W & W
[2005] FMCAfam 295
•8 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2005] FMCAfam 295 |
| CHILD SUPPORT – Departure from administrative assessment – income earning capacity, property and financial resources – importance of considering whether assessment ‘just and equitable’ rather than limiting consideration to a comparison of income amounts. CHILD SUPPORT – Departure from administrative assessment – income earning capacity, property and financial resources – section 117(2)(c)(i) not restricted to cases where income amount differs from assessed income amount. |
Child Support (Assessment) Act 1989, s.117(2)(c)(i)
Clauson & Clauson (1995) FLC ¶92-595
DJM v JLM (1998) FLC ¶92-816
Garnaut v Child Support Registrar [2004] FCA 1100
Gyselman & Gyselman (1992) FLC ¶92-279
Hides & Hatton (1997) FLC ¶92-759
Humphries and Humphries (1993) FLC ¶92-430
Portillo and Portillo (1994) FLC ¶92-484
Ross & McDermott (1998) FLC ¶98-003
S & C (1997) FLC ¶92-750
Sheahan and Sheahan (1993) FLC ¶92-375
Woollams and Woollams (2004) FLC ¶93-195
| Applicant: | PW |
| Respondent: | AW |
| File No: | DGM 1483 of 2002 |
| Delivered on: | 8 June 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 25 February 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Ms PW appeared on her own behalf |
| Counsel for the Respondent: | Ms McCreadie |
| Solicitors for the Respondent: | Perry Weston |
ORDERS
That the child support assessment be departed from.
That the weekly rate of child support be set at $50.00 (for the period
10 August 2004 to 30 September 2006).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGM 1483 of 2002
| PW |
Applicant
and
| AW |
Respondent
REASONS FOR JUDGMENT
The applicant in this case is the mother of one child SW, born 2 July 1993. The respondent is the child's father. The parties separated some time ago.
The child support assessment that is currently in force is for the sum of $1,560.00 per annum for the period 10 August 2004 to 30 September 2005. This assessment rate was set by a senior case officer at the child support agency acting under Part 6A of the Child Support Assessment Act 1989 (‘the Act’) on 10 August 2004 in a decision on an application by the applicant in this matter.
The Law
The considerations relevant when determining whether or not to depart from a child support assessment are set out in section 117 of the Child Support (Assessment) Act. The appropriate approach is set out in Gyselman & Gyselman (1992) FLC ¶92-279 where the Full Court of the Family Court said (at 79,064):
The structure of that section is that s 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
1. Whether one or more grounds of departure in s 117(2) is established.
If so:
2. Whether it is ``just and equitable'' within the meaning of
s 117(4) to make a particular order.
3. Whether it is ``otherwise proper'' within the meaning of
s 117(5) to make a particular order.
It is clear from the careful way in which s 117 has been structured that the Court must address each of those three separate issues.
With respect to the meaning of ‘special circumstances’ the Court said:
Whilst it is not possible to define with precision the meaning of that term [‘special circumstance’], as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. ... That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. ... In Savery’s case (1990) FLC ¶92-131 (p 77,897), Kay J ... said that “`special circumstances'” were “`facts peculiar to the particular case which set it apart from other cases”'.
In Sheahan and Sheahan (1993) FLC ¶92-375 the Full Court said that the ‘relevant facts of the particular case must be considered to determine whether they constitute special circumstances which ... if not taken into account, would result in injustice or undue hardship to any person’.
The applicant says that in the special circumstances of this case the assessment is unjust and inequitable because of the income earning capacity, property and financial resources of the respondent, relying upon section 117(2)(c)(i). Section 117(2)(c)(i) is in the following terms:
2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of either parent or the child;
It is clear that this provision cannot be read simply by comparing the income or earnings of the payer to the child support income amount income figure struck by the Child Support Agency. Rather, one must have regard to the extended definition of ‘just and equitable’ in order to determine whether or not the administrative assessment produces a ‘just and equitable’ determination of the child support to be paid by the liable parent having regard to the income earning capacity, property and financial resources of that parent.
