Telama and Telama

[2016] FCCA 2375

FEDERAL CIRCUIT COURT OF AUSTRALIA

TELAMA & TELAMA [2016] FCCA 2375

Catchwords:
FAMILY LAW – CHILD SUPPORT – Setting aside a Binding Financial Agreement – husband argues that exceptional circumstances have arisen since signing the agreement– agreement set aside.

Legislation:

Child Support (Assessment) Act 1989 (Cth) s.136(2)(d)

Cases cited:

Balzano & Balzano (2010) FLC 98 048
Daley & Daley (2009) FLC 98-039
Kennedy & Kennedy [2013] FamCA 332; 50 Fam LR 120
M & M [2009] FMCAfam 1034
Venson & Venson (No. 2) [2010] FamCA 963

Applicant: MS TELAMA

Respondent: MR TELAMA

File Number: SYC 1450 of 2008

Judgment of: Judge Henderson

Hearing date: 9 August 2016

Date of Last Submission: 9 August 2016

Delivered at: Sydney

Delivered on: 30 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Campton SC

Solicitors for the Applicant: Harris Freidman Lawyers

Respondent:   Self-represented litigant

ORDERS

1. That the binding child support agreement entered into between the parties on 3 April 2013 be and is hereby set aside.

2. The question of arrears arising under the agreement is reserved.

3. The issue of costs is reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1450 of 2008

MS TELAMA

Applicant

And

MR TELAMA

Respondent

REASONS FOR JUDGMENT

1. This is an application by a wife to enforce a binding child support agreement entered into between the parties on 3 April 2013. This is the parties’ second such agreement. The Husband represented himself. Mr Campton of Senior Counsel represented the wife. The husband had also filed a contempt application against the wife and her solicitor, Mr Kerr, in relation to proceedings in the Supreme Court. As I advised the husband, this court has no jurisdiction to entertain such an application. This application was withdrawn at the hearing before me.

2. The husband conceded he had a current debt of $202,000 under the terms of the binding child support agreement as at 21 July 2016. The husband’s position was that exceptional circumstances have arisen in his life which would cause me to exercise my discretion under section 136(2)(d) of the Child Support (Assessment) Act[1] and set the agreement aside.

   [1] Child Support (Assessment) Act 1989 (Cth) s.136(2)(d)

3. The Husband says these are, firstly, the consequences of the liquidation of a company he was a sole director of, which event was not contemplated when he entered into the agreement, was unexpected and is an exceptional circumstance. This liquidation has resulted in an amount of some $607,000 being claimed from him by liquidators following an audit of his company.

4. Secondly, he has significant tax debts arising from this liquidation and sale of assets which were not contemplated by him when the agreement was entered into and these are also exceptional circumstances.

5. Thirdly, even if he paid his wife all the income he currently earns from his position with the (employer omitted), this would be insufficient to cover his liability under the agreement and this is an exceptional circumstance. This submission is correct.

6. His gross income as disclosed in his financial statement is $4,203 per gross income or $218,556 per annum gross. His tax $1,817 per week. His net income after payment of tax is $123,412 per annum. His obligations under the binding child support agreement are $140,000 per annum. Thus on that income his submission is made out.

7. Fourthly, all the above together create an exceptional circumstance and not to set the agreement aside would cause him hardship.

8. The wife opposes the husband’s application.

Evidence

1. The evidence for the husband was;

   a)His response filed 16 November 2015,

   b)Affidavits of 16 November 2015 and 21 April 2016,

   c)Financial statement 16 November 2015 and 21 April 2016.

2. The evidence for the wife;

   a)Her application filed 9 October 2015,

   b)Affidavit of 21 July 2016; and

   c)A financial statement of 8 December 2015.

