TILSON & TILSON
[2017] FCCA 507
•21 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TILSON & TILSON | [2017] FCCA 507 |
| Catchwords: FAMILY LAW – Child Support – Application by father for substitution order under s.123 of the Child Support (Assessment) Act 1989 and declarations - father’s application summarily dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.17A Federal Circuit Court 2001, r.13.10 Child Support (Assessment) Act 1989 ss.117, 123, 124, 126 |
| Cases cited: Agar & Hyde vBatistatos & Roads & Traffic Authority of New South Wales (2006) HCA 27 Buckley v Tutty (1971) 125 CLR 353 Commissioner of General Steel Industries & Commissioner for Railways [1964] HCA 69 Spencer v The Commonwealth of Australia (2010) HCA 28 |
| Applicant: | MR TILSON |
| Respondent: | MS TILSON |
| File Number: | SYC 3626 of 2016 |
| Judgment of: | Judge Henderson |
| Hearing date: | 18 October 2016 |
| Date of Last Submission: | 18 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bacon |
| Solicitors for the Applicant: | Manby & Scott Lawyers |
| Counsel for the First Respondent: | Ms O’Neill |
| Solicitors for the First Respondent: | Doolan Callaghan Family Lawyers |
| Counsel for the Child Support Registrar: | Ms Rayment |
ORDERS
The application filed by the father on 9 June 2016 is summarily dismissed.
Any costs application may be listed by contacting my Associate in chambers.
IT IS NOTED that publication of this judgment under the pseudonym Tilson & Tilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3626 of 2016
| MR TILSON |
Applicant
And
| MS TILSON |
Respondent
REASONS FOR JUDGMENT
The matter of Tilson is an application filed by the husband on 9 June 2016 seeking orders as follows :
(1) From the date of these orders, and until a final child support terminating event occurs in relation to each of the children, X, born (omitted) and from Y, born (omitted) 2002 and Z, born (omitted) 2007, any moneys paid by the applicant to third parties for purposes directly related to the children’s educational costs up to $100 per week, be credited at an appropriate percentage against any child support otherwise payable by the applicant to the respondent regarding the children.
(2) The applicant be declared not to be properly liable to pay any of the arrears of child support he is currently said to own regarding the children.
(3) Any further order the Court deems appropriate to do justice between the parties.
The husband sought a stay of his child support assessment. That order was opposed by the mother. The Child Support Registrar sought, on an amicus basis, to intervene in the proceedings and I granted that leave.
Both the mother and the Child Support Registrar sought a summary dismissal of the father’s application.
Mr Bacon acted for the applicant father, Ms O’Neil for the respondent mother and Ms Rayment acted amicus on behalf of the Child Support Registrar.
The evidence I read was as follows:
a)The husband’s application filed 9 June 2016;
b)The husband’s affidavit filed 9 June 2016;
c)The husband’s financial statement filed 9 June 2016;
d)The wife’s response filed 5 August 2016; and
e)The wife’s affidavit filed 5 August 2016.
Summary dismissal applications are difficult to succeed as the Court is mindful to ensure the citizen’s right to have a justiciable issue ventilated and determined is a protected. In Spencer v The Commonwealth of Australia[1], a decision in 2010 in relation to the summary dismissal power under the Federal Court’s legislation, the Court said that the growth and volume of unmeritorious litigation in the Federal Court and in the Federal Magistrates Court, as our Court was then known (now the Federal Circuit Court), over the last few years, particularly in migrations, caused the government to relook at the law surrounding summary dismissal applications.
[1] Spencer v The Commonwealth of Australia (2010) HCA 28
The recommendation was that the rule be amended to read that the test be the application had “no prospect of succeeding”. In Fancourt & Mercantile Credits Ltd[2], the Court said:
The power to order a summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
[2] Fancourt & Mercantile Credits Ltd [1983] HCA 25.
This decision was referred to in the decision of Agar & Hyde vBatistatos & Roads & Traffic Authority of New South Wales[3], in which their Honours said:
The verbal formulae which are used in summary dismissal applications describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.
