Sellars and Barry and Ors

[2017] FCCA 2137

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELLARS & BARRY & ORS [2017] FCCA 2137

Catchwords:
CHILD SUPPORT – Application to set aside binding child support agreement – where father was declared bankrupt – where one child now lives with the father – exceptional circumstances – agreement set aside.

Legislation:

Bankruptcy Act 1966 (Cth), s.121

Child Support (Assessment) Act 1989 (Cth), ss.117(2), 136

Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)

Cases cited:

Simpson & Hamlin [1984] FamCA 62

Applicant: MR SELLARS

First Respondent: MS ELLIS

Second Respondent: MS BARRY

Third Respondent: CHILD SUPPORT REGISTRAR

File Number: MLC 9750 of 2015

Judgment of: Judge Hartnett

Hearing date: 12 May 2017

Delivered at: Melbourne

Delivered on: 6 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Carter

Solicitors for the Applicant: Taussig Cherrie Fildes

The First Respondent: No Appearance

The Second Respondent: In Person

The Third Respondent: No Appearance

THE COURT ORDERS THAT:

1. Pursuant to s.136 of the Child Support (Assessment) Act 1989, the Child Support Agreement entered into by the Applicant and the Second Respondent dated 12 December 2007 and registered with the Department of Health and Human Services be set aside as of 9 May 2010.

2. Any arrears accrued since 9 May 2010 pursuant to the Child Support Agreement dated 12 December 2007 be discharged AND IT IS REQUESTED that the Child Support Registrar remit any late payment penalties and/or interest.

3. The Applicant pay child support to the Second Respondent for X born (omitted) 2001, Y born (omitted) 2002 and Z born (omitted) 2004 in accordance with any administrative assessment of child support from time to time. Any overpayments that may be calculated by the Child Support Registrar once the Applicant’s income over the relevant period can be ascertained be forgiven and not payable by the Second Respondent.

IT IS NOTED that publication of this judgment under the pseudonym Sellars & Barry & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9750 of 2015

MR SELLARS

Applicant

And

MS ELLIS

First Respondent

MS BARRY

Second Respondent

CHILD SUPPORT REGISTRAR

Third Respondent

REASONS FOR JUDGMENT

1. These proceedings were initiated by the Child Support Registrar on 16 October 2015 by way of an application for enforcement of a child support debt.  On 9 December 2015, the Applicant sought to set aside the child support agreements entered into by himself and the First Respondent on 1 July 2000, and himself and the Second Respondent on 12 December 2007.

2. The First Respondent filed a response on 8 April 2016 seeking relevantly that the Applicant’s application be dismissed. On 23 June 2016, the First Respondent indicated by email to Chambers that she would not be attending the final hearing then scheduled for 8 July 2016. She declared her understanding that orders would be made in her absence. The First Respondent did not seek to withdraw her application for dismissal of the Applicant’s application, but failed to prosecute such application in part because she was “not putting (herself) into debt to deal with the Ms Sellars’ child support debt”. This was the expression of an understandable sentiment. The matter was subsequently adjourned to be heard on 27 October 2016. The Court was satisfied on the evidence before it that Ms Ellis was aware of the hearing date. On 27 October 2016, Ms Ellis was called and failed to answer the call.

3. On 27 October 2016, the Court ordered, relevantly, the following:-

   “…

   2. The application as contained in the response filed on 8 April 2016 by the first named Respondent is dismissed.

   3. Pursuant to section 136 of the Child Support (Assessment) Act 1989 the Child Support Agreement entered into by the Applicant and the first name Respondent dated 1 July 2000 and registered with the Department of Health and Human Services be set aside as of 9 May 2010.

   4. Any arrears accrued since 9 May 2010 pursuant to the Child Support Agreement dated 1 July 2010 be discharged AND IT IS REQUESTED that the Child Support Registrar remit any late payment penalties and/or interest.

   5.There is leave to the Applicant to seek a future order seeking the discharge of any Child Support assessed arrears, if necessary, and upon procedural fairness being afforded to the First Respondent.”

4. The proceedings remaining before the Court relate to the child support agreement between the Applicant father (‘the father’) and the Second Respondent mother (‘the mother’). It is those proceedings which are the subject of these reasons for judgment. Enforcement proceedings before the Court have been adjourned pending the outcome of this application.