3. The Husbands exhibits were;

   a)Husband’s exhibit 1: letter dated 2 August 2016 regarding the proposed resolution of the insolvency by the husband entering into a personal insolvency agreement, by 31 August 2016. This agreement would compromise the $607,000 current debt it is asserted his company owes to some $100,000 - $120,000 if accepted.

   b)Husband’s exhibit 2: child support assessment dated 13 August 2015 in relation to his obligation to support the children of his relationship with Ms S, who are A, born (omitted) 2010, and B, born (omitted) 2011. His assessment is $1180 per week. In that assessment, the agency assessed his personal income for that year at $647,076.

4. The Wife’s Exhibits were;

   a)Wife’s exhibit 1: notice to produce to husband.

   b)Wife’s exhibit 2: husband’s taxation assessment of 30 June 2013. His taxable income was $362,394. His tax debt at that time was $50,165.

   c)Wife’s exhibit 3: settlement of a sale of a property owned by the husband, Property S, on 1 September 2014. The net proceeds of sale of that home of $340,395 went into Ms S’s account. The husband says these monies were used to paying his then-tax debt, child support and for his and Ms S’s general living expenses.

   d)Wife’s exhibit 4: documents produced by the (omitted) Ltd, being a company the husband had contracted his services to. Monies received by the husband from 18 December 2014 to 17 May 2016 are $455,148.

   The husband was paid these monies via a company of his called (omitted) Pty Ltd, which is the Trustee Company of the (omitted) Trust. The last payment made by this company of some $45,000 in May 2016 was not for work carried out but settlement of legal action the husband took out against the company for unpaid fees. The husband’s relationship with that company ended badly. He ceased employment with the company in September 2015, and the last payment from the company to him was in October 2015, in the sum of $25,410.

   e)Wife’s exhibit 5: sale of 3 blocks of land (omitted) the husband in 8 April 2014. He received nothing from these sales as he disclosed in his financial statement.

   f)Wife’s exhibit 6: a subpoena addressed to Ms S, the husband’s partner. No documents were produced. He and she separated late 2015.

Short facts

1. The parties have four children; W aged 17; X aged 15; Y aged 13 and Z aged 11.

2. The parties were married on (omitted) 1996 and separated on 7 May 2007.

3. The children live with their mother.

4. The parties first entered into a binding child support agreement on 3 September 2010. They entered into a new agreement on 2 April 2013.

5. The husband has two children with Ms S, A, 6 and B, 18 months.

6. The new child support agreement obliges the husband to make the following payments:

   a)$6,815.33 to the wife for all four children each month.

   b)$3,154.29 for school fees for each child per year up to them completing fourth class.

   c)Thereafter from 5^th class $14,194 per child per year and $315.43 per month towards their private health insurance.

   d)The husband discharged arrears of child support of some $6,500 as well.

   e)He pays to a maximum $5,000 per annum towards Z’s special needs. Z is autistic and suffers ADHD.

7. The matter came before me on 8 December 2015 and I dismissed the husband’s application for a stay of the agreement and ordered him to pay $600 per week by way of child support to the wife. He had not paid the wife any monies since October 2015. He has paid $5,915 from December 2015 to date. He has not paid the $600 per week as ordered.

8. The wife has an unpaid costs order of some $33,000 in her favour against the husband although I am unable to find such an order on the voluminous court file consisting of 5 large boxes.

9. The husband has failed to maintain a life insurance policy he was to maintain pursuant to the agreement, and this policy has now lapsed.

10. The husband was most tardy and negligent in providing financial disclosure.

11. He received a notice to produce on 13 July 2016 yet did nothing to obtain his own tax documents from the Australian Taxation Office for this hearing. He produced notices of assessment for 2011 to 2014 but not 2015, because he said he couldn’t find it. That is an important piece of evidence in his case and should have been provided.

12. The husband has traditionally earned a significantly high income, around the $700,000 gross per annum. It is clear that this significant income and his demonstrated income earning capacity was the basis of his ability to pay the amount set out in the binding child support agreement. There were no other positive income-producing assets available to him in 2013 to supplement his significant income-earning capacity in assisting to pay under this agreement. It was income he was earning and little else.

