W and W
[2000] FMCAfam 23
•29 August 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2000] FMCA fam 23 |
| CHILD SUPPORT – Departure – Section 117 Child Support (Assessment) Act |
| Applicant: | P J W |
| Respondent: | H M W |
| File No: | ZB2335 of 2000 |
| Delivered on: | 23 August 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 23 August 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| The Applicant in person |
| The Respondent in person |
ORDERS
That there be a departure from the administrative assessment of child support.
That the rate of child support payable by the mother H M W in respect of the children N N W and T A W be varied, for the period from the commencement of liability to 29 April 2000 to such rate as equates with the amount paid by the liable parent during that period.
That the rate of child support payable by the mother as the liable parent to the father for the period from 29 April 2000 to 30 June 2000 be calculated for the period on an annual sum of $1,628.00.
That the rate of child support payable by the mother as the liable parent to the father for the period from 1 July 2000 to 30 June 2001 be calculated on an annual sum of $1,528.00.
That there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 2335 of 2000
| P J W |
Applicant
And
| H M W |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application brought by the mother H M W seeking an order for departure from Child Support Assessments for the periods:
a)29 April 1999 to 30 June 1999;
b)1 July 1999 to 30 September 2000;
c)1October 2000 to 31 December 2001.
Copies of the assessments for these periods are, for simplicity, annexed to these reasons.
The respondent father has sought that there be no departure and essentially that her application be dismissed. Both parties represented themselves at the hearing of this matter before me on 23 August 2000.
Relevant chronology
These parties and their children N N W (born 10 February 1989) and T A W (born 2 May 1991) have had almost 12 months of continuous litigation. The relevant brief chronology is:
a)3 January 1983.......... Parties commence co-habitation;
b)13 May 1988.............. Parties marry in Durban, South Africa;
c)4 August 1998............ Parties separate;
d)6 July 1999................. Father applies for Administrative Assessment;
e)28 July 1999............... Order by Barry J in respect of arrangements for children;
f)November 1999......... Mother commences property proceedings;
g)17 November 1999... Father enters into loan agreement with Westpac for car;
h)25 November 1999... Mother files contravention application;
i)29 November 1999... Father files Application for Review;
j)30 November 1999... Consent Orders by May J listing of home for sale and for payment of mortgage and maintenance of home to be undertaken by father;
k)17 December 1999... Orders by Lindenmayer J varying the orders of Barry J;
l)12 January 2000........ Father fined $1000 for contempt;
m)21 January 2000........ Wife files further Contravention Application;
n)22 February 2000...... Order of Jerrard J that father vacate house forthwith for failure to comply with order of May J;
o)26 April 2000............. Settlement of Sale of Home.
Assessment history
The attached assessments were the subject of review by the mother’s application made 23 July 1999. On 19 November 1999, Senior Case Officer Buck amended the assessment for the period 1 December 1999 to 30 September 2000. On 11 May 2000 the mother received notice from the Child Support Agency that deductions from the mother’s pay would increase to $173.07 a fortnight being $113.07 for the amended assessment and $60.00 a fortnight being for arrears. The balance of arrears, according to paragraph 17 of the mother’s affidavit (filed 13 July) 2000 was $4289.94 at 19 April 2000.
The law
Section 117 of the Child Support (Assessment) Act of 1989 is the relevant section and sets out a three-stage process for determining departures from child support assessments. Section 117(1) requires the Court to be satisfied that in “the special circumstances of the case” one or more of the grounds for departure outlined in s117(2) exist before the Court can make an order for departure and that it would be just and equitable (within the meaning of s117(4)) as regards the children, the carer entitled to the support and the liable parent and that it would be “otherwise proper” (within the meaning of s117 (5)) to make a particular order. All these issues must be addressed separately (see Gyselman 15FAMLR219).
The issues
The evidence before me consisted of an affidavit by the mother; an affidavit by the father; oral evidence given by both the parties who were subject to cross examination and documents tendered; Also, with the consent and authority of the parties I secured information from the Child Support Agency and a copy of their letter of 29 August 2000 is also annexed to these reasons.
I find that special circumstances do exist in this case and that the applicant has established to my satisfaction that grounds for departure exist because:
a)The mother has incurred additional expenses to meet repairs to the home;
b)The mother has incurred additional expenses to provide for the support of the child and herself.
I find that it is just and equitable to depart from the administrative assessment, because:
a)Whilst the mother’s income is greater and more secure than the fathers, the father does have a greater earning capacity than his current revealed taxable income suggests;
b)The father concedes that he could secure “up to 20 hours of part-time work a week” as a refrigeration mechanic or otherwise with his acknowledged skills;
c)The default by the husband to make payments as ordered by May J, has exposed the mother to additional costs and expenses. I am bound to accept the finding of Jerrard J of 22 February 2000 that there was no reasonable excuse for that breach;
d)Whilst of itself the accumulation of legal expenses and loans for payment of expenses does not justify departure, in the special circumstances of this case, the number and frequency of the litigation events adds, in my view, to my collective opinion that it is just and equitable to depart from the assessment;
e)It would cause greater hardship to the mother’s household if an order was not made in circumstances where, because of the father’s current reduced income and earning capacity, the mother bears the responsibility for additional expenses for the children and expenses incurred from the repair of the house. I accept that any arrears of mortgage payments were discharged on sale of the property;
f)I also find it curious that at a time when the father was embroiled in a number of legal battles and couldn’t (on his version of the facts) pay the mortgage or repairs on the house because of the mother’s default in payment of child support, that he chose to enter into a loan agreement with Westpac Bank for the purchase of a 1997 Mazda sedan which costs him $120.00 per week in repayments. He has, by such actions, in my view:
i)Created hardship for himself;
ii)Given me evidence from which I could reasonably infer that he does have an additional source of income.
For the reasons set out above, I consider it is not only just and equitable ;but also otherwise proper that there be a reduction in the child support assessment. I do not have a capacity to discharge penalties which are administratively imposed under s of the Act, however I would expect that a result of the order I propose to make would be an administrative review of the penalties otherwise imposed.
Effect of the orders
It is my view that the effect of the orders should be such, so as to extinguish the arrears of child support owing as at 29 April 2000 which is the approximate date of the settlement of the house and is the date referred to in paragraph (17) of the mother’s affidavit.
Thereafter I believe, as a result of the changed residence/contact arrangements and my estimation that:
a)The mother’s gross income should be estimated at $867/week;
b)The father’s gross income and earning capacity should be estimated at $350.00 per week (which takes into account part-time work available and some reduction in his government benefits arising from that employment);
c)The current arrangements with the child amount to a definition of a substantial/major case in favour of the mother (as defined in the letter from CSA dated 29 August 2000).
The retrospective assessment from 29 April 2000 to 30 June 2000 should be an annual sum of $1,628.00 and that the prospective assessment from 1 July 2000 to 30 June 2001 should be an annual sum of $1,528.00.
Formal orders
(1)That there be a departure from the administrative assessment of child support.
(2)That the rate of child support payable by the mother H M W in respect of the children N N W and T A W be varied, for the period from the commencement of liability to 29 April 2000 to such rate as equates with the amount paid by the liable parent during that period.
(3)That the rate of child support payable by the mother as the liable parent to the father for the period from 29 April 2000 to 30 June 2000 be calculated for the period on an annual sum of $1,628.00.
(4)That the rate of child support payable by the mother as the liable parent to the father for the period from 1 July 2000 to 30 June 2001 be calculated on an annual sum of $1,528.00.
(5)That there be no order as to costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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