R & B
[2003] FMCAfam 321
•7 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & B | [2003] FMCAfam 321 |
| FAMILY LAW – CHILDREN – Contact – best interests – children aged 6 and 4 years – father lives in rural village. CHILDREN – Name of child – children have different surnames – need for child to identify with both parents. CHILD SUPPORT – Departure application – mother claims father has significant additional income from service in the Army Reserve – whether father has greater earning capacity – payments in credit – assessment significantly increased during the hearing – whether ‘just and equitable’ or ‘otherwise proper’. Family Law Act 1975, ss.60B, 65E, 68F(2) Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510 |
| Applicant: | A J R |
| Respondent: | P S B |
| File No: | PAM 3659 of 2002 |
| Delivered on: | 7 August 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 13 February & 1 July 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Ringbauer |
| Solicitors for the Applicant: | Baker Ryrie Rickards Titmarsh |
| Solicitor for the Respondent: | Mr Burke |
| Solicitors for the Respondent: | Christopher M. Edwards |
ORDERS
The Applicant father is to have contact with the children A P B born
5 April 1997 and T A R born 18 April 1999 as follows:(a)from 9.00 am to 5.00 pm each alternate Sunday;
(b)from 10.00 am on the first Monday of each school holiday period until 4.00 pm on the following Tuesday, extending to 4.00 pm on the following Wednesday from and after 1 September 2004;
(c)from 9.00 am to 5.00 pm on Father’s Day;
(d)from 9.00 am to 5.00 pm on Boxing Day;
(e)by telephone between the hours of 7.00 pm and 7.30 pm on three occasions each week and on each of the children’s birthdays; and
(f)at such other times as the parties shall agree.
For the purpose of exercising contact pursuant to Orders 1(a), 1(c) and 1(d) the father shall collect the children from the mother at the B Hardware Store on the corner of N R Road and C Street P and return the children to the mother at that same location at the conclusion of contact.
For the purpose of exercising contact pursuant to Order 1(b) the contact changeover point shall be the McDonalds Family Restaurant at L.
The Respondent mother is restrained from causing or permitting the said child T A R to be known by any other name than T A R or T A R B.
The Respondent is permitted to take the said children out of the Commonwealth of Australia for the purpose of a holiday in Canada and the United States of America for a period not exceeding five (5) weeks.
The application by the Respondent for a departure from administrative assessment of Child Support for the period commencing on 1 October and ending on 20 September 2005 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3659 of 2002
| A J R |
Applicant
And
| P S B |
Respondent
REASONS FOR JUDGMENT
Application
In his Amended Application filed in the Family Court on 17th September 2002, the father seeks the following orders relating to his two children until the New South Wales September/October school holidays in 2003:
a)that he should have contact with the children on one weekend each month, from the Friday evening until the Sunday evening;
b)for two weeks during the December/January school holiday period; and
c)that contact changeover should be at the McDonalds Restaurant
at B.After the September/October school holidays, the father seeks that he should have contact with the children along similar lines, except that he would seek to have contact with the children on Christmas Day in each alternate year, being odd-numbered years. He also seeks telephone contact each Monday, Wednesday and Friday.
The orders that the mother seeks are set out in a Minute of Orders handed up to the Court on 13th February 2003. The orders that the mother seeks are to this effect:
a)the father should have contact with the children on two Sundays per month between 9.00 am and 5.00 pm, and on Father’s Day;
b)contact changeover should be at the car park of the B Hardware Store on the corner of N R Road and C Street, P, NSW;
c)orders requiring the parties to inform each other of any medical emergency concerning one or other of the children and keep each other informed of their landline telephone numbers;
d)that the parties should sign the necessary documents to change the surname of the child T from the father’s surname of R to the mother’s surname of B;
e)that the parties should do everything necessary to allow the children to be issued with passports, showing the surname of the child T as B;
f)that the mother should be permitted to take the children out of Australia to visit Canada and the United States for a period of up to five weeks;
g)that there should be a departure from administrative assessment of the father’s Child Support liability for the period from 1st October 2002 until 30th September 2005 so that the father would pay the sum of $310.00 per month;
h)that arrears of Child Support should be paid at the rate of $200.00 per month; and
i)that the amount of Child Support should be varied on 1st October 2003 and 2004 according to the variation of the Consumer Price Index.