13. His affidavit of 16 November 2015 deposed that at the date he swore the affidavit, he had been unemployed since 30 October 2015, was obtaining a new job in November 2015 which he was successful in obtaining and continues in that employment today.

14. He said at that time in November 2015 he had liquid assets of $57,200, total liabilities of $1,161,210, and was intending to propose a personal insolvency agreement to his creditors in relation to the company debts. As at 2 August 2016, the date of this hearing no insolvency agreement has been accepted or entered into.

15. The history of the husband’s employment is set out at paragraphs 9 to 17 of his affidavit.

16. The husband says at paragraph 9 he was employed as (occupation omitted) of (employer omitted) from 2 February 2015 on an initial contract to 30 June 2015, which was to extend to 31 December 2015. He was to be paid a salary of $454,425, inclusive of superannuation with no bonus, and he attached a copy of the contract to his affidavit. However he was engaged as a (occupation omitted) with (employer omitted) from 17 September 2015 as revealed by the wife’s exhibit 4. His first payment from (employer omitted) was for work invoiced in October 2015.

17. He says at paragraph 11 he experienced some difficulties in his interactions with the chairman and the major shareholder of the group and was informed on 5 September 2015 that his contract would not be extended, and he finished with the company on 30 October 2015.

18. At paragraph 12, he says he had previously been employed in the (omitted) sector since 1993 and that since the Global Financial Crisis his employment has been irregular, with seven different roles since 2008.

19. In June 2012, he was employed by the (employer omitted) as a (occupation omitted). He earned a base salary of $390,000 per annum, with a target annual bonus of $312,000. In July 2014, he was summarily dismissed from this role on allegations of misconduct.

20. He then says he was unemployed from July 2014 to February 2015 when he commenced his employment with (employer omitted). In reality that is an incorrect statement as he had a financial relationship with (employer omitted) from September 2014.

21. He asserts that he was suspicious of his longevity at (employer omitted) and whilst still employed, he applied for 14 roles in his area of expertise, including going to the (country omitted) in September 2015 to see if he could obtain work at the level he is clearly capable of achieving and has achieved in the past. He has had no success.

22. In November 2105 he was offered a role with the (employer omitted) as its (occupation omitted) in (omitted) at a base salary of $219,178, and he has taken that job, and he continues in that job today. For this hearing I will use $220,000 as his current salary.

23. When the husband entered into this binding child support agreement, was on an income of some $710,000 per annum and well able to make the payments under the agreement. This employment ceased in July 2014, when he was summarily dismissed due to misconduct. The Court does not know what the alleged misconduct was as he did not want to disclose this to the court. His employment, since that time has been patchy and he is now earning about 30% of the income he earnt at (employer omitted) in mid-2104 and about 50% of the income he earnt with (employer omitted) in 2015 evidencing a slow but sure decline in income.

24. The husband had disposed of all real estate he owned at the time of signing the binding child support agreement, including the home he built on Property S for his family with Ms S. He borrowed money from his company to finish the Property S home.

25. The net proceeds of sale of that home some $340,000 have been expended. He has sold shares and has used those moneys to pay his expenses including under this agreement. He sold 3 other items of real estate in 2014 with no net funds to him being realised.

26. Looking at the husband’s financial statement filed April 2016, he now has tax debts of $290,000. Part of this debt is a significant capital gains tax of $124,398 acquired in a prior year from the sale of shares and properties. He has credit card debts totalling $212,528, and he has attached those balances to his affidavit. He has arrears of child support to both wives totalling $210,000. His liquidator has demanded $607,000 from him.

27. Although his disclosure was poor and piecemeal and some of it came out at the hearing, I am satisfied all Mr Telama has today is some superannuation, his personal effects, his cars, which are leased, being a Mercedes Ms S drives, a (omitted), which he drives and his income and he has no other financial resources or income-earning asset available to him.