Application and Response

1. In an amended initiating application filed on 14 December 2015, the father sought to set aside a child support agreement entered into between himself and the mother on 12 December 2007 (‘the child support agreement’). The father sought the child support agreement be set aside from 9 May 2010 including the discharge of any arrears.

2. The mother in her Amended Response filed 14 February 2017 sought the application be dismissed and sought the following orders:-

   “…

   2. That the Applicant father pay:

   2.1 the arrears in Child Support as assessed to be payable by him by the Child Support Agency (‘The CSA arrears’);

   2.2 the arrears of school fees owed by the father to the respondent mother being the Husband’s 50% share of (omitted) School fees for X 2014 and 2015 as asserted by the Second Respondent Wife $10,568.50.

   3. The Court make a declaration that Ms C holds her shares in Barry Sellars Investments Pty Ltd and (omitted) Pty Ltd on trust on behalf of the Applicant and the shares in (omitted) Pty Ltd are jointly held by her and the Applicant

   4. In the event the arrears are not paid by the father in by the date, the father shall sign all such documents and obtain all necessary signatures including the signatures of his partner, Ms C in order to effect the sale of the real property known as Property A held by Barry Sellars Investments Pty Ltd and the proceeds of sale be applied as follows:-

   4.1 to discharge arrears of child support owed by the father to the second respondent mother as recorded by the Child Support Agency.

   4.2 the sum required to discharge the arrears of school fees owed by the father to the respondent mother being the Husband’s 50% share of (omitted) School fees for X 2014 and 2015 as asserted by the second respondent wife at $10,568.50.

   4.3 the balance be held in a trust account with the husband and wife as signatories for the payment of the three children’s school fees of their choice and the balance to the father.

   to the Second Respondent mother within thirty days (‘the date’) of the date of these orders.

   5. In the event the father fails to effect the execution of documents as required to effect the sale of the Property A property within 60 days of the default, the wife shall have liberty to apply at short notice to the Court for further orders in relation to the sale of the Property A property and the wife shall have leave to join Ms C and Barry Sellars Investments Pty Ltd as a party to the proceedings and the Husband pay the Second Respondents costs of that Application.

   6. The court make further orders for ongoing child support as it deems appropriate.”

3. In these proceedings, the father relied upon the following documents and affidavits of evidence:-

   a)amended initiating application filed 14 December 2015;

   b)affidavit of the father affirmed 9 December 2015 and filed at 5.58pm (it being the second affidavit filed that day);

   c)affidavits of the father affirmed 18 October 2016 and 9 May 2017;

   d)financial statement of the father filed 9 May 2017;

   e)affidavit of Ms C affirmed 19 October 2016; and

   f)an outline of case document.

4. In these proceedings, the mother relied upon the following documents and affidavits of evidence:-

   a)amended Response filed 14 February 2017; and

   b)affidavits of the mother affirmed 16 February 2016; 23 June 2016; 13 September 2016 and 19 February 2017;

   c)financial statement of the mother filed 1 June 2016; and

   d)an outline of case document.

5. Tendered in evidence was a ‘Child Support Payer Transaction Statement’ for the period 2 January 1997 to 10 May 2017, wherein the balance summary, being arrears of child support, was in the sum of $226,201.02. This sum included a late payment penalty debt of $73,794.69.

History

1. The father was born on (omitted) 1962 and is now aged 55 years. The mother was born on (omitted) 1969 and is now aged 48 years. The parties commenced cohabitation in 1998 and married in (omitted) in the State of Victoria on (omitted) 1999. The parties separated on 15 January 2005.

2. There are three children of the marriage, X born (omitted) 2001 who is now aged 16 years (‘X’); Y born (omitted) 2002 who is now aged 14 years (‘Y’); and Z born (omitted) 2004 who is now aged 13 years (‘Z’) (‘collectively, the children’). Y is profoundly deaf, had by 2008 bilateral cochlear implants, and thereafter was diagnosed with Usher’s Syndrome Type 1.

3. On 12 December 2007, the parties entered into a child support agreement. At the time the children were very young - being 6, 5 and 3 years respectively. The ‘operative part’ of the child support agreement was as follows:-

   “4.        OPERATIVE PART:

   That the husband pay to the wife child support for the children as follows:

   4.1 At a weekly rate of $243.50 per child to be paid at the rate of $487.00 per child per fortnight from the date of this agreement, until such time as each child attains the age of 18 years or until 31 December in the year the child completes Year 12 of their secondary education, whichever is the latter.

