Timper and Suttor

[2010] FamCA 1048

FAMILY COURT OF AUSTRALIA

TIMPER & SUTTOR [2010] FamCA 1048

FAMILY LAW – CHILD SUPPORT

Family Law Act 1975 (Cth)
Chid Support (Assessment) Act (Cth)

APPLICANT: Ms Timper

RESPONDENT: Mr Suttor

FILE NUMBER: CSC 340 of 2009

DATE DELIVERED: 29 October 2010

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 29 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms C. Benson

SOLICITOR FOR THE RESPONDENT: McKays Solicitors

Orders

1. By consent and upon me finding that a ground under s 117(2)(c) Family Law Act exists and it is just and equitable and otherwise proper to do so, that the father be assessed to pay child support at an annual rate of $15,000 per annum per child for R born … June 1994 and B born … April 1996 from 1 November 2010, until the 18^th birthday of each child.

2. The liable parent, Mr Suttor, is to provide child support referred to in order 1, in the form of a lump sum payment in the sum of $76,250 to be credited against and extinguish any liability under the relevant administrative assessment in relation to amounts payable under the liability.

3. The payment of $76,250 referred to in order 2, be made by way of payment under the following schedule:

   3.1.$25,500 by 30 November 2010

   3.2.$25,500 by 31 December 2010

   3.3.The balance of $25,250 by 31 January 2011.

4. All applications be otherwise dismissed and the matter be removed from the active pending cases list.

5. The father pay the mother by way of costs the sum of $660 on or before 31 December 2010. 

NOTATIONS:

1. I note that I have regard to the matters set out in s 123A(4), (5), (6) and (7) Child Support (Assessment) Act. 

2. I declare pursuant to s 123A(1)(b) Child Support (Assessment) Act that I am satisfied that it would be just and equitable in relation to the children and the carer entitled to child support and the liable parent and otherwise proper to make an order under s 123A Child Support (Assessment) Act.

3. Pursuant to 123A(3)(b) Child Support (Assessment) Act I specify that the lump sum payment referred to in order 2, is to be credited against 100% of the amounts payable under the liability referred to in order 1.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 340 of 2009

MS TIMPER

Applicant

And

MR SUTTOR

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter commenced by the mother filing an application on 19 May 2010. In that application, she sought a departure order under s 117 of the Child Support (Assessment) Act and an order pursuant to s 123 and 123A of the Child Support (Assessment) Act that the father provide that child support by way of a lump sum payment.  The application also sought enforcement orders.  The enforcement orders were not proceeded with because it is common ground that payments are now, as of the date of this hearing, up to date, and have been up to date since about June this year.

2. The mother did not press the balance of her application, except both parties will be in a position to make a costs application, at the conclusion of the proceedings.

3. After discussions with the parties, the issues were narrowed.  It was agreed that, given the history of this matter, it would be appropriate for child support to be fixed until both R and B reach the age of 18, and for that purpose, the parties will consent to an order being made under s 117 which will depart from the administrative assessment, and will create an assessment for both boys through till their 18^th birthday at the current rate; the current rate being $15,000 per annum for each of them. 

4. The parties also consented to capitalising that liability on the basis that on the one hand there would be no future value calculation done in respect of the immediate payment of that sum, and on the other hand that there also would be no inflationary increase in the annual on the other hand.  Both parties accepted that that would be a sensible resolution. 

5. The calculation that I carried out, and neither party disputed, was that there is about 20 months between now and when R reaches his 18^th birthday, and there is about 41 months between now and when B reaches his 18^th birthday.  That is a total of 61 months.  The monthly amount for each child is $1,250 per month.  Sixty one months at that rate is $76,250.  That was the agreed amount of the lump sum. 

6. The dispute between the parties narrowed to the time and terms upon which that amount would be paid by the father; the mother wishing that it be paid immediately; the father indicated that he would like it to be paid in equal instalments over a six month period.  The reason the father gave for what he sought was he asserted that his liquidity was such that with the wet season coming on, that he could not be confident that he could organise his financial affairs so as to be able to immediately make a payment of $76,250.

7. The father conceded that when the matter was before Bell J on 18 June 2010, he, in discussions with his Honour, acknowledged that he had a capacity and sufficient funds to comply with any order of the Court for payment of lump sum maintenance up to $300,000 within a period of three months from the date of the order.  

8. A large amount of material is before me in this hearing.  The mother has filed four affidavits and two financial statements.  The father has relied upon an affidavit of his which is part of the mother’s tender bundle.  The father has not updated his financial statement since April.  There have been some significant changes in his financial circumstances since that time.  He had an ongoing duty of full and frank disclosure, and had an ongoing duty under the Family Law Rules to update his financial statement so that the Court was apprised of his current situation from time to time.

