Sharp and Sharp

[2010] FamCA 799

FAMILY COURT OF AUSTRALIA

SHARP & SHARP [2010] FamCA 799

FAMILY LAW – PROPERTY – Child Support – Where substantial arrears and a future departure order are sought – Where the wife denies she signed the Child Support Agreement – Where there was an alteration from the Child Support Agency to collect to private collection allegedly without the wife’s knowledge – Matter to proceed after the Child Support Agency makes a determination

APPLICANT: Ms Sharp

RESPONDENT: Mr Sharp

FILE NUMBER: BRC 6701 of 2009

DATE DELIVERED: 30 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 30 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Wife appearing in person

COUNSEL FOR THE RESPONDENT: The Respondent Husband appearing in person

Orders

IT IS ORDERED THAT:

1. The trial of these proceedings be adjourned to a date to be fixed pending the determination by the Child Support Agency of the application lodged by the Wife.

2. Once the determination of the Child Support Agency has been received, it is requested a Registrar of this Court arrange for an appropriate officer of the Child Support Agency to give evidence.  Such officer, prior to the adjourned date of hearing is given leave to peruse all material filed by the parties in this matter by access to the Court file.

3. Leave is given to both parties to inspect the Child Support Agency documentation when produced to the Court, with no copies to be taken without the leave of the Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6701 of 2009

MS SHARP

Applicant

And

MR SHARP

Respondent

REASONS FOR JUDGMENT

1. This is a matter which is not without its complications.  On 5 February 2002, the parties entered into consent orders before Jordan J.  Those orders provided, effectively, that their three children, three daughters born in 1991, 1994 and 1997, respectively would spend, in effect, equal time with each parent. 

2. There had been a period, up until the date of these orders, where there was said to be arrears of child support payable, and as I understood the agreement reached between the parties at that time, it was a case of trying to assess the value of non-agency payments and, effectively, a line was drawn and a new agreement was to come into effect.

3. There were orders for property settlement at that time, but the relevant order for present purposes is paragraph 8.  The relevant part of paragraph 8 is the final paragraph which is in the following terms:

   It’s further noted that the parties have agreed to sign a child support agreement that will be registered with the Child Support Agency, providing that each parent be responsible for all costs associated with the daily care of the children while in their care, save that the father agrees to pay 60 per cent of school fees, school books, uniforms and other required school clothing, required school excursions and school approved music lessons and associated costs conducted at the school, and 50 per cent of all tuition fees for the children’s dancing at the current level of involvement.

   [underlining not in original]

4. That order is annexed to the wife’s affidavit filed on 31 July 2009 as annexure 2.

5. Annexure 3 is a child support deed which appears to have been prepared by Habermann & Associates, solicitors of Brisbane who acted for the Husband.

RECORDED:   NOT TRANSCRIBED

1. Now that deed is dated 5 February 2002 and paragraph 3.1(i) of the deed provides:

   This deed is intended by the parties to constitute a child support agreement pursuant to s84 of the Act.

2. The obligations of the liable parent are set out in paragraph 4 of the deed and, in large measure, replicates the terms of paragraph 8 of Jordan J’s orders other than the absence of the final words “at the current level of involvement.”

3. Paragraph 4.2 of the deed provides:

   Within 14 days from the date of signing this deed, the parties shall do all things, and sign all documents necessary, to cause this deed to be registered with the Child Support Agency for the purposes of registering liabilities in this deed.

4. Pursuant to trial directions I made in the course of a pre-hearing in this matter, the husband filed an affidavit on 23 July 2010. 

5. Annexure C to that document is a form 102 of the Child Support Agency.  Without having specific evidence on this aspect, I note that it is not uncommon within government departments that they won’t accept documents in a form such as a deed.  The Agency requires the documents to be completed in the Department’s own form.  However, whether that be the case or not remains to be seen.  The husband appears to refer to it as annexure B, but I’m satisfied it’s annexure C to his document.  It is the Child Support Agreement Form 102.

6. There is a signature on that form which bears a strong resemblance to that of the wife. The wife, for her part, says she’s never seen the document before.  She has no recollection of sighting or signing that particular document, and goes so far as to assert she did not put her signature on that document.

7. The operative part of the document appears to be paragraph 30, which again repeats the liability for 60 per cent of all school fees, uniforms, prescribed texts, school excursions, other required school activities and musical tuition;

   
   

   50 per cent of dance tuition for the children and 50 per cent of childcare for D.

8. Exactly the significance of the difference between the two documents for present purposes is not entirely clear.  However, at a suggestion on my part at a pre-hearing dealing in this matter, I suggested to the applicant that she may care to approach the Child Support Agency and show them the orders that she was seeking.  I had one instance, many years ago, where I had made orders only to be told by the Child Support Agency that they didn’t intend to enforce those orders.  Thereafter, it was my usual practice to see that the Agency would act in accordance with such orders.

