W and W
[2000] FMCAfam 82
•12 December 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2000] FMCA fam 82 |
| CHILD SUPPORT – Maintenance – Enforcement – Child over 18 years |
| Applicant: | H C W |
| Respondent: | B P W |
| File No: | ZM 4218 of 2000 |
| Delivered on: | 12 December 2000 |
| Delivered at: | Melbourne |
| Hearing Date: | 28 & 29 November 2000 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Sweeney |
| Solicitors for the Applicant: | Marshalls & Dent |
| Counsel for the Respondent: | Dr Ingleby |
| Solicitors for the Respondent: | Lander & Rogers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM4218 of 2000
| H C W |
Applicant
And
| B P W |
Respondent
REASONS FOR JUDGMENT
Proceedings
These Proceedings were transferred by consent of the parties on
9 October 2000 from the Family Court of Australia. A Form 46 Enforcement Summons had been filed by the husband on 24 October 2000, in which the husband sought a payment of capital together with interest from the wife pursuant to an Order made between the parties in the Family Court of Australia at Melbourne on 6 October 1995, such Order being registered in this Court.
In support of that Enforcement Summons, the husband had filed an Affidavit of 24 October 2000. The husband relied further, by way of answer to the wife’s amended Form 3 application filed 31 October 2000 on the following documents :
a)An Affidavit sworn the 6 October 2000;
b)An Affidavit filed 24 November 2000;
c)A Statement of Financial Circumstances filed on 9 October 2000;
d)A Form 3A Response filed on 9 October 2000; and
e)An Affidavit sworn by T D L filed on 24 November 2000.
The wife was the first applicant in time, her Form 3 application having been filed on 6 September 2000. This application she subsequently amended seeking an Order for maintenance for an adult child of the parties in the sum of $150.00 per week; a payment of arrears pursuant to a registered child support agreement; a variation of the child support agreement; and orders as to the retention by her of monies owed to the husband pursuant to the property orders of 6 October 1995 entered into between the parties.
The wife in support of her amended Form 3 application and in response to the husband’s enforcement summons relied upon the following:
a)An Affidavit filed on 6 September 2000;
b)An Affidavit filed on 31 October 2000;
c)A Statement of Financial Circumstances filed on 6 September 2000; and
d)An Affidavit by Dr P, Psychiatrist, filed on 22 November 2000.
Opening matters
At the commencement of the Proceedings the wife indicated the following:
a)That she sought a declaration that the child support agreement dated 12 September 1995 was valid and enforceable as to the arrears alleged to have accrued from the date of registration being 1 May 2000. She sought further that the husband pay child support for the child of the parties, G H W, but in a varied sum of $200.00 each week plus one half of all reasonable medical, dental, orthodontic and educational expenses;
b)That she sought the sum of $100.00 and not $150.00 each week be paid to her for the support of the adult child, B A W;
c)That she did not seek to proceed with Order No.2 of the Orders sought by her in her amended application and instead acceded to that part of the husband’s enforcement summons requiring payment of the capital sum of $20,000 together with interest to be determined by agreement between the parties during the currency of the hearing. On the second day of the hearing, by consent, I ordered the following:
i)That the wife pay to the husband the sum of $21,203 forthwith;
ii)That Doctor P now resided in C; that the wife relied upon his Affidavit and asked the Court to deal with it pursuant to Order 16 Rule 10.2(b). In the event that Counsel for the husband wished to cross-examine Doctor P, then Counsel for the wife referred me to Order 16 Rule 11 as to the question of costs and whom should be liable. At the conclusion of his evidence, Doctor P requested an amount of $200 only with respect to travelling costs and attendance time. It is a matter for my determination as to which of the parties should be responsible for these costs.
I required and obtained from the husband an undertaking given by him through his Counsel to the Court that he would not dispose of in any way the sum of $3,000 (of the lump sum payment made to him) until the handing down of my Orders and reasons for judgment. The quantum of $3,000 was fixed upon because the wife claimed arrears of approximately $2,900 pursuant to the child support agreement. Without any admission by the husband as to his liability to meet those arrears or their quantum, the husband agreed for the sake of expediency to give the necessary undertaking.
The husband counter offered that he provide child support for the parties child, G, in the sum of $145.00 per week as from the date of the registration of the agreement and that any arrears of child support be assessed as nil. He opposed the making of any Order with respect to the parties adult son, B.
Enforcement summons
The husband issued an Enforcement Summons in response to the wife’s Form 3 application filed 6 September 2000. Counsel for the wife quite properly conceded in opening that the payment of capital and interest should and would be made, thereby required no further Court time to be spent on the Enforcement Summons nor Order No.2 as sought by the wife in her amended application, which she promptly abandoned. Order No.2 sought was improperly drawn, it having no proper jurisdictional basis. Ordinarily in circumstances such as these, a costs order would flow wherein the wife would be responsible for the payment of the husband’s costs in relation to his Enforcement Summons. I am mindful of this aspect of the costs question when I detail the remainder of the Proceedings, and my view as to what costs, if any, should flow as between the parties.