That s.117(2)(c)(i) is not limited to changes in income amounts in isolation is apparent from the open ended nature of the concept of a ‘special circumstance’ and the many factors that are relevant when determining what is a ‘just and equitable’ in each particular case. For example, in Portillo and Portillo (1994) FLC ¶92-484 and S and C (1997) FLC ¶92-750 lack of notice of a child support liability was a ‘special circumstance’ in the context of the particular cases even though there was no significant difference in the payer’s child support income amounts and actual earnings. Whilst these cases did not specifically identify which sub-section of sec 117 was relied upon it appears clear that it was s.117(2)(c)(i).
In Hides & Hatton (1997) FLC ¶92-759 the Full Court stated that:
It was also made clear in Gyselman (1992) FLC ¶92-279 that when the Court is considering whether it is just and equitable within the meaning of sec 117(4) to make a particular order, the Court is required to undertake the task of considering the matters set out in paragraphs (a) to (g) of that sub- section, and in this regard the Full Court said as follows (at 79,078):
However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the sec 117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).
The husband’s case was largely based upon a reliance on the reasons and findings of the Child Support Agency decision makers. As such a review of the Part 6A decision and the objection decision under Part 6B is required.
CSA Departure decisions
In this case there has been a decision under Part 6A of the Act, by a Senior Case Officer, and an objection decision under Part 6B of the Act. It is curious that the objection decision maker also describes himself as a Senior Case Officer.
The case before the first senior case officer was based on two propositions: first, that the child had expenses that significantly affected the costs of caring for him in order for him to be cared for, educated or trained in the manner expected by the parties. In this regard the applicant referred to expenses with respect to Karate lessons, swimming, Greek school and seeing-eye glasses. The senior case officer found that a number of these expenses did not appear to be a ‘special circumstance’ in that they were not special or unusual. She did, however, find that the seeing-eye glasses purchased for the child were a special circumstance in the context of this case, that is, in the context of a child support assessment at the time of the departure application of $1,110.00 per annum.
The case was also put to the first senior case officer on the basis that the child support assessment did ‘not take into account Mr W’s income, earning capacity, property or financial resources’. This short form statement is the pro forma heading used by the senior case officers in the notice of decision. Unfortunately it does not accurately reflect the terms of section 117(2)(c)(i) of the Act which is set out above.
The statement of the ground, as it actually appears in section 117(2)(c)(i), must be read bearing in mind that the words ‘unjust and inequitable’ have themselves a lengthy definition provided for in section 117(4) through to section 117(9). These sections provide as follows:
(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, earning capacity, property and financial resources 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.
(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.
(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.
(7) In having regard to the income, earning capacity, property and financial resources of the child or a parent of the child, the court must:
(a) have regard to the capacity of the child or parent to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child or 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.
(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
The senior case officer concluded that the respondent did ‘have resources available to him or is able to order his affairs such that it would allow him to provide support to S at a slightly greater rate than the minimal rate presently paid’. The senior case officer then concluded that it was ‘just and equitable’ and ‘otherwise proper’ for the assessment to be increased to its present rate. The increase was to a rate that the respondent offered to pay during the child support departure conference. It seems that the only evidence before the Senior Case Officer on this issue was the father’s offer.
The applicant then lodged an objection with the Child Support Agency stating that she objected to the determination by the senior case officer and sought a higher rate of Child Support. She set out that:
‘I request this amount, taking into consideration the fact that the liable parent is financially advantaged by his wife's income, (ie: shares his expenses).’
The objection was then determined by an objections officer under Part 6B of the Act.
The proper purpose and function of the objection process is a full merits review. ‘On merits review it is necessary for the decision-maker to reach what is “the correct or preferable decision”, see Garnaut v Child Support Registrar [2004] FCA 1100.
The objection decision is set out in a document headed ‘Notice of Decision on Objection’. The objection was disallowed.
The objections officer recounts the ground of objection, that Mr W shares expenses with his current wife and therefore has a greater capacity to contribute to S’s costs.
The objections officer appears to have abandoned a consideration of the various factors provided for under section 117(2), and (4) through (8) in favour of a consideration of whether or not the relevant assessment is ‘fair’. The objections officer concluded that:
Whilst Mr W is married and therefore shares expense with his wife, his wife's income is not an issue that can be considered by the CSA.