   4.2 The fortnightly payment of child support shall be adjusted on 1 July, in each successive year by the Consumer Price Index (all States weighted average).

   4.3 The payments under this Agreement shall be made by direct debit from the husband's account to an account nominated by the wife.

   4.4 That the parties agree to equally share the cost of any school fees payable on behalf of the children at any school the children attend by agreement between the parties.

   5. The payments by the husband under this Agreement shall be credited against any obligation he may have under any assessment for child support as to 100%.”

4. The child support agreement sat in a complimentary way with Family Court of Australia orders entered into between the parties, on 14 December 2007, wherein the parties consented to final parenting and property orders. The parenting orders provided for the parties to have equal shared parental responsibility of the children; for the children to live with the mother, and from January 2008, for the mother and children to effect a relocation of their residence. The father was to spend time with the children as agreed but to include half of all school holidays and once a year during school terms for a maximum of five days.  Save for this single latter period in relation to which travel expenses were to be paid by the mother, and which in fact almost never occurred, the parties were to share the cost of travel for the children between the States of Queensland and Victoria.

5. Pursuant to the property orders, amongst other orders, the father retained ownership via his sole shareholding in the company Barry-Sellars Investment Pty Ltd (‘the company’) of the former matrimonial home, being a farming property of some (omitted) acres situate at Property A in the State of Victoria and being more particularly contained in Certificate of Title Volume (omitted) Folio (omitted) (‘the real property’). The real property had been owned by the father for some years prior to cohabitation with the mother commencing. The mother and father determined in February 2003 to place this property in the company name. The company acted as Trustee of the Barry –Sellars Investment Trust (‘the Trust’). The Trust held the real property which had a then value of $780,000. It had a mortgage encumbrance of approximately $360,000. Pursuant to the property orders, the father was required to pay the mother the sum of $400,000 in instalments throughout 2008, with the last instalment being paid in August 2008. To that end, the father borrowed $100,000 from his father to meet the instalment payments. Such sum has not been repaid. 

6. In (omitted) 2008, the mother relocated to (omitted), Queensland with the children. She remained there for 4 years until (omitted) 2012, when she and the children returned to Victoria, and specifically to (omitted).

7. On 1 July 2008, the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) took effect. The transitional provisions to the amending legislation had the effect of retrospectively deeming the child support agreement to be a binding child support agreement. This was unknown to the father and indeed to the parties for many years, being more than six.

8. On 4 May 2010, the father became a bankrupt. He was discharged from bankruptcy on 25 May 2013. In August or September 2010, being early in his bankruptcy, the father reduced his child support payments creating arrears pursuant to the terms of the child support agreement. He commenced to pay a sum of $400 each week to the Child Support Agency for the support of his daughter to the First Respondent and for the support of the children. The mother received an amount of $290 per week. In October 2013, the entirety of the $400 each week payment commenced to be received by the mother. On 11 December 2015 Judge McGuire ordered by consent that the father continue to make such payments of $400 each week to the mother. Additionally, during the time that the mother and children resided in Queensland (some 4 years), the father made various non-periodic payments for the benefit of the children in the form of airfares and the payment of some limited expenses.

9. In January 2012, when the mother and children returned to Victoria, the father commenced to spend more regular time with the children. Holiday time still proceeded equally between the parties. Although there was dispute between the parties as to the extent of the fortnightly term time, it was agreed that an arrangement was entered into between the parties in 2013 being that the children would spend 5 nights every fortnight with their father. The father’s evidence is that occurred. The mother’s evidence is that the father did not always avail himself of this time. In the year prior to that, the father spent at least 3 nights and often 4 nights a fortnight with the children. From 10 February 2015 and thereafter, during school term the father and the children have spent either each second (as provided for in the orders of 3 September 2015 of Judge Harland) or each third weekend with each other. This is because the father and Y reside in Melbourne and the mother, X and Z reside in (omitted). Y’s changed residence is described below.     