Background
The wife resides at 12 L Street, C and the husband at 61 R Street,
S H. The wife is in part-time employment teaching disabled children. The husband is in full time employment as the Assistant Principal at
B School. The husband and wife are both 48 years of age, the husband’s date of birth being the 11 November 1952 and the wife’s being the 3 August 1952. The parties were married on the 29 March 1975 and separated on the 1 April 1994. A Decree Nisi of Dissolution of their Marriage was granted on 30 November 1995. The wife has subsequently remarried a Mr G T who is aged 48 years and in receipt of an average weekly income of $4,000. That remarriage took place in approximately March 1999. The husband has re-partnered and is residing in the home of his new partner, Miss L whom is a physiotherapist and in receipt of an income of approximately $55,000 per annum.
The parties have two children, namely B T W born on 7 May 1980 who is now aged 20 years and G H W born on 3 April 1986 who is now aged 14 years. B is a student at RMIT University, completing a degree in Business Administration. The year 2001 is the final year of that course before an Honours year if B were to undertake same. G is a student at M College and she commenced there in Year 7. She is now in Year 8. Both children reside with their mother, B having no overnight contact with his father and G having contact for 105 nights last year. Her contact is alternate weekends Friday to Monday and one half of all holidays with other special occasion contact and contact by agreement. Both children have a loving relationship with each of their parents.
The parties signed a child support agreement with respect to the support of their two children dated 12 September 1995. That agreement however, was not registered until 1 May 2000.
Applications
Although the wife issued an amended Form 3 application and the husband responded with a Form 3A both parties agreed that what the Court was being asked to do was vary a child support agreement pursuant to Section 98 of the Child Support (Assessment) Act (1989). Thus, I treated the matter as if a Form 63 emanating pursuant to that legislation with respect to variation of the child support agreement together with any arrears. With respect to the adult child maintenance order sought, I considered that matter pursuant to Section 66L of the Family Law Act 1975.
The wife sought an enforcement of arrears pursuant to the child support agreement from the date of registration being the 1 May 2000 to the date of hearing or in the alternative, that I backdate the payment sought of $200 each week together with one half of the claimed non-periodic amounts to the date of registration.
The husband reduced the amount payable pursuant to the child support agreement in or about February 1998, to the sum of $100 per week. This was a unilateral decision. He was to have continued paying a periodic payment of $186 per week which was CPI indexed and factored in the private school fees of both children. The calculation of it was that as B ceased attendance at private school, G would start.
The husband argued that there would be 30 weeks of arrears at $45.00 each week (given that he had paid $100 each week) making arrears of $1350 which he sought be assessed at nil. This was if the Court accepted his weekly payments for G should be in the sum of $145.00 per week. The wife argued that the appropriate amount to be paid was $197.34 each week and thus pursuant to the agreement the arrears were $97.34 x 30 making arrears of $2,920.20.
Evidence
Findings of fact on disputed issues are made on the balance of probabilities. In these reasons statements of fact should be taken as findings of fact.
The husband’s Statement of Financial Circumstances indicated a gross income of $939. In giving evidence, the husband confirmed this as being a true statement of his income, i.e. $48,828 gross per annum.
The true position of the husband’s income was that as from the 30 July 2000, he was in receipt of a total remuneration package of $70,225 such figure being discovered by the wife by subpoena to the Department of Education, Employment & Training and tendered in evidence. In addition to that total remuneration package, the husband, since April 1994, had received additional payments of salary leave loading; higher duties pay; special skill allowances; and performance pay. Each of those additional payments did not apply in each and every year, but in the 1999-2000 year, the husband received a salary leave loading of $701.80 together with performance pay of $8,061.28. This was in addition to those monies contained in his total remuneration package. However, the total remuneration package included in the year commencing the 30 July 2000, an amount of $6,011 by way of compulsory employer superannuation contributions. The husband “packaged” his salary so that the gross income in his group certificate for the year ended 30 June 2000, was an amount of $58,516.86. That did not include any additional payments which were made.
Thus, details pertaining to the husband’s salary packaging did not derive from any documents filed by the husband and in particular, were not disclosed in his Statement of Financial Circumstances. The wife was required to issue a subpoena to ascertain the true status of the husband’s income.