As to Mr W's capacity to pay additional child support because of sharing expenses, just because a parent may appear to have additional capacity to pay child support does not mean it should automatically be directed to child support. There must be a reason established for doing so.
During his conference with [the SCO], Mr W offered to pay some $30 per week to support S. This equates to some $1560 per year. As this amount is more than the formula assessment, it indicates Mr W has financial resources not fully reflected in the assessment.
Reason 8 is established.
The objections officer’s consideration of this ground of objection under s.117(2)(c)(i) was entirely unsatisfactory in that:
a)The ‘income, earning capacity and financial resources’ of Mr W’s current wife are relevant to a number of important questions:
i)It affects any potential liability Mr W may have to support his current wife: see s.72 of the Family Law Act, 1975 Clauson and Clauson (1995) FLC ¶92-595 (importantly, separation is not necessary for the duty to arise: see Humphries and Humphries (1993) FLC ¶92-430 at p.80,398).
ii)It affects the amount of the contributions that would be reasonably expected of Mr W to support their children (the relevant dependant children): see ss.4(2)(a) and 44 of the Child Support (Assessment) Act 1989.
iii)Mr W’s current wife’s income will also be relevant to a consideration of the extent to which he can reasonably share his day to day living expenses: see, for example, the considerations in Woollams and Woollams (2004) FLC ¶93-195 at para 117.
All of these matters are clearly relevant when considering ss.117(4)(a), 117(4)(e) and 117(4)(g)(ii) of the definition of ‘just and equitable’ under section 117(2)(c).
b)In the context of this case it misses the point to state that
‘just because a parent may appear to have additional capacity to pay child support does not mean it should automatically be directed to child support. There must be a reason established for doing so.’
What must be established is the ground under s.117. There was never any dispute in this case that the child has financial needs far greater than the assessment amount, which were not able to be met by the applicant. As a matter of fundamental principle, child support (and maintenance) is based upon the needs of the child and the capacity of the parents to meet that need (see ss.3 and 4 of the Child Support (Assessment) Act 1989). The needs of the child and the ability to meet those needs lie at the hear of a ‘special circumstance’ under s.117(2)(c)(i) of the Act. The only real issue in this case was the capacity of the respondent to assist in meeting the child’s financial needs.
c)There is no consideration of (at least) the more significant factors set out in s.117 (a slavish recounting of every factor not being required: see Ross & McDermott (1998) FLC ¶98-003).
d)The uncritical reliance upon the offer of the respondent as demonstrating the full extent of his capacity to contribute to the financial needs of the child was the very point of the objection, yet is blandly repeated by the objections officer without any independent consideration of the respondent’s capacity.
The objections officer then went on to determine what is an appropriate change to make to the child support assessment. In determining what would be an appropriate change to the assessment, the objections officer has returned to a question of whether or not he thought the decision was ‘fair’ and did not embark upon any proper consideration of the matters set out in section 117 to determine what was ‘just and equitable’. Indeed it is not even clear whether or not the objections officer has attempted to consider those factors.
The parties did not receive a proper re-consideration of the Part 6A decision on the objection. As a result a departure application has now been made in this court. For the reasons set out above I do not find the objection decision persuasive in this case.
The effect of the child support formula
In this case the child support assessment, if the formula were to be adopted, would be calculated on the basis of an income on the part of Mr W of $32,404.00 per annum (his 2003/2004 taxable income) less an exempted income amount of $26,236.00.
The ‘exempted income amount’ is calculated on the basis that Mr W has two dependent children living with him who are not children of the applicant. Under section 39(1), the exempted income amount is the total of 220 per cent of the annual amount of the relevant partnered rate of social security and the additional amount provided for under section 39(2) for each child (the additional social security that would be payable to a person supporting a child of the corresponding age). The precise social security items are identified in the definitions provided for in section 5 of the Act.
The exempted income amount in the formula is set by reference to the basic living expenses required for a couple with two children the ages of the relevant dependent children of Mr W in this case. The same exempted income amount would apply under the formula, regardless of the actual income earned by his current spouse. This is significant in the present case because the respondent’s wife earns $1,100.00 per week working as a police officer. This is equivalent to approximately $57,200.00 per annum. It should be noted, however, that in cases where the relevant dependant children are cared for by a single parent, the additional expenses in caring for the child (without the support of a partner) may commonly result in a finding that no ‘special circumstance’ is established under this ground.