Background
The father is 39 years of age and the mother turns 32 on 5th August this year. The parties resided together from December 1995 until October 2000. There are two children of the relationship, A P B, who was born on 5th April 1997 and T A R, who was born on 18th April 1999. The children live with their mother in the Sydney suburb of N R.
The father resides in the village of B M, on a block of land that he had purchased before the parties commenced to live together in December 1995. B M is situated between the towns of C and Y. He travels to and from the Sydney metropolitan area on a regular basis in connection with both his civilian occupation and his service in the Army Reserve.
The mother is employed as a part-time Registered Nurse at W. She works night shifts on Thursday, Friday and Saturday evenings, from 10.00 pm to 8.00 am.
There have been discussions about the father’s contact with the children since shortly after the parties separated, but the children have not spent any time with their father overnight.
The father commenced proceedings at the Local Court of New South Wales at Y. On 16th July 2002 that Court ordered until further order that the father should have contact with the children for the first weekend of every month, for two weeks during the Christmas school holidays, and by telephone three times a week. The Court also ordered that contact changeover should be at L. The proceedings were then transferred to the Family Court of Australia at P.
Despite the orders having been made by the Local Court, the father did not obtain overnight contact with the children.
On 17th September 2002 a Deputy Registrar of the Family Court transferred the proceedings to the Federal Magistrates Court. The parties were directed to attend confidential counselling, which they did on 14th October 2002. No resolution was reached.
On 29th October 2002, I heard an interim application and made orders that the children should reside with the mother. The question of residence was not an issue. I also discharged the orders made by the Local Court and made some interim contact orders. Those orders were to this effect:
a)that the father should have contact with the children from 9.00 am to 5.00 pm on alternate Sundays, on Father’s Day and on Boxing Day;
b)the father was to have regular telephone contact with the children;
c)the father was not to exercise contact on Mother’s Day; and
d)contact changeover should continue to be at the B Hardware Store in N P.
The application was listed for final hearing on 13th February 2003.
On the day of the hearing, the parties were able to negotiate some consent orders. It remained the intention of the parties that the children would continue to reside with the mother. The parties also agreed that any contact order would be suspended on Mother’s Day and that they should keep each other informed of their current telephone numbers and addresses. The parties were able to agree that the mother should be able to obtain passports for the children, but the passports could only be used to take the children out of Australia if the father were to consent in writing or as a result of a court order.
Issues
The father’s contact with the children has been a long-running issue between the parties. The mother is opposed to the children having overnight contact with the father at his home at B M because she does not believe that the father’s home there offers adequate safeguards for them. She is also opposed to travelling to B or L for contact changeover because of the distance involved. Her concern is that she works night shifts and that driving any distance during the day will subject her to a great deal of fatigue.
The question of the father’s ability to make payments of child support is an issue for the mother. At the time the matter came before the Court, the father was paying the minimum rate of child support, $260.00 per annum, based on a child support income amount of $8,044.00 per annum. The mother argued that the father was earning significantly more than that because of his service in the Army Reserve, where his pay is tax-free and not, therefore, taken into account by the Child Support Agency. The mother was also of the view that the father’s business, known as A D and D W, was capable of producing more income than it was, so that the father could be said to have a greater earning capacity than he was choosing to exercise.
The surname of the child T is also a bone of contention between the parties. The children’s birth certificates show that the child T has the surname R whilst the child A has the surname B. A notation appears on A’s birth certificate saying, “The full name of the registered person was previously recorded as A Penelope R. Registrar 18 June 2001.”