[3] Agar & Hyde v Batistatos & Roads & Traffic Authority of New South Wales [2006] HCA 27.
The Court went on to say that the test was high is cases of both mixed fact and law. Upon going back to the older decisions such as the Commissioner of General Steel Industries & Commissioner for Railways[4] and the decision in Dey & Victorian Railways[5], Dixon CJ said:
Once it appears there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious or an abuse of process.
[4] Above note 2.
[5] Dey & Victorian Railways [1949] HCA 1.
Section 17A of the Federal Circuit Court Act 1999[6] (3)(a) and (b) sets out a test for summary dismissal applications which is different to the Family Court. 17A is as follows:
[6] Federal Circuit Court Act 1999, section 17(3)(a), 17(3)(b).
The Federal Circuit Court of Australia may give judgment for one party against the other in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that of the proceedings; or
(2)(b) the Court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
In the Family Court the test is a much stricter test to be overcome to succeed on the summary dismissal application by an applicant being the application is bound to fail.
In a decision by, as he then was, Scarlett FM (latterly Judge Scarlett of the Federal Magistrates Court, now retired) of Pullman & Pullman[7], his Honour discussed the principles in a summary dismissal application. The test he said was “whether or not the applicant has a reasonable prospect of success”:
[7] Pullman & Pullman (2013) FCCA 31.
Rule 13.10 of the Federal Circuit Court Rules 2001[8] also provide:
[8] Federal Circuit Court Rules 2001, rule 13.10.
The Court may order a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding if the Court is satisfied:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
His Honour’s decision referred to Justice Kirby’s decision in Lindon & The Commonwealth (No 2)[9] and said in his decision:
The principles set out by Kirby J in Lindon & The Commonwealth (No 2)[10] still provide a most helpful guide to the Court when dealing with these applications.
[9] Lindon & The Commonwealth (No. 2) [1996] HCA 14.
[10] Above note 9.
Justice Kirby said the approach to be taken by the Court is as follows:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief is rarely and sparingly provided.
2. To secure such relief, the parties seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief for absence of a reasonable cause of action is not a substitute for proceedings by way of a demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleadings.
6. The guiding principle is doing what is just. If it is clear that proceedings within the concept of the proceedings under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Dealing with the second order sought, that.
The applicant be declared not to be properly liable to pay any of the arrears of child support he is currently said to own regarding the children.
It is common ground arrears of child support exist. They are around $17,000.00 as at the date of the filing of the husband’s application. That evidence is contained in his own affidavit at paragraph 17.
The husband further says at paragraph 17:
The respondent asked the agency to collect the debt of child support. The agency has threatened to sue me if I don’t pay the debt.
It was submitted to me that the applicant regarded this statement as a threat impeaching upon his freedom of activity and has caused him to in some way suffer and that I should therefore exercise my discretion and make a declaration that this debt is not enforceable against him.
The applicant says at paragraph 16 of his affidavit that the Court has the discretion not to enforce the debt, and that is true. My capacity to enforce or not enforce the debt is wide but not without boundaries or limitation. The applicant sought to rely upon a decision of Buckley & Tutty[11] and The Pharmaceutical Society of Great Britain[12] in support of his novel application. In that matter the relevant pharmaceutical body was proposing to change rules and regulations which would have resulted in a restriction on the trading and income of a particular pharmacist. At page 433 of that judgment their Honours say that:
The position put by the trading association was that in any event the action by the pharmacist to stop this event occurring was premature. The Society said that a rejecting member must wait, apparently, until the council thinks fit to bring him before a statutory committee.
[11] Buckley & Tutty (1971) 125 CLR 353.
[12] Pharmaceutical Society of Great Britain v Dickson [1970] AC 403.
Their Honours said at page 423:
The law is full of examples to show that a person whose freedom of activity is challenged can, in a proper case, have the issue determined so that he knows where he stands. Thus, a trader who is said to require some licence to trade may come to the Court and ask for a declaration to the contrary and not wait until he is prosecuted. This principle is not confined to trade. A person whose freedom of action is challenge can always come to the Court to have his rights and position clarified, subject always, of course, to the right of the Court in exercising its judicial discretion to refuse relief in circumstances of the case.