28. As I see the evidence, he is in a most extreme and parlous financial position. Assessing his evidence under cross-examination I find he was evasive at times and such that the court was misled. He stated in his affidavit at paragraph 14 that he was unemployed from July 2014 to February 2015. That was incorrect in terms of earning income. He was engaged as a (occupation omitted) with (employer omitted) from September 2014. Mr Telama said that he was thus not employed. Mr Telama full well knows that the focus of this enquiry is his income and financial resources and not a legalistic determination of whether he is “employed.” It was clear the husband was paid for work carried out by him initially as a (occupation omitted) with (employer omitted) from September 2014 until he was appointed as and then paid as the (occupation omitted) of (employer omitted) from 30 January 2015.

29. Mr Telama, who is unrepresented said in his affidavit at paragraph 11:

    “I experienced some difficulties in my interactions with the Chairman and majority shareholder of (employer omitted). I was informed by the Board on 5 September 2015 that my contract would not be extended. I eventually resigned and finished with the company on 30 October 2015.”

30. In a letter to Mr S he said he was unemployed from July 2014 until February 2015 and not working. This was incorrect and is misleading. The amount earnt by him as a (occupation omitted) from September 2014 to end January 2015 was $41,000.

31. He did not disclose his interest in the entities known as (omitted) Pty Ltd or the (omitted) Trust in his financial statement or affidavit, and his interest in these entities was only revealed after subpoenas were issued and in cross-examination. I am however satisfied these entities are of no value. If they were they would also have bene liquidated as all his other assets have been to pay debts and expenses. He did not disclose his litigation against (employer omitted) or the outcome of that litigation whereby he received some $45,000.

32. When pressed on this failure he said this was due to his affidavit being filed after the litigation was settled. However I gave the husband an opportunity before the hearing commenced to update the court on relevant matters that may have occurred post filing of affidavits and nothing was forthcoming. When asked, “Do you have any documents relevant to this settlement,” he said he no longer had them. This litigation was only settled in May 2016. That evidence did not assist his case.

33. Despite these glaring lapses, I am satisfied his current income, resources and property is before the court if not by his.

34. He has disclosed the income and monies he received from (employer omitted) accurately in his affidavit at around $452,000 in paragraph 10 thus his misleading has not resulted in a failure to disclose the income he received. He said he had last worked for (employer omitted) on 30 October 2015 which is correct and accurately stated the start of his new position with (employer omitted) in November 2015 in his affidavit of 16 November 2015. He had signed his contract of employment with (employer omitted) on 3 November 2015. The reality is he was not out of paid work at all in 2015.

35. The husband’s company ‘(omitted) Proprietary Limited’ had gone into voluntary liquidation in January 2013, two months prior to him signing the binding child support agreement. In light of this fact that the liquidator has made a demand from him on 10 April 2015 may not of itself grounds to support an exceptional circumstance. The husband’s company had gone into liquidation before he entered the agreement, and the possible range of consequences of such an event must have been known to him, or at minimum he had a capacity to make an inquiry at the time he entered into the binding child support agreement of the possible consequences of this liquidation upon his finances. This is all the more so given he knew he had borrowed money from his company to fund building of his home on Property S and pay for living expenses and child support.

36. Given this knowledge I find he must have been aware of the possible consequences of his actions at the time the company was liquidated, and that was well prior to the time he signed the binding child support agreement. However at the time of the liquidation he was still working with the (employer omitted) and earning his $710,000. Perhaps the combination of him losing his high paying position and the company liquidation are factors supporting a special circumstance to which I will later refer.

37. The husband gave evidence he has not paid lease payments for the cars Ms S and he drive and he is just waiting for them to be repossessed. I do not know as no documents to support this assertion we forthcoming. I accept $340,000 netted from the sale of his Property S home has been expended.