The calculation of the exempted income amount in this case, by the very nature of its components, necessarily indicates a presumption of a dependent wife and dependent children. This is certainly a more common factual scenario in cases where persons have repartnered and had subsequent children. What makes this case different to the more common case scenario is the extent of the respondent’s current wife’s actual ability to contribute financially to the needs of the relevant dependant children, and his ability to shared expenses with her.
Put more simply, it is clear that the extent of a person’s obligation to support children is assessed having regard to the other parent’s financial resources. This is taken into account in other formula calculations. For example, one can compare the assessments if a person were obliged to pay child support for children (of the ages of the respondent’s children) if none of the children lived with him.
a)Child Support calculated as if the carer earned only $25,000 per annum:
Respondent's Income Amount $32,404 less Exempted Income Amount ($12,950) Adjusted Amount $19,454 Carer’s Income Amount $25,000 less disregarded income amount ($38,168) Excess Child Support Income $ nil. 50% of Excess Child Support Income ($ nil) $19,454 Child Support % per child (1/3 of 32%) 10.65% Child support rate (per child per wk) $ 39.89 (b)Child Support calculated as if the carer earned $57,500 per annum:
Respondent's Income Amount $32,404 less Exempted Income Amount ($12,950) Adjusted Amount $19,454 Carer’s Income Amount $57,500 less disregarded income amount ($38,168) Excess Child Support Income $19,314. 50% of Excess Child Support Income ($9,657) $9,797 Child Support % per child (1/3 of 32%) 10.65% Child support rate (per child per wk) $ 20.00
The result is that if regard is had to the ‘legislatively fixed standards’ for child support, as required by sec 4 of the Act, the obligation of the payer is significantly reduced in cases where the other parent has an income well over the disregarded income amount, but only if they are separated.
As can be seen from the above calculations, the child not residing with the applicant at present would receive more financial support if the applicant were living on his own and obliged to pay child support for all three of his children.
The resolution of such issues (where there appears to be some anomaly in the formula result) lies in section 117(2) of the Act which provides for departure from the administrative assessment in limited circumstances. This is because such outcomes of the formula are the result of ‘special circumstances’ of the parties: no formula will adequately deal with the immense variety of circumstances of children and parents in the community.
However, formula analysis, of itself, cannot demonstrate a ‘special circumstance’ under s.117(2) but only indicate that careful analysis of the case is required. Indeed, it is important to be aware that such formulaic calculations can easily distract one from the true issue, which is whether or not there is a ground under section 117.
In determining whether there are ‘special circumstances’ in this case one must have regard to the matters set out in section 117(4) through (9).
The peculiar circumstances of this case effectively result in one of three children receiving a far lesser contribution towards his day-to-day financial needs from his respondent than the respondent’s other two children. This does not sit well with section 3 that provides the duty of a parent to maintain a child is not of lower priority than the duty to maintain any other child or another person and the object of section (4) that parents with the like capacity to provide financial support for their children should provide like amounts of financial support and the children share in changes of the standard of living of both their parents. In this case, not only is the child with the applicant not receiving a level of financial support in like amount to that of his two half siblings, but this is occurring in circumstances where his applicant has less financial capacity to support him than his half-siblings’ mother has to support them.
I am satisfied that the applicant has demonstrated a ‘special circumstance’ in this case.
Is the assessment ‘unjust and inequitable’ because of the respondent’s income?
I now turn to consider the matters relevant to the term ‘just and equitable’ as it is used in s.117.
Parents have the primary obligations to maintain their biological children. In this case the parties have the primary obligations to maintain the child the subject of the assessment. In addition it is relevant that the respondent and his current wife have the primary obligation to maintain his other two children. Importantly, the respondent’s current wife has no obligation with respect to the maintenance of the child the subject of this assessment.