10. In January 2015, the father failed to return Y to her mother’s care and made an application to the Court for Y to live with him. Judge Whelan ordered on an interim basis on 10 February 2015 (and by consent) that Y live with the father. On 3 September 2015, Judge Harland ordered on a final basis that Y live with the father. Y had been diagnosed in April 2015 with Usher’s Syndrome Type 1, a genetic disease characterised by profound deafness, loss of balance, night blindness, poor vision and progressive loss of vision. (omitted) School (‘(omitted)) in Melbourne has extensive and excellent facilities to accommodate Y’s special needs. Y very much wished to attend there. The mother and father had initially both been very positive about Y’s potential enrolment at (omitted) School before the mother determined she no longer wished for such an enrolment for Y. There was the difficulty of the payment of the school fees. Additionally, Y would need to live in Melbourne. The father and his de facto, Ms C, together with Ms C’s daughter A, who is now 14 years of age, live in a rental premises in (omitted). The father proposed accommodating Y, whilst the mother proposed boarding. The mother then determined she wished for the siblings to remain together in (omitted) and all attend the same private secondary school.  

11. As it turned out, and following Y’s ongoing enrolment at (omitted) School, X commenced boarding at (omitted) School by agreement between the parties in February 2016. In April of that year, X was admitted to hospital with anorexia nervosa and has had repeated hospital admissions since that date. In May 2016, she was discharged back into her mother’s care and later, following her discharge from the (omitted) Hospital on 6 June 2016, X commenced to live with her father. X returned to live with her mother in August 2016 and that residence continues. The father’s evidence is that while X was in his care, he was required to care for her and as such, he was unable to work for a period of two months. Despite this, there is no doubt that the mother had the major care responsibility for X, and still does so, where she was required over some considerable time to organise her working life including leave without pay to be available to care for the parties very sick child.   

12. X and Z continue to reside with the mother and they attend (omitted) School. The mother bears sole responsibility for the payment of these school fees in the total sum of $26,304 in the 2017 school year. Whilst the father gave sworn evidence in December 2015, that he agreed to contribute toward these private school fees, he has failed to do so. He solely meets the private school fees and other school and health related expenses of Y. This is an amount unable to be quantified on the evidence, save the father, I find, overstated that amount at $51,896 per annum. It is something less.  However, such fees and expenses at a minimum would equal the amount expended by the mother on the other children.   

Legislation

1. To make an order setting aside the child support agreement, the Court must be satisfied that the Applicant has demonstrated exceptional circumstances and that as a result of such exceptional circumstances, the Applicant and/or child/ren would suffer hardship if the agreement was not set aside.

2. Section 136 of the Child Support (Assessment) Act 1989 (Cth) is relevantly as follows:-

   “CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 136

   Power of court to set aside child support agreements or termination agreements

   (1)  A party to either of the following agreements may apply to a court having jurisdiction under this Act for the court to set aside the agreement:

   (a)  a child support agreement that has been accepted by the Registrar under section 92 or 98U;

   (b)  a termination agreement, or a written agreement referred to in paragraph 80G(1)(b), that has been accepted by the Registrar under section 92.

   (2)  If a party has applied under subsection (1), the court may set aside the agreement in accordance with the application if the court is satisfied:

   …

   (d)  in the case of a binding child support agreement--that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.”

3. The Applicant submitted there would be significant hardship occasioned to the Applicant and the children if the child support agreement is not set aside. The Applicant specifically submits:-

   “1 The Applicant’s ability to provide for Y will be significantly affected on a day to day basis;

   2 The Applicant’s ability to pay Y’s school fees will be significantly impacted;

   3 The Applicant’s ability to continue to provide for Y’s required medical intervention will be impacted;

   4 The Applicant’s ability to continue to spend substantial and significant time with X and Z may also be impacted;

   5 Given the current uncertainty about X’s living arrangements, and her medical condition, hardship may also be incurred by X if the Applicant is unable to contribute towards her medical costs.”

The father’s bankruptcy

1. At the time of entering into the child support agreement, the father was in receipt, in December 2007, of income of approximately $100,000 per annum together with expenses being paid on his behalf for vehicles and associated expenses, telephones and a proportion of household expenses. The mother was in receipt of income of approximately $50,000. There was no expectation by the parties or provision made for the payment of private school fees. Upon relocating to Queensland, the children commenced attending the (omitted) Primary School.

2. Between December 2007 and December 2009, the (omitted business) of companies controlled by the father and from which he derived his income, operated out of (omitted) and relied on (omitted) businesses in several drought affected areas. Maintaining profitability became difficult.   