38. He admitted selling shares he had with the (omitted) on 24 November 2014, netting approximately $74,000 and that he had sold about $100,000 worth of shares between 2015 and 2016 to fund debts. None of these transacting were disclosed and only came out under cross examination. When asked what the monies were used for he said to fund debt and pay living expense including his obligation under the child support agreement. His evidence not challenged was that he paid his child support obligations up to 30 September 2015 in full and a further amount of $139,634 from July 2014 to October 2015.

The Law

1. I was referred a decision of Watts J of as Kennedy & Kennedy[2]. This is a most thorough, helpful and masterful judgment traversing the meaning of the words ‘exceptional circumstances’ across a range of acts and judgments. At paragraph 40, his Honour says, when considering what constitutes exceptional circumstances under 136A:

   [2] Kennedy & Kennedy [2013] FamCA 332; 50 Fam LR 120

   “40. When considering whether or not “exceptional circumstances” exist:

   40.1 the whole circumstances have to be taken into account;

   40.2 it may be that one circumstance alone cannot be described as exceptional but the whole of the circumstances, when looked at cumulatively, might be described as exceptional (see Gallup & Gallup [2009] FMCAfam 839);

   40.3 within a particular context whether something is exceptional is a matter of “fact and degree” (see Simpson & Hamlin (1984) FLC 91-576);

   40.4 care must be taken to avoid placing any “gloss” on the word “exceptional” as used in legislation (see Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCAFC 28);

   40.5 the words “that have arisen since the agreement was made” in s 136(2)(d) CSAA direct the Court’s attention to the circumstances that existed at the date the agreement was made and towards an inquiry as to what exceptional circumstances have arisen since the date of the agreement which would result in the applicant or the child suffering hardship if the agreement was not set aside.

   41. “Exceptional” can have nuanced meanings in different contexts and what is meant by “exceptional” is to be judged not in the abstract, but within the context in which that word is used in a particular piece of legislation. The phrase “exceptional circumstances” is used in different contexts within the CSAA and the FLA. The height at which the bar is set by the word “exceptional” can vary depending upon the legislative context.

   42. The word “exceptional” creates a tough test when used in the context of setting aside final orders for alteration of property or in the context of an application to discharge a return order in Hague proceedings.”

1. At paragraph 43:

   “The Honourable Stephen O’Ryan, when commenting upon the word “exceptional” where it appears in s 79A(1)(d) FLA, says, “[a] change in caring arrangements must be so exceptional as to take it out of the normal vicissitudes of life”.”

1. At paragraph 48, Callinan J in Baker v The Queen (2004) 223 CLR 513 (at paragraph 173) referred with approval to a statement of Lord Bingham of Cornhill CJ in the case of R v Kelly (Edward) [2000] QB 198 where his Honour said:

   “We must construe ‘exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”

1. I accept as His Honour said that this is that this is a tough test to pass and that the bar is high and that the onus is on the husband to satisfy me. However it is not an impossible test to pass.

2. His Honour referred to a decision of Brown FM as then was in Daley & Daley[3], where his Honour says that the normal English meaning in the dictionary was:

   [3] Daley & Daley (2009) FLC 98-039, para85-88.

   “…. Of the nature of or forming an exception; unusual, out of the ordinary; special; (of a person) unusually good, able, etc…
   86. Accordingly, for circumstances to be exceptional, they must be unusual, out of the ordinary or special. In the child support context, in respect of an application for departure, Kay J held [in Savery & Savery (1990) FLC 92-131] that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.

87. In… [In the] Marriage of Gyselman [(1992) FLC 92-279], the Full Court of the Family Court said as follows of the phrase “special circumstances”:

“Whilst it is not possible to find [sic] with precision the meaning of that term, as a generality it is intended to emphasise [sic] that the facts of the case must establish something that [sic] is special or out of the ordinary. That is, the intention of the legislature [sic] is that the Court will not interfere with the administrative formula result in the ordinary run of cases.”

1. That mere remarriage with children may not be a material or exceptional circumstances, because it is a regular, routine and normal event as set out in the decision of FM Hughes of M & M[4].