There is not one skerrick of evidence that the asserted comment by the representative of the agency that they would sue the applicant if he did not pay his child support debt, has, in any way, challenged or impinged upon the applicant’s freedom of activity. Or that it has, in any way, impinged upon his capacity to continue to earn an income, impinged upon his freedom of action, or challenged his freedom of action.
The second case that I was taken to was a decision of the High Court in Buckley v Tutty[13]. This was in relation to a footballer who wished to move from one club to another. His current Club said he could not do so under the terms and conditions of the contract he had signed. The matter came before the Supreme Court and went to the High Court. In that case, their Honours said:
The plaintiff was entitled to a declaration that he retain and transfer rules were unreasonably in restraint of trade and he is granted an injunction to prevent them being applied against him.
[13] Above at 11.
That decision is not relevant to this case and the assertion, which I struggle to accept in any event, that a representative of the Agency in saying quite properly to the father, “If you don’t pay your child support debt, we will sue you”, in any way has restrained his trade or in any way has impacted upon the husband’s freedoms. Even at its highest the husband’s application as to the declaration sought has no prospect of success and is doomed to fail. There is no connection between the cases I was taken to and the facts of this matter. There is no cause of action to ground the exercise of my discretion. The connection sought to be drawn to support the exercise of my discretion to issue a declaration was frivolous, vexatious and an abuse of the courts processes and this part of the application is summarily dismissed.
Going now to the order whereby the husband seeks to directly pay the children’s school fees up to $100.00 per week and that this payment be credited to his child support assessment.
That application is brought under s.123 of the Child Support (Registration and Collection) Act 1988[14], which reads as follows:
[14] Child Support (Registration and Collection) Act 1988, section 123.
An application may be made to a Court having jurisdiction under this Act for:
(a)an order that a liable parent provide child support otherwise than in the form of the periodic amounts paid to the carer in total to child support; or
(b) a lump sum under order.
The application can be made by the carer or the liable parent. There is jurisdiction and status for the applicant to bring this application.
In determining whether to make such an order, the Court must consider the factors set out in s.124 of the Child Support (Assessment) Act 1989[15] (“the Act”), which reads in part that the section is to apply in relation to :
…orders for provision of child support otherwise in the form of periodic amounts paid to a carer entitled to child support.
[15] Child Support (Assessment) Act 1989, section 124.
124(1):
Where a carer entitled to child support, or a liable parent, makes an application under 123(1)(a), and the Court is satisfied it would be:
(b)(i) just and equitable as regards to the child, the carer entitled to child support and the liable parent; and
(ii)otherwise proper;
to make an order that the liable parent provide child the child, otherwise than in a form of periodic amounts paid to the carer entitled to child support, the Court may make the order.
I must also have regard to the matters set out in s.124(2) of the Act[16]:
[16] Above note 14, section 124(2).
In determining the application, the Court must:
(a)have regard to the administrative assessment enforced in relation to the child;
(aa)any determination enforced under part 6A, departure determinations –
(b)any order in force under division IV, departure orders in relation to the child;
(c)whether the carer who is entitled to child support is in receipt of an income tested pension, allowance or benefit and if that order was made they would be able to support themselves –
I accept there is no reference to special circumstances and there is no initial hurdle to be overcome, such as in a departure application under section 117(2) of the Act[17].
[17] Above note 14, section 117(2).
Looking at the matters I must under the Act[18], the administrative assessment in force is currently for a payment of $311 per week and is based upon an income of the father of $80,000.00. That income was determined after a decision in the AAT following an appeal brought by the father.
[18] Above note 14.
The wife is receiving family tax benefit A of $381 and $50.00 in a Newstart allowance weekly. The mother is clearly someone in receipt of an income tested pension. The husband is currently paying child support of $60.00 a week on an assessment of $311.00 per week.
As the wife is in receipt of a pension the exemption to the court from giving reason when making an order under section 123 does not apply due to the operation of 126(2)(b). Section 126 of the Act[19] says:
If a Court makes an order, 123(a) or 124, the Court must give reasons for making the order and cause the reasons to be entered onto the record–
[19] Above note 14, section 126.
