisfied however in the present case there is significant acrimony between the parties and there has been difficulty in recovering child support from the Applicant who in my view has arranged his personal affairs with the assistance of his mother to ensure that he has been able to declare a low income. He has been able to obtain the benefit of public housing and a government pension whilst at the same time residing in what can only be described as a luxurious dwelling purchased as a result of successful past property investments. Those investments, in part, have been purchased as a result of his ability to mislead lending organisations as to real intention when the properties were purchased. That history does not encourage confidence in the ability of the Applicant to either accurately state his income or to ensure payment of his obligations under the assessment which I consider is appropriate.
In all the circumstances it is my view that it is appropriate to make an assessment of child support payable in the sum of $13,000 per annum for the period to be determined. In determining that period I have been invited to conclude it should be for the period May 1999 to May 2002 and I assume that the May 1999 date has been selected as that coincides with the purchase of the P property. In my view it would be fairer to set the commencement date as the date of sale of that property namely 6 September 2000 and in the circumstances it is my view that the period of time of three years should run from that date up to

6 September 2003.
It is appropriate that there be a lump sum order for that amount and that it be clear that in making that order for lump sum it is for that specific three year period from 6 September 2000 to 6 September 2003. The lump sum is therefore $39,000 payable for that period. It is not appropriate to make any further orders beyond that period as to do so would be speculative and in the circumstances not fair to the Applicant as I am not satisfied on the material before me that I can properly predict his future income earning capacity or the state of his financial resources beyond the period to which I have referred.
Accordingly the orders I make subject to any submissions from the parties will be as follows:
(1)The Application filed 28 March 2002 be dismissed.
(2)
That the Child Support Assessment in relation to J R born

4 January 1990 and T R born 2 October 1992 be departed from such that the father shall pay the sum of $39,000 by way of lump sum child support to the mother being $13,000 per annum for the period 6 September 2000 to 6 September 2003 in lieu of assessments made by the Child Support Agency for that period.
(3)On and from 7 September 2003 the amount of child maintenance payable shall be administratively determined by the Child Support Agency.
(4)That the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in orders 2 and 3 hereof.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 18 July 2003