   [4] M & M [2009] FMCAfam 1034, para 38

2. His Honour cited the decision of Justice Austin in the matter of Venson & Venson[5], where he found that:

   “…the deterioration in the father’s financial circumstances, which occurred after the child support agreement was made, did not constitute “exceptional circumstances”. However, a feature of the father’s financial circumstances was a failure of B company to continue to provide him with the income stream that both parties assumed would continue when they entered the agreement. Both parties agreed that this was a failure of a fundamental condition of the agreement…

   … His Honour held that a failure of a fundamental condition of the agreement did constitute “exceptional circumstances.”

   [5] Venson & Venson (No. 2) [2010] FamCA 963

1. His Honour discussed the decision in Balzano & Balzano[6], of Justice Warnick where his Honour considered:

   “whether or not the inability to earn income during a period of time that the father was in prison constituted exceptional circumstances”

   [6] Balzano & Balzano (2010) FLC 98 048

1. In Balzano, his Honour found that the husband was in jail because of his criminality, being his attempt on the wife’s life and to then justify that as a special circumstances could not be a just and equitable decision.

2. His Honour referred to a decision of in In the marriage of Scott (1994) 17 FLR 420 at 444:

   “…being unemployed and without income is not of itself necessarily an answer by a parent to an application for child maintenance. The circumstances in which the parent became unemployed or without income, the reasons for it, the nature of his/her previous employment and the efforts (if any) which he or she has subsequently made to obtain employment are all relevant matters for consideration by the court in deciding whether the parent has any and what earning capacity such as to justify an order for child maintenance. Even in the absence of any current income or earning capacity, a parent may be required to pay maintenance for his/her children if he/she has property or financial resources which are or ought reasonably to be available for that purpose.”

1. Neither of the above propositions are the facts here. Mr Campton SC endeavoured to persuade me that because the husband was dismissed for misconduct from (employer omitted) that that in some way equates to the husband’s actions in Balzano. I reject that submission. Misconduct in the workplace does not equate to the conduct of the husband in Balzano.

2. There are also significant differences in this to the matter Justice Watts was tasked to deal with in Kennedy. In that matter, the husband had chosen not to work for many years, and endeavoured to persuade his Honour that was a reasonable position to take due to his care of subsequent children. His Honour was understandably not satisfied that it was a justified decision of his not to work, and said at paragraph 92:

   “I find that the father has decided not to work in paid employment at all; that that decision is not justified on the basis of his parenting responsibilities or his health and he has not demonstrated that avoiding his responsibilities under the child support agreement was not his major purpose.”

1. I do not find today that the parlous financial position Mr Telama finds himself in was or is designed by him to avoid paying his responsibilities under a child support agreement. If Mr Telama was still earning his $710,000 per annum, he would be paying under his child support agreement. Of that, I am certain. He is in a parlous financial position and is, at this stage, maximising his income-earning capacity and continues in the job he acquired in November 2015.

2. Secondly unlike Mr K, Mr Telama is earning an income just not the income he has traditionally earned and he said in evidence this is the lowest paid position he has ever had.

3. Thirdly unlike Mr Balzano and Mr K who had other assets from which their child support obligations could be satisfied Mr Telama has nothing but his income.

4. I see no other financial resource that the husband has, other than his income to pay child support for any of his children.

5. His Honour dealt with the hardship test at paragraph 96 of his judgement and the exercise of the discretion to set aside or not a binding child support agreement at paragraph 99.

6. The wife is seized of valuable real estate and the husband has nothing but his income at $220,000 per annum.

7. Does the combination of these factors create a special circumstance?

8. This is Mr Telama’s onus to discharge, and the bar is high but not impossible.

9. I have some difficulty reconciling the following vis-à-vis his four children with Ms Telama and his two children with Ms S. In October 2015, he entered into a child support agreement with Ms S for a limited period up to November 2018 to pay her $6,000 a month for her two children. When he entered into this agreement, his income was insufficient to pay this amount and discharge his obligations under his already then-binding agreement with Ms Telama.