The mother claims that the child T will suffer unhappiness when he goes to school if his name is different from that of his mother and sister. The mother claims in her affidavit of 2nd February 2003 that the father had agreed to the change of name for both children but later reneged as far as T was concerned.
The mother wishes to take the children on a holiday to the USA and Canada when she has saved sufficient funds to do so. The father has agreed to the children having passports issued, but will not give his consent to this proposed holiday, at least at this stage.
Principles to be applied
When a Court is making parenting orders, it must be mindful of the principles set out in section 60B(2) of the Family Law Act:
a)“children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.”
Section 65E makes it clear that the children’s best interests are the paramount consideration in making a parenting order. Subsection 68F(2) sets out the matters that a court must consider in determining what is in the child’s best interests. Not all of them are relevant to this case, but I have taken them into consideration and given such weight to the relevant matters as I consider appropriate.
In considering whether to make an order for departure from administrative assessment of child support, the Court must consider the additional particular objects of Division 4 of Part 7 of the Child Support (Assessment) Act 1989, which are set in section 114 of that Act:
a)“that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both t heir parents; and
b)that the parents share equitably in the support of their children.”
Section 117 makes it clear that the Court must be satisfied that one or more of the grounds for departure mentioned in section 117(2) exists or exist and that it would be just and equitable and otherwise proper to make a particular order under Division 4.
When considering the question of a child’s name, the court should be mindful of the principles set out in Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510, in circumstances where one parent does not consent to a child’s name being changed:
a)the welfare of the child is the paramount consideration;
b)the short and long term effects of any change in the child’s surname;
c)any embarrassment likely to be suffered by the child if its name is different from that of the parent with custody or care and control;
d)any confusion of identity which may arise for the child if his or her name is or is not changed;
e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage (where applicable); and
f)the effect of frequent or random changes of name.
In Beach and Stemmler (1979) FLC 90-692 Connor J took into account the matters set out in Chapman and Palmer and mentioned certain additional matters that may be relevant, including:
a)the advantages both in the short term and in the long term that will accrue to the children if their name remains as it currently stands;
b)the contact that the father has had with the children and is likely to have with them in the future;
c)the degree of identification that the children now have with their father; and
d)the desire of the father that the original name be restored (see at page 78,693).
In Mahony and McKenzie (1993) FLC 92-408, Warnick J attached no significance to the fact that the child’s surname had been registered as the father’s surname at birth. He held that a number of benefits could be expected to arise from the use of a hyphenated surname, made up of the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child had an ongoing relationship with both parents, even though they did not live together.
In Flanagan and Handcock (2001) FLC 93-074, the Full Court held that the power to change a child’s name is clearly an aspect of parental responsibility as defined by section 61B. The resolution of a dispute between the parents of a child about that child’s name is ultimately to be resolved by the making of a specific issues order under the provisions of section 65D, which is governed by the provisions of section 65E, which provides that the welfare of the child is the paramount consideration.
The evidence
The father gave evidence by affidavit and was cross-examined on
13th February 2003. He gave oral evidence in chief that his weekly income from his business had increased from $385.00 to approximately $420.00, and the figure of $57.00 for Defence Reserve Pay remained the same.
In cross-examination, the father said that he had agreed to change A’s last name to B but did not agree to change T’ name. He did not agree that T knows himself as T B.
The father replied to the mother’s proposition that he could exercise overnight contact with the children at his parents’ home at B by saying that his relationship with them was strained and has been so for more than two years. He said that he had not seen them at all for the past two years. He had no criticism of his parents’ ability to care for the children and no objection to the mother taking the children to see their grandparents. He has an elder brother living in Sydney, with whom he has a “fairly good relationship”. At times he takes the children to see his brother.
On the subject of the children being taken out of Australia for a holiday, the father said that he did not object to the children being taken overseas.
Mr Burke, for the mother, asked the father about his service in the Army Reserve. The father said that he usually attends for one weekend a month (except in January) and an annual field exercise for two weeks each year. Weekend training usually takes place at the RAAF base at R on the third weekend of the month. He holds the rank of Private and is paid at the rate of $71.00 per day, which is free of income tax.