The wife worked full time from 1994 before going on long service leave at the end of 1998. She suffers from a significant mental illness and gave evidence that she found it difficult to maintain her life and a full time working life. She was hospitalised in relation to her mental illness in 1997 and again in 1999 for six weeks. The wife’s evidence as to her income to the year ended 30 June 2000 was that she earnt about $25,000. In the preceding year she had earnt $43,500. The decrease was due to her change from full-time to part-time employment. As a full-time employee she had used considerable sick leave entitlements as a result of her mental illness.
The wife’s unchallenged evidence was that $488 each week was expended to maintain G, inclusive of the school fees at M COLLEGE. Tendered in evidence were various accounts and receipts relating to the wife’s payment for treatment received by G from S T, Orthodontists. The wife’s evidence was that she and her current husband pay $130 each month in relation to these ongoing costs and that these costs shall continue over the next couple of years. This is approximately $30 per week (not included in the total amount of $488). Despite the reference in the child support agreement to the husband contributing to non-periodic expenses, such contribution was to be by agreement between the parties. The evidence was that the husband has not at any stage agreed to make a contribution to extra schooling, dental or health expenses incurred.
B has been living with his mother throughout the year 2000 and does not stay overnight with his father. He had previously spent some considerable time staying with his father overnight, but this ceased when his father no longer had accommodation for him upon moving into his current premises and accordingly, he spends his nights at his mother’s home. Although the wife says that it is her pleasure to have her son residing with her all the time, her evidence was that she had no input to this determination. The wife’s evidence was that the husband had given B approximately $200 in the last year. The husband’s evidence was that it was about $900. What is clear is that no payments have been made to the wife for B’s support since March 1999 when he commenced to spend every night with his mother. Indeed, not since February 1998 as asserted by the wife and eventually conceded by the husband upon the sighting of documentary proof from the wife. She stated that B had quite a credit account with her and her husband and that he was paying it back. He had the use of his mother’s car and he was applying his funds to the costs of registration and insurance of the motor vehicle and any necessary maintenance work.
The wife’s evidence as to the duration of B’s course was that in the year 2001 he will commence in the final year of his course, although he may do an Honours year or another degree. It was necessary for her to maintain him for him to complete his course as indeed it had been in past years.
The wife’s unchallenged evidence was that the cost of maintaining B was in the sum of $204 each week. The wife’s evidence was that the expenses as stated by her underestimate the actual cost to her of B’s maintenance and that her estimate was on the conservative side.
B currently has employment. His employment started one month ago; is approximately 35 hours each week and he is in receipt of $15.65 gross per hour. The expectation is that work is available to him until Christmas. Thereafter it is uncertain, although Ms L’s evidence was that there may be 25 hours a week employment for B throughout January and February 2001. Ms L is a physiotherapist and manager of S E Services, B’s employer. Ms L could not say that B has permanent work. His studies, she agreed, may preclude him from being gainfully employed in any event. The husband conceded that B’s income would be spent on him socializing and that were B residing with him, he (the father) would be responsible for his day to day living expenses without contribution from B.
Evidence of Dr R P
Doctor P is a consulting psychiatrist. He has treated the wife for almost 20 years on and off.
The wife suffers from a bipolar condition, namely a manic-depressive psychosis. Dr P referred the wife to another psychiatrist in 1991, as he felt that hers was a complex case requiring a more senior psychiatrist. Over the years he noticed that the wife’s anxiety had not changed nor her bouts of psychiatric depression. He was not specifically aware of her diagnosis in the early years but subsequently commenced her on Lithium from which she received considerable benefit. In addition, he had diagnosed her as having a multiple personality disorder.
Dr P saw the parties around the time of separation. The wife was suicidal and subsequently took an overdose. His evidence was that she was not coping over the years. In 1996 and 1997 he had been seeing her twice a week and some times more regularly and helping her to cope which together with her medication was an important part of her being able to remain at work. He said the stresses of her work were causing her to suffer from “a perpetual nervous breakdown” but she continued out of economic necessity.
Dr P recommended the wife not work full-time more than 2 years ago. He said that she had been taking a lot of sick leave; coping poorly; having difficulty with the children at home; and that under those circumstances she ceased work full-time.
Dr P believes that the wife struggled on with full-time work with considerable input from her psychiatrist. He says she is unfit for full-time work and that there came a time when she simply could not carry on any more.
Dr P gave his evidence in a straightforward and concise manner. He was an impressive witness and I accept his evidence in its totality.
Evidence of the husband
The husband was sure in his own mind that he had ceased payments in October 1998 for B but he then conceded that having viewed the wife’s documents that in fact it was February 1998 as asserted by the wife.
The husband no longer requires a car as part of his salary packaging and sold same. He currently has as a result an amount standing to his credit of approximately $2,100 gross with Accountants which he did not disclose in his Form 17. He was also very coy in his response as to the car situation in his household. The reality is that his de facto is provided with a car from her place of employment and there is a family car between them. He therefore did not need a third car.
