SMP and RPT
[2003] FMCAfam 477
•7 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMP & RPT | [2003] FMCAfam 477 |
| CHILD SUPPORT – Agreement – child support agreement – agreement had provided for no child support to be paid – applicant free to apply for administrative assessment of child support. Child Support Assessment Act 1989, ss.117, 98 Bryant (1996) FLC 92-690. Gilmore (1995) FLC 92-591 |
| Applicant: | M P S |
| Respondent: | P T R |
| File No: | PAM3116 of 2003 |
| Delivered on: | 7 October 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 7 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on her own behalf.
There was no appearance by or on behalf of the Respondent.
ORDERS
That pursuant to section 98(1) of the Child Support (Assessment) Act 1989, the Child Support Agreement entered into between the parties on 10 April 1997 is discharged.
The Application is removed from the Pending Cases List.
I require a transcript of the reasons for my decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM3116 of 2003
| M P S |
Applicant
And
| P T R |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a child called L A R who was born on 30 April 1992 to set aside a Child Support Agreement and to return to the normal arrangement whereby child support is administratively assessed by the Child Support Agency.
The respondent father opposes the application. The applicant appears on her own behalf, the father has sought to be excused from appearing today as he resides in a suburb of A.
When the matter came before the Court on 9 September 2003, I directed that the respondent should file and serve an affidavit stating the facts upon which he sought to rely upon and a financial statement within twenty-one (21) days.
I further directed that the applicant was to forward a sealed copy of the orders made on that day to the respondent together with a letter advising him that if he did not attend Court today the Orders may be made in his absence. Each party has complied with the direction.
On 17th September the applicant forwarded a copy of these orders to the respondent under cover of a letter, dated 14th September, addressed to the respondent advising him of the adjourned date and informing him, and I quote from the letter:
“If you do not attend the next hearing Orders may still be made in your absence.”
The respondent was clearly aware of that requirement and this is evidenced through the preparation of a comprehensive affidavit and a financial statement as was required of him. The documents were both sworn on the 3rd October 2003 and arrangements were made for those documents to be filed, although I note that those documents were not filed until this morning.
The applicant has had the opportunity of seeing the Court copies of the material filed by the respondent, and I directed that she be provided with photocopies of the documents which were filed in order that she may read through the material.
In paragraph 14 of the respondent's affidavit he asks the Court to consider the application, in his absence, on information provided in his affidavit. He goes on to say that:
“The costs associated with the travel to P, New South Wales is difficult in his current financial circumstances.”
I am of the belief that his absence is satisfactorily explained by his affidavit material, and that the material filed by the respondent in compliance with my direction enables me to consider this case in his absence.
I have heard oral evidence from the applicant and I have asked her some questions about her material. I have also put to her a number of matters in the respondent's affidavit which go to support his case and I have heard her replies.
The Child Support Agreement which is sought to be discharged was made on 10 April 1997. On that same day there were Consent Orders made before a Judicial Registrar of the Family Court of Australia at A where the Court noted certain undertakings by the applicant and varied certain orders made by that Court on 12 April 1994. The Court made orders providing that the child, L, should reside with the applicant mother and that the father should have contact with the child in defined periods whilst the child lives outside the State of South Australia. There were a number of specific issues orders made and the Child Support Agreement was made at the same time.
For the Court to have the jurisdiction to vary or discharge a Child Support Agreement that agreement must be registered at the Court concerned. That requirement is set out by subsection (1) of section 98 of the Child Support Assessment Act, where:
(i)the agreement, or those provisions in the agreement, are registered in a court having jurisdiction under the Act;
(ii)the provisions may be discharged, suspended, revived or varied by the court in the same manner and in like circumstances as the court could discharge, suspend, revive or vary an order of that kind made by it.
The terms of the agreement were annexed to the applicant's original application and a full copy of the agreement was annexed to the respondent's affidavit. I am satisfied the agreement has been properly registered.
I note that the Full Court of the Family Court in the decisions of Davenport v Davenport (1994) FLC 92-454 and Wild v Ballard (1997) FLC 92-771, referred to public policy whereby:
The interests of a child can never be settled finally by order or agreement.
This principle remains operative, notwithstanding the fact that the agreement was expressed to cover the entire infancy of the child in that Order 4.3 of the agreement provided that:
There should be a nil administrative assessment for all child support years commencing 1 July 1997 and concluding on 1 July 2010.
The child, L, will attain the age of 18 years in April of 2010.
It is clear that the approach to be taken by a Court, when dealing with an application of this kind, is that the Court applies the same three stage process which is required under section 117 of the Child Support Assessment Act. The authorities for this proposition are the decisions of the Full Court of the Family Court in Gilmore (1995) FLC 92-591, Liesert v Nustch (1996) FLC 92-665 and Bryant (1996) FLC 92-690.
The principle is that the Court must apply the three stage process in dealing with any departure application. The Court, therefore, must satisfy itself of the following:
(i)whether one or more of the grounds for departure in subsection (2) of section 117 are established;
(ii)whether it is just and equitable within the meaning of subsection (4) of section 117 to make a particular order; and
(iii)whether it is otherwise proper within the meaning of subsection (5) of section 117 to make a particular order.