10. There is, however, no evidence he has ever paid this amount, or that the Ms S has sought payment from him of this sum.

11. What he does pay to her is under an assessment issued by the agency in an amount of $1,180 per month as set out in wife’s exhibit 2 and his financial statement of April 2016.

12. His April 2016 financial statement states he actually pays $2,000 a week, or $8,000 a month, for all his children. This is inconsistent with his affidavit of 21 April 2016 where he says he has made no payments to Ms Telama for child support since 3 February 2016. This must be his liability as he sees it not what he actually pays. However, his evidence that even if he paid all his net income to Ms Telama it would not discharge his obligation under the agreement is made out on the facts.

13. He has not paid towards the support of his older four children since February 2016, even at the reduced rate of $600 per week, yet he asserts in his financial statement he supports Ms S with her rent, expenses and childcare fees but has not specified an amount.

14. What is concerning is that the husband entered into this limited binding child support agreement at the time he tells me he had $238,656 owing on credit cards, $124,390 ATO debt, $607,407 liquidator demand and $114,499 owing to Ms Telama. There may be a significant imbalance and possible misdirection in his treatment of his older children and his younger children. However it may also be the behaviour of a man not in touch with reality and seeking to provide the same level of support for all his children.

15. Further, in the child support assessment for Ms S dated 13 August 2015 his income was assessed at $889,573. Mr Telama said from the bar table that this figure included sale of assets in the tax year. These assets are the Property S home, three blocks of land, and share parcels.

16. He disclosed his child support assessment to Ms S in his affidavit and financial statement, but not the limited binding child support agreement he had entered into and this did not assist him.

17. Even though the husband did not disclose the disposal of all assets, and all his income as he distinguished employment and directors fees this does not result in disturbing my finding that the husband is in an exceptionally parlous financial state, to use the words of Austin J in Venson.

18. What are the factors I need to find to determine if an exceptional circumstance exists?

19. I am satisfied today that the Husband has only his income, some modest superannuation and some personal items. Otherwise, what he has are debts.

20. I am satisfied as in Venson, the husband at least assumed when he signed the agreement that the he would continue in his employment with the (employer omitted) or employment at that level of remuneration into the foreseeable future and this has not occurred.

21. I am satisfied that without his employment with the (employer omitted) or remuneration around that level the husband would have struggled to support these four children at the level set out in the agreement together with a second family. Although re-marriage and subsequent children are not of themselves an exceptional circumstance, all circumstances found to exist must be looked at to determine if together they create an exceptional circumstance and his re-marriage and support of 6 children is a factor to be considered.

22. I find that not to set aside this agreement will result in a continuation of debt which is increasing and for which the husband has no capacity to pay, and this is a significant hardship.

23. I find that even if he paid all his net income to Ms Telama, he could not pay his obligation under the agreement.

24. I find his dismissal for misconduct from the (employer omitted) does not equate to the level of behaviour in Balzano, despite Mr Campton SC submission to the contrary and that loss of this position is a factor to be considered by me.

25. I find that the loss of his high income job with (employer omitted) and the level of the debt from the liquidation of his company are when combined factors not foreseen by him.

26. I find that the husband is maximising his income earning capacity at this time at a salary of $220,000 per annum.

27. I find that the husband has no other financial resource available to him other than his income to pay his child support obligations.

28. I find that these factors combined being the husband’s parlous financial state, his significant and increasing debt, inability to meet the binding child support agreement obligation even if all income he earned was given to Ms Telama, when combined, with his obligation to his subsequent family and the hardship to him in continuing the agreement create an exceptional circumstance within the meaning of the Act.

29. These factors combined set this matter apart from the ordinary, the usual, or regular, and take it into the exceptional category, and for these reasons I will exercise my discretion to set aside the binding child support agreement.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 9 September 2016