Additionally and pursuant to section 124(3) of the Act[20] the matters set out in section 117(4), (5), (6) and (7), (7A) and (8) of the Act[21] are matters I must have regard to in determining whether it is just and equitable to make the order sought. Those matters are as follows:
[20] Above note 14, section 124(3).
[21] Above note 14, section 117(4), (5), (6) and (7), (7)(a) and (8).
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
Income, earning capacity, property and financial resources
(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
What is the husband’s evidence to support the exercise of my discretion to make the order he seeks.
The facts are these.
a)The father spends no time with his children.
b)The father has a child support liability of $311.00 per week and is paying $60.00 per week.
c)The children attend a private school and the husband asserts he has paid $4,000.00 per annum towards those fees. There is no objective evidence to support that assertion as he did not provide same.
d)Currently, the husband has a child support debt of $17,000.00 and that debt is increasing.
At paragraph 21 of his affidavit the husband tells me he left his PAYE position voluntarily in 2015 and started his own business. He asserts his income is $25,000.00 per annum and not the $80,000.00 that has been assessed by the AAT. At paragraph 9, he disputes the wife’s income of $40,000.00 per annum. However, reading from the AAT decision, which was attached to his affidavit, at paragraph 45, they were satisfied that the wife’s income, property and financial resources were adequately reflected in her adjustment income for child support purposes, which, at paragraph 47 of the decision, was some $36,000.00.
At paragraph 47 of the decision, the AAT was satisfied that the husband’s adjusted income for child support purposes in March 2014 was $126,000.00. The AAT reduced his income to $85,994.00 and from 1 July 2015, to $80,000.00. The husband says the payment of the school fees is not reflected in the arrears of child support. However, that was the very matter raised by him at the Tribunal hearing, and when one reads paragraph 52 of the AAT decision this matter was taken into account by the Tribunal in their 10 February 2016 decision and was a factor known at that time.
The husband’s application under s.123 of the Child Support (Assessment) Act 1989[22] has no prospect of success for the following reasons.
[22] Above note 14, section 123.
Looking as I must to the matters under 117(4), (6), (7), (7A) and (8), and 123 and 124 of the Act[23].
[23] Above note 14, sections 117(4), (6), (7), (7A) and (8).
The husband is not paying his assessed child support of $311.00 per week, but $60.00 per week, and has arrears of $17,000.00 for child support.
It is not just or equitable, in these circumstances, to reduce the husband’s child support obligation by permitting him to pay the children’s school fees, in circumstances where their proper needs on a day to day basis are not being met in accordance with the assessment. To permit a substitution order would not be just and equitable in regards to the children and their mother, because the child support she should receive would be reduced by $100.00 per week to pay a discretionary matter private school fees.
Significant hardship would accord to the children and the mother if I granted this substitution order as it would further reduce the money available to their mother to meet their proper day to day needs. The mother is the children sole carer and parents the children with no assistance from the father whose assessed child support is a modest amount to assist in the support of 3 children. I am satisfied the mother is maximising her earning capacity and that the children have no independent source of income. It would not otherwise be proper to permit a substitution order in light of the substantial arrears and the father’s current extremely limited contribution of $60 per week to support of the children when he is assessed to pay $311 per week.
The wife is in receipt of a pension, which would be reduced in the event the husband paid his assessed child support. Given the public purse is now paying the wife more than she should be paid, because the husband has failed in his obligation to his children it cannot be just and equitable to allow him to further reduce his payments to the wife for the support of his children.
The Child Support Act is clear. Section 117 of the Act[24] tells us that parties have a primary obligation to support their children, and supporting your children is not necessarily payment of their school fees. Supporting your children is payment for their day to day expenses as well and perhaps is of far greater importance in a country such as Australia where we have an excellent public school system.
[24] Above note 14, section 117.
Secondly part of the rationale of the Child Support Act (Assessment) Act 1989[25] is to minimise the impost on the public purse in payment of supporting parent payments and the like by ensuring a both parents pay child support to the best of their ability.