The proper needs of the children are demonstrated by the material set out in the financial statements of the parties. It is clear that both parties have provided realistic estimates in what appears to be relatively frugal living expenses. The applicant sets out that in her estimate the weekly expenses referable to maintaining S are $233.00 per week. The respondent sets out that the expenses he incurs by way of his contribution to maintaining the other two children is $228.00 per week (although $108 per week is child care expenses as the respondent and his current wife work). The respondent contributes $30.00 per week in child support towards the financial needs of S.
On the evidence it appears that the needs of the children in each household are similar. However, the respondent meets half of the financial needs of the children in his current household but only around 1/7 of the needs of the child the subject of this assessment.
S is of an age where he does not have any income and earning capacity, nor does he appear to have any financial resources of his own.
The respondent has an income of $32,404.00 per annum. The applicant says that he has a greater earning capacity if he worked in the signage industry.
In DJM v JLM (1998) FLC ¶92-816 the Full Court of the Family Court discussed issues relevant to determining income and earning capacity in great detail. Whilst it is ultimately a question of fact in each case, it is appropriate to identify relevant considerations in determining this question of fact. In this regard, relevant considerations will generally fall within the following categories:
a)the ability to generate income;
b)the opportunity to generate income; and
c)whether the parent's pursuits are appropriate in the circumstances.
I have no doubt that he has the capacity to earn more in the signage industry, but I am not satisfied that he has the opportunity to engage in that work.
The respondent gave evidence (which was in substance accepted by the mother) that he had brought proceedings against a former employer in the industry, both with private solicitors and with the assistance of his union, recovering in excess of $8000, some years ago. The respondent says that he has applied for a number of jobs in the industry and does not receive any response whatsoever. He believes that he has been ‘black-listed’ informally within the industry. He has obtained alternative employment and works full-time. I see no reason why the respondent would not engage in more remunerative employment if he is working full-time in any event, as the child support percentage in this case is only 18 per cent and would not provide any significant disincentive to earning a greater income amount which would no doubt benefit his present family to a greater extent than it would benefit S.
My view of the respondent when he gave evidence and from his material is that I accept him as being an honest witness and that he has been in the course of these proceedings and the proceedings before the senior case officer attempting to take a reasonable course.
I do not accept that he has a greater income and earning capacity, although the case was pursued on the basis that he would be able to work as a sign fitter.
At present the applicant does not have any current income other than social security, although she states she undertakes some voluntary work. This indicates that she has the capacity to engage in employment. She does not, on the evidence, have any significant skills. I am satisfied that given the age of the child, she has an income and earning capacity. However, I am not satisfied that it would generate more than minimal weekly earnings
The applicant has no current income, and whilst I am satisfied she could engage in some employment, there is nothing to indicate that she would have skills necessary to earn an income greater than the minimum wage.
Each party has commitments necessary for their own support. The applicant says that this comes to $152.00 per week and the respondent $151.00 per week. There is little difference between them on this issue and I accept the figures that they put forward. In addition, the respondent contributes to one half of the mortgage payments on the home in which he lives. The applicant must pay $20.00 per week by way of rates on the home in which she lives.
I also take into account the commitments each parent has to support other children in their household. I accept that at present the respondent contributes to the extent that he sets out in his material for the other two children.
At Part N of the husband’s financial statement he sets out his weekly expenditure as follows:
Item
Total
For You
For Children
Food
$120
$60
$60
Household supplies
$10
$5
$5
House repairs
$10
$5
$5
Gas
$9
$5
$4
Electricity
$10
$6
$4
Heating fuel
$0
$NIL
$NIL
Telephone
$12
$12
$NIL
Motor vehicle
$0
$NIL
$NIL
-petrol
$20
$20
$NIL
-maintenance
$10
$10
$NIL
Fares/car parking
$0
$NIL
$NIL
Clothing and shoes
$15
$5
$10
Children’s activities
$10
$NIL
$10
Child minding
$108
$NIL
$108
Medical, etc
$6
$3
$3
Entertainment/hobbies
$20
$10
$10
Holidays
$0
$NIL
$NIL
Education expenses
$0
$NIL
$NIL
Chemist/pharmaceutical
$9
$5
$4
Gardening
$0
$
$NIL
Cleaning (house/pool)
$0
$NIL
$NIL
Repairs – furnishings and appliances
$2
$2
$NIL
Dry cleaning
$0
$NIL
$NIL
Books and magazines
$0
$NIL
$NIL
Gifts
$5
$NIL
$5
Hairdressing, toiletries
$3
$3
$NIL
Other
$0
$NIL
$NIL
TOTAL
$379
$151
$228
In addition the respondent contributes $164.00 per week to mortgage payments and $11.00 per week to rates. He has insurance expenses of $12.00 per week, Mastercard of $10.00 per week and superannuation of $57.00 per week.