The father did not agree that if he worked on a full-time basis as a carpenter or as a fitter and machinist for 38 hours per week he would earn more than $24,000.00 per hour. He has qualifications in both trades. He said that he travelled to the greater Sydney metropolitan area every second week as part of his design and drafting business, and he combines those trips with his current daytime contact with the children. He denied that he regularly received cash payments for his work and did not deposit them into an account. His Army Reserve pay is paid into a bank account.
In response to questions from the Bench, the father said that he was currently paying child support at the rate of $130.00 per month and that there were no arrears of child support at that time. He said that he was credit with child support to the extent of about $190.00 at that time.
At the close of the Applicant father’s case, the proceedings were adjourned. The hearing resumed on Tuesday 1st July 2003.
When the matter came back to court, the mother gave oral evidence. She said in chief that she had been recently diagnosed with hypertension and her doctor had prescribed medication for her. The mother tendered a letter from Dr L M dated 24th June 2003 confirming that diagnosis, which the doctor believed to be stress-related. It was the mother’s evidence that driving the children to L or B for contact would put unnecessary stress on her, especially if she had to then work a ten-hour shift at the hospital.
The mother was critical of the father’s residence at B M, describing the fences as having “gaping holes” in them.
The mother said in cross-examination that the children had not spent a night away from home in more than three years. When asked by Mr Ringbauer for the father whether she thought overnight contact would happen in five years time the mother replied that she could not predict what would happen.
The mother stated that she works at the Children’s Hospital at W. Her shifts are from 10.00 pm to 8.00 am on Thursday, Friday and Saturday nights. She said that she had arranged her shifts to suit her family and reduce the amount of day care required to a minimum.
Mr Ringbauer asked the mother about her proposed holiday with the children to Alaska and Canada. She said that the trip would cost about $10,000.00. The mother denied that there was any likelihood that she would not return to Australia with the children. She told the court that she was an Australian citizen and had no family anywhere else in the world.
The mother said that the child support payable by the father had been increased and that the current rate was $214.00 per month. An assessment was produced showing that the monthly amount of child support had been increased to $214.33 per month for the period 1st May 2003 to 31st July 2004.
Mr Burke for the mother asked her in re-examination when she thought that the children would be ready for overnight contact with the father. The mother would not commit herself, saying only that she made those sorts of decisions based on what may be happening at the time. The children did not travel well, she said, as they tended to fight, punch each other and get on each other’s nerves.
Conclusions
The father seeks overnight contact with the children. Mr Ringbauer for the father suggested that overnight contact could take place on one weekend each month with a week in the school holidays. The father was concerned that he was the one doing all the travel for contact, which he thought was unfair. He wishes to exercise contact at his own residence.
The mother opposes overnight contact at this stage, as the father lives on a rural property that she says is inadequately fenced. The mother has doubts about the standard of the accommodation in the father’s residence. The mother expressed doubts about the remote location of the property, which is a long way from a specialist children’s hospital like W, where she works. The father has never had contact with the children for extended periods of time. Her solicitor also raised concerns about the risks of travelling on country roads.
The paramount consideration in making parenting orders is the best interests of the children. In determining what is in the children’s best interests, the court must consider the matters set out in subsection 68F(2), as I have done in this case.
There is no evidence about the wishes of the children (sub-section 68F(2)(a)). There is, however, no evidence that the children do not wish to have contact with the father.