In this case the applicant refers to a number of changes of circumstances although I note that it is not incumbent upon the applicant to establish such a fact. She refers to her belief that it is the duty of the respondent to take a responsibility for this child. She refers to her own needs to support another child that she now has and she refers to the particular needs of the child L, who clearly has some musical talent and some sporting talent which he is fostering through the assistance of his mother and her current husband.
The circumstances as the applicant sets them out are that she had been residing in A after the dissolution of the marriage to the respondent. She had formed a relationship with the gentleman to whom she is now married who, at that stage, was residing in A but had the need to transfer to M in the course of his employment. The applicant wished to travel to M and reside there and wished to relocate the home of the child L to M.
It was those circumstances which brought about the application to the Family Court in A in 1997 and the applicant deposes that the respondent took the view that he would not pay child support if the child were to reside in a city other than A. Accordingly the consent orders were entered into relating to contact in the Family Court and the Child Support Agreement was entered into providing for a nil administrative assessment.
The financial consideration taken into account was the cost of airfares between M and A for the purpose of exercising contact. Since then the applicant and her husband and the child, L, have commenced to reside in S.
The applicant has another child, a little boy called H, born as a result of her current marriage. That child was born on 9 April 1999 and he is not yet of school age. He will not attend school until next year.
The applicant is not engaged in paid employment. She has been out of the workforce since the birth of H and she devotes herself on a full time basis to the care of both of the children. She also deposes to L's needs in the musical and sporting areas where he appears to have a considerable amount of talent. Unfortunately to follow these pursuits requires an amount of money.
I am satisfied that in the special circumstance of this case the capacity of the applicant to provide financial support for her child L is significantly reduced because of her duty to maintain another child, namely the child, H, who is below school age. I am satisfied that the applicant has shown that the child L has special needs which require an additional amount of support because of his musical talent and his sporting ability. He will be entering high school next year and as he plays amongst other instruments, a saxophone, it will be necessary to purchase a saxophone for him at a cost, which the applicant estimates to be some $3,000.
I have taken into account the commitments of the respondent to maintain another child. I note that he has since remarried and there is a young child of that relationship below school age. I also note the costs to the respondent in exercising contact with the child L, by means of airfares. True it is that the move to S has increased the cost of the airfare that the respondent is required to pay in order to exercise contact, so I can take judicial notice of the fact that airfares between S and A are significantly greater than the airfare between M and A brought about by the geography of the respective cities.
Against this there is evidence from the applicant that contact which was being exercised on a block contact basis, frequently during school holidays, is now only being exercised approximately once a year. So the higher airfare to my mind is more than offset by the reduced frequency of contact.
There is telephone contact between the child and the respondent, although on the applicant's evidence the number of telephone calls are made by the respondent to the child is relatively small and, in any event, I am not satisfied that such an expense would be a significant cost.
I look now as to whether it is just and equitable to make the order pursuant to subsection (4) of section 117. I am satisfied that it is just and equitable as the respondent is the child's father. He has to my mind a duty to maintain the child as far as his income permits. I note the needs of the child, he is a child who is about to enter high school and as children get older the financial needs for support increase.
I note that the child, at this stage, has no income or earning capacity or property or financial resources.
I note the mother is not in employment and is not in a position where she can enter the workforce even on a part time basis until both children are at school. I note that the father has a relatively modest income and he has a new wife and a young child to support. Clearly these are matters that would need to be taken into consideration. These are matters that are taken into consideration by the Child Support Agency when considering an administrative assessment. I must also look at subsection (5) of section 117 to determine whether it is otherwise proper to make an order.
I take into account the duty of a parent to maintain a child and I am satisfied that even though both parents have remarried it is the parents of a child, themselves, who have the primary duty to maintain L to the extent that they are able to do so.
There does not appear to be any evidence that the making of this order to discharge the Child Support Agreement would have any effect on any entitlement of the child or of the applicant to any income tested pension allowance or benefit or the right of any such income tested pension allowance or benefit.
I have heard evidence as to the manner in which the child is being cared for. He lives in a suburb of S, he attends primary school, he will be attending high school. He has the opportunity to involve himself not only in an academic education but both a sporting and musical education. That appears to me to be appropriate. It is put that his talent in these areas provides for some special needs and I am referred to the cost of musical instruments.
I am mindful of the fact that the mother is not in a position where she is able to re-enter the workforce. She was previously a medical receptionist but with another child under the age of attending school she is not effectively in a position to do so.
All in all I am satisfied that it is otherwise proper to make the order which I am asked to make. It is appropriate that the respondent should have a responsibility to support his child. Circumstances have changed and times have changed. Whether or not the agreement should have been entered into in the first place is, of course, not a matter for my consideration at all. The agreement was entered into and it did provide that there should be no payment of child support until the child became an adult, which meant that the only obligation that the father had was paying for the costs of contact.
I am not of the view that the costs of contact, whilst higher than would be for many Australians, are so unusual that that situation should remain.
I have no doubt that there are thousands of parents who live in a different state from their child and it is certainly well known to this Court that children travel from capital city to another, often by air, for the purpose of exercising contact and one party has to pay the airfares. These are matters that the Child Support Agency can take into account.
Accordingly I am satisfied that the application should succeed.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 31 October 2003
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