The wife also sets out her weekly expenditure at Part N of her financial statement:
Item
Total
For You
For Children
Food
$100
$50
$50
Household supplies
$15
$10
$5
House repairs
$25
$20
$5
Gas
$15
$7
$8
Electricity
$16
$8
$8
Heating fuel
$NIL
$NIL
$NIL
Telephone
$18
$10
$8
Motor vehicle
-petrol
$60
$20
$40
-maintenance
$20
$10
$10
Fares/car parking
$NIL
$NIL
$NIL
Clothing and shoes
$10
$2
$8
Children’s activities
$31
$NIL
$31
Child minding
$NIL
$NIL
$NIL
Medical, etc
$6
$2
$4
Entertainment/hobbies
$NIL
$NIL
$NIL
Holidays
$NIL
$NIL
$NIL
Education expenses
$25
$NIL
$25
Chemist/pharmaceutical
$15
$5
$10
Gardening
$12
$6
$6
Cleaning (house/pool)
$NIL
$NIL
$NIL
Repairs – furnishings and appliances
$2
$NIL
$2
Dry cleaning
$3
$NIL
$3
Books and magazines
$2
$NIL
$2
Gifts
$3
$NIL
$3
Hairdressing, toiletries
$6
$2
$4
Other
$1
$NIL
$1
TOTAL
$385
$152
$233
I must take into account the direct and indirect costs incurred in caring for the child S, which also requires a consideration of the terms of section 117(8). In this case S is of an age that would reasonably allow some income to be earned by the applicant.
I must have regard to any hardship that would be caused to the child or carer entitled to child support, the liable parent or any other child or another person that the liable parent has a duty to support. In this case there is certainly considerable hardship caused to the child S and the applicant, having regard to the very low level of the child support assessment, in the circumstances where the applicant has a low income.
The respondent’s ability to contribute to the costs of caring for each of his three children is limited. However, the children that are presently living in his household have the support of another adult who earns a considerable income: the same can not be said for the child the subject of the assessment.
I find that in the special circumstances of this case, application of the provisions of this Act relating to administrative assessment result in an unjust and inequitable determination of the level of financial support because the income, earning capacity, property and financial resources of the father.
For the reasons set out above I find that it is just and equitable that the respondent contribute $50 per week to the financial support of the child S. If the respondent and his current wife were to share in their expenses of the mortgage and the costs of caring for their two children in a proportion closer to their income amounts, then it is well within his financial reach to make such a financial contribution for the care of the child.
Child support at $50 per week would also result in some degree of parity of levels of support when one considers the respondent’s day to day contributions to the care of the two children living with the applicant (after child care costs to enable him and his wife to work).
Otherwise proper
In this case, the factors relevant to determining what is otherwise proper have largely been covered above.
In addition I have regard to the fact that at present social security meets most of the costs of caring for S, which is not appropriate if the respondent has some capacity to meet those expenses. I therefore find that the orders I propose are otherwise proper as they require the respondent to contribute to the extent that he is reasonably able to do so.
I must also determine in this case whether or not I should backdate any change to the child support assessment. The wife seeks the change from 1 July 2004. The matter has come before the court promptly, the senior case officer's determination having occurred on the very day of the conference (10 August 2004). The objection was lodged promptly some nine days after the date of the determination. The objection decision was made on 16 October 2004 and these proceedings commenced on 11 November 2004. The matter was not ready to proceed when it first came before the court in mid-December 2004 and the parties were sent to a conciliation conference before the matter came before me on 25 February 2005.
In the circumstances of this case it is not, in my view, appropriate to back date the decision beyond the assessment being altered.
I therefore order that the weekly rate of child support be set at $50.00 per week from 10 August 2004 to 30 September 2006.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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