The relationship between the mother and the children appears to be a close one (sub-section 68F(2)(b)) and I note that the mother has been the children’s primary caregiver all their lives. The mother has taken the children to see their paternal grandparents on occasions, even though their relationship with the father is strained, and the father speaks in positive terms of that relationship. The father’s own relationship with the children appears to have suffered from the comparatively limited amount of contact that he has had with them. The mother says in paragraph 26(2)(e) of her affidavit filed in the Local Court at Y on 10th July 2002 that “the mother does not accept that (the father) has the either the capacity to care for the children for any period greater than about 8 hours, without risk to the children or the emotional stability to care for the children for longer periods than about 8 hours.” Whether or not that was the case in July 2002, there has not been any evidence led at the hearing that would establish that rather harsh assessment. In my view, the fact that the father has not at any time had any overnight contact with the children would be a limiting factor in his relationship with them, but not one that would permanently impair his ability to develop a good relationship with each child.
In looking at the likely effect of any changes in the children’s circumstances (sub-section 68F(2)(c)), I am mindful of the fact that the children have not spent a night away from home, or at least a night away from their mother, in three years. This would have an effect on the amount of overnight contact that should be considered, as the children would need to get used to the concept of being cared for by their father overnight, and spending time with him at his country home. The father, too, will suffer at first from inexperience, but the evidence does not suggest that this would be insuperable.
There are practical difficulties about the children having any form of extended contact with their father, due both to the location of the father’s residence at B M, which necessitates a fair amount of travel, but also the mother’s working hours, which involve her working night shifts on Thursday, Friday and Saturday nights (see sub-section 68F(2)(d)). The mother’s working hours are not a criticism of her, in that she has chosen to work hours that suit her ability to care for two young children, but they do place a limitation on the amount of travel she can do on a weekend. The mother has expressed some concern on the effect of fatigue on her if required to drive for an extended period of time. In my view, these difficulties do not mean that there should be no overnight contact or that the children should not spend some time in the country, but they do constitute factors to be taken into account.
The mother has expressed some reservations about the father’s capacity to provide for the needs of the children (sub-section 68F(2)(e)), but, apart from his inexperience in caring for the children for any longer period than a day, I am not satisfied that there is evidence that the father lacks such a capacity on a permanent basis. The father has not raised any issue about the mother’s capacity in this regard.
The two children are a girl aged 6 years and a boy aged 4 years. They come from an Australian background. There is no evidence that they are immature for their respective ages, although the mother has described them as “shy” (see sub-section 68F(2)(f)).
The mother has expressed some fears that extended contact with the father may expose the children to some risk of harm (sub-section 68F(2)(g)) due to the remote location of the father’s residence and the relatively primitive accommodation (in the mother’s view) in which the father resides. The mother also raises concern about the length of time that the children would spend travelling.
I am not persuaded that the mother’s fears should be given a great deal of weight. There are many children who live in rural areas, and it is hardly realistic to suggest that all Australian children must live in cities. There is no evidence to show that the children suffer from any health condition that would require them to remain within a few kilometres of a large hospital at all times. I note that the mother wishes to take the children to Alaska within the next year or so. Unless the mother plans that the children should spend their entire sojourn in Alaska in a city such as Fairbanks, it would follow that they would be spending some time in an area that would be at least as remote as country New South Wales.
In considering the attitude to the children and to the responsibilities of parenthood displayed by each of the children’s parents (sub-section 68F(2)(h)), I am, satisfied that the mother is a caring, responsible parent, but one who appears to be over-protective of the children. It seems clear that she does not have a high regard for the father’s abilities as a parent, although she refrained from criticising his parenting skills during the hearing, tending more to suggest that the children were not yet ready to spend more time away from her. The father presented as a parent who wanted to spend more time with his children and seemed frustrated at not being able to do so. He, too, refrained from criticising the mother’s parenting skills. I am left with the conclusion that, despite their differences, both parents would portray the other in a positive light when dealing with the children.
There are no issues of family violence involving the children or a member of the children’s family. There is no evidence of any Apprehended Violence Order or other family violence order (however described) that applies to the children or any member of the children’s family (see sub-section 68F(2)(j)).
I note that it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child (sub-section 68F(2)(k)) but I am conscious of the fact that there needs to be a graduated approach to contact in this matter. Orders that appear to be useful at this stage may be less appropriate once the children are older. One child, A, attends school, but the little boy T has not yet started.