3. The father’s business difficulties and their integral parts resulted in the father becoming a bankrupt on 4 May 2010 on a creditor’s petition. The petitioning creditor was (omitted) Ltd (in liquidation). 

4. Prior to the father becoming bankrupt, on 23 September 2009, his de facto partner, Ms C with whom the father had commenced a relationship in (omitted) 2008, had become the sole director and secretary of Barry-Sellars Investment Pty Ltd (ACN (omitted)). Ms C replaced the father as sole director of the company. Contrary to the mother’s assertions, this position of director did not give rise to a beneficial interest in the assets of the company at that time. However, subsequently, the father transferred his sole shareholding in the company to Ms C. Ms C purchased 60 ordinary shares in the company for $1 each on 21 April 2010. In so doing, she took full control of the assets of the company which included the (omitted) farm (former matrimonial home) at Property A. Prior to this and on 5 February 2010, Ms C had become the sole director of (omitted) Pty Ltd, for the purposes of trading through this dormant company. Her intent was to try a new business model to assist in the rebuilding of the (omitted) Pty Ltd business, to which she had advanced the sum of approximately $85,000 in 2009 to enable the father to continue trading. These steps were taken also, as Ms C claims, to ensure repayment of her loan.

5. Ms C has an extensive knowledge of business and corporate governance, having been a director in her family group of companies for some 20 years. That family group of companies had synergies with the business of (omitted) Pty Ltd.  

6. The Trustee in bankruptcy did not challenge any financial transactions between the father and Ms C. The mother has pursued the father through various agencies and through his Trustee in bankruptcy in relation to the share transfer in the company from the father to Ms C. The Trustee in bankruptcy suggested such transaction might be void pursuant to s.121 of the Bankruptcy Act 1966 (Cth). The Trustee ultimately took no action, including the bringing of judicial proceedings in relation to this. There were many issues for the Trustee to consider. The real property was registered in the name of the company, not the bankrupt. It was a Trust asset. The Trustee could only pursue the shareholding. The Trustee took the view that the then actions of secured creditors, who were concerned about realising their own security, meant the shares were likely to have held no value at the time of transfer. The Trustee determined there was no commercial benefit to the bankrupt estate in commencing legal proceedings in respect of the share transfer, and there were insufficient funds in the estate to do so.

Parents Income

1. The father’s taxable income for the years (below) ended 30 June was as follows:-

   a)in 2010: $53,659

   b)in 2011: $53,915

   c)in 2012: $57,130

   d)in 2013: $62,234

   e)in 2014: $65,000 (estimated)

   f)in 2015: $92,000 (estimated)

2. The father does not manage the accounts or finances of the companies that were formerly under his control. He receives a share of the profit of the business run by Ms C, from which he pays the (omitted) school fees and personal living expenses.

3. The father has rebuilt his reputation and financial position following his discharge from bankruptcy in 2013 with necessary financial provisions and business savvy input made by his de facto partner.  Together with Y and A, they reside in rental premises in (omitted) which are paid for by Ms C.  Ms C owns, through her shareholding of the company, the real property. The father therefore continues to have the use and occupation of this property and continues some farming (income producing) activities on it. In the current year he estimates that to have grown from $17,000 in 2015 to $27,900 now.  The father is employed by (omitted) Pty Ltd engaged in the (occupation omitted). He receives a Trust distribution salary. Currently he receives the sum of $2,204 a week (a total of $114,608 gross per annum). Additional distributions appear to be made to him as needed. Significant distributions have also been made to his parents.

4. The mother undertook a (course omitted) in 2013 and 2014, and thus, enhanced her income earning capacity. She is now in receipt of income in the sum of $1,819 gross per week from her position as a (occupation omitted) (a yearly income of $94,588 gross). The undertaking and completion of this course whilst having the care of the children is a great credit to her. Whilst some of her business ventures have not succeeded, and indeed she has lost a large part of her capital of $464,000, received from the property settlement between the parties, she has always worked hard to provide for the children which included applying some part of her capital resources in their support. Her return to Victoria was assisted by the provision of cheap rental accommodation provided by a friend. It is cheap because the mother undertakes certain tasks in respect of the owner’s animals and large gardens.