9. The wife seeks, in so far as the Child Support aspects are concerned, substantial arrears.  She seeks a future departure order.  She seeks an order that in future the payments be enforced by the Child Support Agency, and as I’ve said, there’s an aspect which doesn’t concern the Child Support Agency, and that’s the alteration to the terms of paragraph 8 of the consent orders of Jordan J.

10. The wife says she went to the Child Support Agency to show them the proposed orders she was asking the Court to make, and the Child Support Agency searched its database and it revealed that in 2004, there was an alteration from the Child Support Agency to collect to private collection.  Now I am at something of a loss to understand this.  I do not have the documents from the database; I do not have the Child Support Agency file; I do not have the benefit of any evidence from the Child Support Agency, but I would have thought the nature of the payments were non-Agency type payments and would not have been the type of payments that the Agency would collect, in any event. 

11. But, suffice it to say, I am informed by the wife that this change was made in 2004 without her knowledge and without her being given the opportunity to be heard.

12. She further says that the Child Support Agency has a copy of the deed - that’s the Habermann deed.  They say they don’t have a copy of the form 102.  The wife says she’s now been upheld in relation to the change made in 2004 and there is to be some form of hearing or determination.

13. The husband has produced submissions and documentation which are attached to exhibit 2.

14. There is a letter of 4 August 2010 from the Agency:

    Dear [Mr Sharp],

    We are writing to let you know the outcome of the request by [the wife] for an extension of time to lodge an objection to the decision made on 5 August 2002, to accept a child support agreement for the children, [C], [R] and [D].

    We have considered the request and have decided to grant the request for an extension of time.  In making a decision whether to grant or refuse an extension of time, we considered the reasons for the delay in lodging the objection, whether reasonable and timely attempts were made to question the decision, the merits of the objection and any potential disadvantage to either customer or prejudice to the general public, if the extension of time is granted.

    We’ve enclosed a copy of [the wife’s] objection.  If you want to support or oppose the objection, please write to us within 28 days.

15. It goes on to say:

    The objection will be considered and decided by 3 October 2010.  In the meantime, your Child Support payments will remain the same.  We will write and let you know the result of the objection.

16. It is a concern to me that of the Child Support type orders I am being asked to make, that the Court could be in a position where it is making a determination contrary to a ruling that the Child Support Agency, itself, may make.

17. The Child Support Agency file has not been subpoenaed.  Certainly an officer of the Child Support Agency could be subpoenaed, to give evidence at an adjourned hearing, and I will make reference to that shortly.

18. One area of contention between the parties and, similarly, between the wife and the Child Support Agency, is that the eldest child moved to live with her mother for 100 per cent of the time.  That was some years ago.

19. Prior to that, the three children - as I’ve noted pursuant to Jordan J’s orders - were spending 50/50 time with the parties.  The wife says that the Child Support Agency didn’t recognise C being 100 per cent in her care.  She goes so far as to accuse the husband of giving incorrect information to the Child Support Agency.

20. I note that the orders that I’ve referred to provided for 50/50 care.  The Child Support Agency may well have ignored the realities of the situation, as the Court orders of 5 February 2002 have not been altered and the Agency felt they were bound by the legal position, regardless of the realities of the factual position.  This is speculation on my part, but it would not surprise me if that was the situation.

21. This litigation has been in train since July of last year, but it relates to issues going back many years prior to that.

22. I have concerns as to what is to be actually decided by the Child Support Agency by 3 October, and the husband may well want to clarify that.  He can put in submissions as he has been invited to be heard.  If the decision is adverse to the husband and, for example, some arrears are generated, as I understand the situation, his avenue of appeal of that determination is to the Social Security Appeal Tribunal and not this Court.

23. If the wife’s application is effectively dismissed, then presumably the matter can come back to this Court.  It will have to come back to this Court anyway, because of the non-Child Support Agency orders sought in the amended application. 

24. I have reluctantly reached the view that it is premature for this matter to proceed to a hearing until the decision of the Child Support Agency is known.  I make decisions according to my oath of office by ascertaining the applicable law, making findings of facts, and applying the law to those findings of fact.

25. I do not wish to be in a situation where I am informed that a conclusion I have reached is contrary to a determination by the Child Support Agency.  In any event, I have also reached the conclusion I would be assisted by the evidence of an officer of the Child Support Agency, preferably with full access to whatever documentation the Agency has if the matter is to return to my docket.

26. It appears the parties have case support officers from the Agency assigned to them.  It is preferable, in my view, that a senior neutral officer of the Agency come to give evidence in this matter and not some individual there who may be perceived to be aligned with one party or the other.

27. To that end, the Court has power to issue a subpoena of its own notion and I will arrange for a Registrar to attend to that aspect once the decision of the Child Support Agency is known, and once I am able to allocate a further date.

28. I am proceeding on the basis that this matter would finish in one day.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 30 August 2010.

Associate: 

Date:  30 August 2010