There are no other facts or circumstances that I think are relevant as far as contact orders are concerned (sub-section 68F(2)(l)).
Taking all the above matters into consideration, I consider that I should be mindful of the principles set out in section 60B of the Act. The current situation does not, to my mind, allow the children sufficient opportunity to know and be cared for by their father nor does it allow the children sufficient contact with him on a regular basis. I am of the view that the children are old enough to start spending some time away from their mother, and it would be a positive experience for them to see their father’s home and spend some time in a rural surrounding. Australia is more than just a collection of big cities. There is no evidence that the children suffer from any particular health problems that would require them to be close to a major city hospital at all times, and I can take judicial notice of the fact that there is a hospital in the town of C and large hospitals in O and B. I can also take judicial notice of the fact that air ambulance facilities are available to transport seriously ill patients to major hospitals in S or C when necessary.
The children are, to my mind, old enough to start spending a night away from their mother under the care of their father, and this time can be extended as they get older and more used to him, and he acquires more experience in looking after them. Accordingly, I consider that overnight contact could start during the school holidays, initially for one night, but the amount of time can slowly be increased. As the father is self-employed, he should be able to arrange his work so as to take some time off during a working week, which would assist the mother, who has an understandable concern about driving long distances on a weekend when she is required to work night shift on Thursday, Friday and Saturday nights.
Turning to the question of the surname of the child T, I have previously set out, in paragraphs 22 to 25, what I understand to be the law in respect of this issue. The rather unusual fact situation is that two children of the same parents have different surnames. The mother has identified, correctly in my view, the possibility that T might feel different once he starts school if his surname is different from that of his mother and, particularly, his sister. The mother says that he already regards himself as having the surname of B, although the father disagrees. As T spends most of his time living with his mother and sister, who are both named B, I am inclined to accept that T already has a concept of himself as being part of the B family group. I note that the father did consent to A’s name being changed to B, but not T’ name.
Controversy about children’s names is not uncommon in situations where children’s parents have separated, particularly where the parents have, for one reason or another, retained their separate surnames. Not only does this apply where the parents have never married, it also applies in many marriages, where many women elect to retain their original surname.
One solution that has been adopted is for children’s surnames to be hyphenated, as was the case in Mahony and McKenzie (supra), where Warnick J commented favourably on the advantages of this practice. With respect, the difficulty arises where those children grow up and have children of their own. Over a couple of generations, people could end up having very long names. My own preference is for male children to have their father’s surname and female children to have their mother’s surname, which is the current situation for the two children here, but I am not sure that it is in T’ best interest for him to be a social pioneer at his young age.
The father has a view that his son should carry on his name, which is perhaps a traditional view, but an understandable one. I believe that it would be in T’ best interest for him to retain the name of R, so as to continue the association with his father, but for him to add the name of B, so that his last name is the same as that of his mother and sister, with whom he lives most of the time. It does not appear to be any burden for this child to bear the name T A R B, which enables him to identify with both parents. I do not see that there is any particular need for the names to be hyphenated, and, in later life, T may choose for himself whether he wishes to use both names or only one.
Turning to the question of the mother taking the children to Canada and Alaska for a holiday, I note that the father has already consented to the children obtaining Australian passports. He has also given evidence that he has no objection to the children being taken overseas for a holiday. The Full Court of the Family Court has considered the question of children being taken out of Australia in the matter of Line (1997) FLC 92-729. In this case, the mother has given evidence that she is an Australian citizen with no family anywhere else in the world. She has permanent employment in Australia. The countries to which she proposes to take the children, Canada and the United States, are both parties to the Convention on the Civil Aspects of International Child Abduction (known as “The Hague Convention”). In all the circumstances, the likelihood that the mother will take the children out of the country and not return them would seem to be very low. I am satisfied that the mother should be permitted to take the children out of Australia for a holiday of up to five weeks. I will order accordingly.