[25] Above note 14.
To allow the husband to pay the school fees directly would, as I see it, go against both these tenets, in that he is not providing adequate day to day support for the children and this may result in the wife receiving more by way of public benefit than she would otherwise be entitled to, if the money was paid directly to her. Additionally given the mother is the only parent involved in the care of the children it is crucial that she and not the father determine what expenses are paid for the children from money paid to her by way of child support.
In the decision of Justice Kay of Szepietowski[26] his Honour allowed a substitution order for the credit of the payment for school fees directly towards to the husband’s child support debt. However, the facts of that matter are entirely different to this. In that matter the wife did not attend nor did she contest the matter. The matter was dealt with on an undefended basis. Secondly, when reading the decision, there is not one reason or basis given why his Honour determined that the substitution order was appropriate.
[26] Szepietowski (1991) FLC 92-447.
In the matter of Hall v Rushton[27] a substitution order was allowed for children clothing and the like where the wife had agreed to a nil assessment. Again no reasons where preferred why it was just and equitable and otherwise proper to make the order and the facts of that matter are vastly different to this matter.
[27] Hall & Rushton (1991) FLC 92-249.
A decision by Judge Riethmuller in Bagala[28] at paragraph 20 was most helpful. His Honour talks about the objects of the Act at paragraph 20 and says:
Section 42C of the Act[29] seeks to have child support matter settled without recourse to the Courts, thus avoiding needless expense for the parties in using Court resources that might otherwise be utilised. There have been significant amendments to the scheme to advance that object, providing an inexpensive administrative for review of assessments. All of these considerations were driven by considerations of access to justice and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases.
[28] Bagala & Bagala [2009] FMCAFam 953.
[29] Child Support (Registration and Collection) Act 1988, section 42C.
The father has exhausted his administrative rights of review/appeal and is clearly aggrieved by the decision. However it does not follow ipso facto that this Court should re-open the very same arguments run by the father before the AAT unless the various tests and matters to be considered under the Act[30] are apparent and real.
[30] Above at 14.
In this matter the father has failed to satisfy me even when taking his evidence at its highest that his application has any prospects of success or that it would be successfully prosecuted. To permit him to proceed would cause further hardship to the children and the mother who is the sole parent of 3 children. The hardship is clear when the father’s application is he pays $100 a week for school fees but is currently only paying $60 per week for the support of 3 children.
I find further that the application filed by the applicant is an abuse of process of the Court for the following.
To allow his application would confound the objects of the Child Support (Assessment) Act 1989[31]. The facts in Bagala[32] were different to the facts here. The applicant was already in the Federal Circuit Court for property and parenting matters. It was not a stand-alone child support application and he was able to bring an application for departure at that time, while the property and parenting proceedings were on foot, chose not to do so, and Judge Riethmuller determined that he could not bring such an application later in time and that he was now estopped from so doing.
[31] Above at 14.
[32] Above at 27.
The abuse of process is clear as the father has already received the benefit of a positive departure application, for him, in having his income reduced in the AAT yet again, has sought to re agitate that decision not by an appeal but by re-opening the very factual matters raised and determined at the AAT hearing. The thrust of his application is to pay less money directly to the mother and his reasons for so doing are specious.
Additionally, in relation to the declaration the father seeks he seeks that the Court declare the agency is estopped from declaring he has a debt, at a time when the Agency has not brought an action to enforce a debt nor declared a debt. This application is also an abuse of process as there is nothing to seek a declaration about. I need not agitate whether I have the powers to make the declarations sought given I find there is no order, decree, award or declared debt upon which to make a declaration.
The husband has substantial arrears of child support and is prioritising the payment of school fees by his substitution order over the day to day support of the children. He voluntarily left his PAYE work to commence a business. He has been successful in a departure application from his child support assessment income assessment in 2014 of $124,000.00 to $80,000.00 per annum in 2015/2016.
These are the principles I have relied upon in this matter and on the facts I find that husband’s application has no prospect of success and his application filed 9 June 2016 is summarily dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 21 March 2017
Key Legal Topics
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Civil Procedure
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