5. The father notes he is currently paying, pursuant to Orders of the Court made 11 December 2015, the sum of $400 per week to the Child Support Agency. This is in circumstances where he has the primary care of one of the three children of his relationship with the Second Respondent and is paying significant private school fees. In the circumstances he submits this is substantially more than an administrative assessment of Child Support payable by the Applicant. In fact, the father ceased making any payments, save for one payment of $400, from 1 January 2017.

Other

1. The father was the sole registered proprietor of a property in (omitted), Melbourne. This property was purchased by him on (omitted) 2005 for $387,700 and encumbered by a mortgage to the (omitted). The property was negatively geared. On 16 November 2015, the father sold this property. His Trustee in bankruptcy had not done so, with no funds in the estate to effect a sale and no then equity. The sale price obtained by the father was $370,000. No profit was gained by the father.

2. The mother claimed that prior to the Child Support Agency commencing to collect child support payments in 2010, the father had arrears outstanding of $8,767.58. This was at a time when he was unable to pay his debts as they fell due and as a result, a sequestration order was made against his estate. He was at that time and prior, paying pursuant to the child support agreement, considerably more in child support payments than an assessment would have produced. Whilst the Court notes this claim, it is not a claim which alters the outcome of these proceedings which concern simply, should the child support agreement be retrospectively set aside.

3. The father has sworn on his oath that he would assist in the payment of the younger children’s private school fees when it suited his purposes in his application for Y to reside with him. Once that order was made, he did nothing to assist the mother in the payment of these fees. It appears to the Court he has capacity to meet these fees. His legal fees between 30 November 2014 to 20 May 2015 were $92,669; between March 2013 and December 2014 were $27,802; and in 2015 were $120,000 not inclusive of the cost of barristers. All of these fees were paid by the company (omitted) Pty Ltd as Trustee of the (omitted) Trust which makes payment of distributions to the father in lieu of salary.

4. The father and Ms C repaid the father’s unsecured creditors a sum of approximately $295,000 over some years which enabled the father to continue to earn an income.

5. Ms C appears to have paid, from the mother’s perspective, a small price ($85,000) to obtain effective ownership of the real property. The real property is subject to a mortgage encumbrance to (omitted) Bank. What equity was in the property at the time of the transfer of the shares to Ms C is unknown to the Court, there being no probative evidence as to that issue. The current equity in the real property is likewise unknown. The actions relating to the share transfer, without other evidence, do not act as a barrier to the setting aside of the child support agreement.

Conclusion

1. “Exceptional circumstances” are “very much a question of fact and degree”.[1]  When looking to all of the facts of this particular proceeding and the nature of those facts as set out above, it is clear that exceptional circumstances have arisen which justify the child support agreement being set aside in the terms as sought by the Applicant father. If it is not so set aside great hardship will be suffered by the father and to a lesser extent, by Y. The mother’s refusal to countenance the end of the child support agreement from the time of the father’s bankruptcy has not assisted the parental dialogue and behaviours of each parent in the promotion of their children’s best interests. The father’s subsequent considerable increase in time spent with the children which resulted in increased cost to him was another indicator that a reasonable dialogue should ensue between the parents. Of course the mother viewed the father’s retention of the real property via the agency of Ms C, together with the maintaining of his lifestyle, as a calculated ploy to deprive her of necessary child support payments but that case is not made out on the evidence. The father has no interest in any real property and, in fact, became a bankrupt on an unrelated creditor’s petition. It was a time of great stress for him. His ability to continue any form of child support payment was severely compromised. A much less sum would have been applicable on applying the administrative assessment formula.

   [1] Simpson & Hamlin [1984] FamCA 62.

2. Whilst the Court has a discretion to depart from what would otherwise be the applicable administrative assessment, provided special circumstances exist and it would be both just and equitable and otherwise proper to do so, [2] neither party has made application for a departure order and on the evidence it is not possible to justify any departure order on the grounds listed in s.117(2) of the Child Support (Assessment) Act1989 (Cth). The parties will need to make an assessment of that at the relevant time when child support amounts are quantified.

   [2] Child Support (Assessment) Act1989 (Cth) s 136(4).

3. Looking to all the facts, for both the mother and father it has been financially difficult. They need to work together, without incurring vast legal fees, to financially provide in the best possible way for their children, two of whom require considerable additional expenditure.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  6 September 2017