The “cashing in” of the car part of his salary package provides extra funds to the husband. The amount is $10,957 per annum or $110 net each week. In addition, there is now no fringe benefits tax providing a further $3,285 per annum of $63 net per week (total $173). The performance bonus of last year also provided a further $153.85 per week or if taxed at the rate of 47.5% an amount of $80 per week net. The husband did not believe he would be paid a performance bonus this year. This would be contrary to the husband’s receipt of same in the last 5 financial years. If he does receive it it results in the husband having an extra $253 net each week above his normal rate of pay.
The husband contributes himself to his superannuation fund in addition to the monies provided by his employer by way of compulsory contribution. The husband’s contribution is in the sum of $5,096 per annum of $98 each week. This is not a necessary expense.
At the time of entering into the Child Support Agreement in 1995, the husband was on a package of $57,000. It has over the years increased and is now $70,000 together with performance payments. However, the husband unilaterally reduced his Child Support payments from $186 a week, as he was then paying, to $100 a week in February 1998 because he determined “he was broke” and because he had been to the Child Support Agency to discuss the level of his payments. Of course, he was in fact receiving more money than in 1995 and from March 1999 did not have B overnight.
The husband presented as a witness who had some difficulty with an accurate perception of things. He was not / is not “broke”; he has recently holidayed in Sorrento (September 2000) and Queensland (June 2000) although his evidence as to holidays was initially “it’s been a while”; he “struggled with the fact” of the wife’s part-time employment status even after hearing the evidence of Dr P - he remained unaccepting of the wife’s health problems precluding her from full-time employment. He had difficulty conceding his salary package and what it could mean in “cash” terms.
The husband deemed it necessary to cross-examine Dr P even though the husband knew of the wife’s long standing mental illness and its severity. Furthermore, the wife, regardless of her income, was only seeking that the husband pay half of (or slightly less) the children’s expenses. Even had she worked full-time, at $43,500 gross per annum her income would have been considerably less than that of the husband but nevertheless she simply sought an equality of contribution. The cross-examination of Dr P was unnecessary and defied belief. I think it inequitable to do anything other than order the husband pay those costs.
The husband’s expenses were challenged as he resides in his de facto’s home, pays rent but also contributes to the costs of fencing, roofing and gardening. His evidence was that he pays $55 per week rental although in his Form 17, he deposed to $75 per week. His explanation for this discrepancy was “it’s going to increase”.
The husband claimed to have an income of $939 and expenses of $972 ie. a deficit of $33 each week. Having sold his car, he now has additional salary of $173 ie. a surplus of $140. He may have a further $80 each week in performance pay. He can cease his superannuation contribution of $98 each week and reduce his loan repayments if not pay them out. His expenditure with respect to home improvement/maintenance items on his de facto’s home appear unnecessary given his lack of equitable interest in the home. The husband was simply not forthcoming and evasive about his income.
The child support agreement was not registered until 1 May 2000 and the husband did not:
a)Seek to vary same; nor did he
b)Comply with terms of same.
I find that he had the capacity to do so and simply assumed his will would prevail. The wife kept a payment back from him to force him to pay arrears. The husband had engaged in similar tactics - although he objected strongly to the wife’s - when withholding child support payments due and owing to him. The husband was not forthcoming as to his financial position. By comparison with the child support tables he has paid considerably less than a parent on his income with two children to maintain. There is no reason for him to not make good the arrears pursuant to the Child Support Agreement. The husband’s own evidence is not that the terms of the agreement were ambiguous but that he was “broke” and not able to afford more than $100 each week. He understood that the amount provided for was to continue and enable G to complete a private school education, an opportunity afforded to the parties son.
The wife was an impressive witness. I found her to be truthful. She has borne the financial burden of the support of the children with the husband unilaterally reducing his payments at a time when she was struggling to keep working full time and the husband’s income was increasing. Even at the hearing, the husband showed no understanding or perception as to the inappropriateness of his actions. He did however concede that his writing to the wife seeking an interest payment due to him whilst she was hospitalized as a result of her mental illness in late 1999 was perhaps insensitive.
The husband should not have had to issue his Enforcement Summons. The wife should not have had to seek payment of arrears. No award of costs is therefore appropriate as against the other.
I find that it is just and equitable and otherwise proper to make an order varying the Child Support Agreement to require the husband to pay an amount of $200 each week together with one half of G’s orthodontic expenses of approximately $30 each week. Each of the parties are liable to maintain their child and the wife - who is the lesser income earner by some considerable margin - seeks the husband make a contribution of one half - in fact less. I find the husband has the necessary income to make such a contribution and that his commitment to the support of himself does not preclude this level of support. I am of the same view with respect to his support of the parties son and take into account the total cost to the husband when looking at his disposable income and necessary expenses.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
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