The other matter for consideration is the mother’s departure application, where she seeks that the father’s child support liability should be increased for the period commencing 1st October 2002 and ending on 30th September 2005 to the sum of $310.00 per month, “being the amount that would be paid on a Taxable Income of approximately $25,000.00 per annum.”1 The mother also sought that all arrears of child support created by that order (erroneously referred to as Order 1) should be paid at the rate of $200.00 per month.
1 Paragraph 10 of wife’s Minutes of Orders Sought dated 13/2/03.
The history of child support assessments, where relevant, is set out in the mother’s affidavit sworn on 2nd October 2002. As a result of a decision made by the Child Support Agency on 22nd August 2001, the rate of child support payable by the father was set at $1,560.00 per annum or $130.00 per week, for the period ending 30th September 2002. Despite an objection by the father on 30th October 2001 and a later application for administrative review, on 26th November 2001, this rate remained unchanged.
The father’s liability to pay child support reverted to the minimum rate for the period commencing 1st October 2002, apparently because he had not submitted an Income Tax return. At the time the matter was first before the Court and the father gave his evidence, on 13th February 2003, he said that he was in credit with his payments by an amount of $190.00 and was currently paying child support at the rate of $130.00 per month. In other words, he was overpaying the child support in anticipation of an assessment based on his Income Tax Return.
By the time the matter came back to Court, on 1st July 2003, the father had received amended assessments, dated 7th April 2003. The first of these two assessments maintained his payments at the minimum rate only until 30th April 2003. The next assessment, for the period from
1 May 2003 to 31 July 2004, requires him to pay child support at the rate of $214.33 per month. A statement of payments expected from the Child Support Agency dated 17th April 2003 showed him to have been in credit to the extent of $456.55 as at 22nd March and to have made three further payments, each of $32.50, bringing the account to a credit balance of $532.38 as at 17th April 2003.
I am not satisfied that the mother has shown that the father has a higher earning capacity than he has disclosed. The mother has claimed that, because the father is self-employed, he could obtain deductions for “such things as his motor vehicle expenses, work and materials upon his property at B M” based on her experience of the time when she lived with him prior to separation2 in late 2000. She also claimed that he was at times paid for jobs in cash3 but he denied this in his evidence. The mother’s assertions do not amount to sufficient proof of a significantly greater earning capacity on the part of the father from his employment.
2 Wife’s affidavit sworn 2.10.2002, paragraph 18.
3 Ibid, paragraph 19.
The mother also seeks to rely on the father’s earnings from the Army Reserve to show that he should pay more than the amount administratively assessed by the Child Support Agency. The mother stated in her affidavit sworn 2nd October 2002 that she believes the father earns “at least an additional $3,000.00 per year in income from this source of employment.”4
4 Ibid, paragraph 17.
The evidence does not support this assertion. The father said in his evidence that he is paid at the rate of $71.00 per day and that he has served on one weekend each month, except in January, plus a fourteen day annual field exercise. This would amount to 36 days per year, which would work out at $2556.00 per annum. The father had given evidence that this money was paid into a bank account. I accept the father’s figures. The mother has produced no evidence to contradict the father’s assertions. It would have been possible to subpoena the father’s bank records, which would have shown direct transfers of Defence Reserve pay, or even to have obtained a statement showing the number of paid days of service performed by the father in a year. Army Reserve pay may not be liable to Income Tax, but it is not unrecorded. It must be accounted for in the same way as other Government expenditure.
When considering the evidence, I am not satisfied that the mother has shown grounds for departure. She has not shown that the father has a significantly greater earning capacity than he claims. The fact that the assessment has recently been substantially increased administratively, and the father’s history of overpaying child support over a number of months and building up a significant credit in anticipation of an increased assessment, all lead me to the view that it would not be just and equitable or otherwise proper to depart from administrative assessment of child support at this time.
The mother’s application for departure from administrative assessment of child support will be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 7 August 2003
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