9. It is clear from exhibit A that by at least April this year, the husband had planned for a significant business venture which I understand is in northern Queensland.  It was detailed in a document which set out a detailed projected cash flow analysis.  That cash flow budget document formed some focus before me during the hearing.  The document was prepared by the father’s normal accountants, to whom he pays considerable fees.  Currently, according to exhibit A, the husband owes these accountants $75,000.  The document sets out expected income is from April 2010 to March 2011, and it predicts income which is relatively consistent during the months of May through to November.  There was some drop off over the December, January period with it building again after that. 

10. The father asserts that there is a dip in income during the wet season, and to some degree, the cash flow analysis does confirm that because the income for January through April is lower than the income for the other months. 

11. The husband also relies upon a document which became exhibit A, which sets out the total of his debts for both his trading enterprises, not just M Company but also C Company.  The total of the outstanding moneys, according to that document, is $646,000.  However, there are a number of amounts in that list that were the subject of comment during cross-examination and submissions, the most significant of which is the amount owing to MacDonnells Law, $216,000.  Oral evidence was given by a senior associate from that firm that that figure is, in fact, slightly higher than that, $240,000.  There is no indication, however, as to whether or not MacDonnells are currently pressing for the immediate payment of those funds.

12. I found the husband’s evidence about whether or not he had contracts and what a contract meant slightly disingenuous.  It seems to me quite clear that he has got a contractual arrangement in northern Queensland, an arrangement with an enterprise there that allowed him to be comfortable enough to enter into millions of dollars worth of lease commitments in respect of machinery.

13. Looking at the material overall, there have been significant periods of time where the father has been in substantial arrears.  Enforcement action has been taken by the agency on quite a number of occasions to obtain money from third party sources for the payment of child support.  There is some indication on the documents that I have got that payments are made by the father when a court date approaches.  His recent history, however, has been better than past history.

14. It is quite clear that the mother has had to go to some reasonable lengths to get information relating to the husband’s financial position. The cash flow document is a good example of that.  The husband did not volunteer that.  It only came to the mother’s attention as a result of a subpoena that was issued in recent months.  It certainly was not volunteered by him at the time it was prepared, and as I have already commented, no updated financial statement was put on after April to update the Court in relation to what was happening in northern Queensland or what was happening in relation to the sale of substantial real estate.

15. The father has a history of controlling enterprises of considerable financial activity.  The child support hearings that have happened in the SSAT have led to determinations being made on more than one occasion that the father has maintained an affluent lifestyle, and determinations on more than one occasion which were unable to ascertain the true extent of the father’s financial activities.

16. I do not accept that the father cannot organise his financial activities within a period of up to three months in a way that would enable him to raise $76,250.  I do not think that what he told Bell J was wrong.  I accept that what he told Bell J accurately reflected the position.  I do not intend to order an immediate payment, but I intend to order that that amount of $76,250 be made in three monthly instalments, the first payment to be within 28 days of today.  The payment of $76,250 will be made by way of payment under the following schedule:

    16.1.$25,500 by 30 November 2010. 

    16.2.$25,500 by 31 December 2010;

    16.3.the balance of $25,250 by 31 January 2011. 

17. An order for costs is an order that is made under section 117 of the Family Law Act.  The normal rule is that each party to the proceedings would bear his or her own costs.  I can depart from that rule if I am of the opinion that it would be just to do so.  In doing so, I have to take into account the matters under section 117(2A).  I know and am generally familiar with the financial circumstances of both of the parties.  Neither party has been assisted by way of Legal Aid.  I have already in my primary reasons, referred to the fact that, in my view, the father has not diligently complied with his duty for frank disclosure, which is a duty to, during the course of the proceedings, inform the other side of significant changes in his financial circumstances.  The mother can make some complaint about what she has had to do in order to get access to the husband’s financial material. 

18. The father, however, has not been wholly unsuccessful in what he has sought in the proceedings.  The mother did make an application for a lump sum of $300,000.  And as I commented to her this morning, I really never understood the basis upon which that claim was made by her.  A number of the other applications were misconceived. The application under s 121 FLA, for example, that was not pressed at the commencement of the hearing this morning and a number of the other applications were sensibly not pressed by the mother.

19. Overall, I think that it would be just if the father made some payment towards the amount the mother has expended by way of disbursements as set out in the exhibit.  About a third is what I would assess as being just, that is a figure of about $660.  And the father can pay his $660 by way of costs to the mother within two months. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 29 October 2010.

Associate: 

Date:  19.11.2010