Child maintenance where no child support

Child maintenance where no child support

Pascoe & Pascoe [2016] FCCA 1401 (16 June 2016)

Child maintenance

85. The parties accept the reality that the Child Support (Assessment) Act 1989 (“the Assessment Act”) is not applicable to their children because the father is not residing in Australia and he is not liable to pay income tax in Australia.^[48]In that regard, sections 10 and 12(3) of the Assessment Act are relevant.
86. Section 66C of the Family Law Act 1975 provides that both parents have a “primary duty” to maintain their children. That duty:
    • is not of lower priority than the duty of the parent to maintain any other child or another person;
    • has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself or any other child or another person that the parent has a duty to maintain; and
    • is not affected by the duty of any other person to maintain the child or any entitlement of the child to an income-tested pension, allowance or benefit.
87. Section 66K of the Family Law Act sets out the matters that the Court must take into account in determining the respective financial contributions of the parents towards the financial support necessary for the maintenance of the children. However, the child support assessment regime can be of assistance at times when determining what child maintenance orders should be made in certain circumstances.^[49]

Discussion – child maintenance

88. At Part N of her Financial Statement, the wife lists the children’s expenses at $840 per week.
89. Section 66J(2)(b) enables the court to have regard to relevant findings of published research in relation to the maintenance of children “to the extent to which the court considers appropriate in the circumstances of the case”. In that regard, the well-known “Lovering tables” (updated to June 2015) would suggest that the costs for two teenagers and a seven year old would be in the vicinity of $534. However, the calculations in those tables do not include expenses for housing, transport, school fees and uniforms, or medical and dental expenses. It is therefore not surprising that over the years Courts have tended to prefer the approach adopted in the equally well-known “Lee tables”.^[50] The Lee tables show the costs for two teenagers and a seven year old to be in excess of $1,000 per week.
90. The parties’ eldest child earns an income working part-time in his uncle’s (omitted) business. It is in the vicinity of $60 per week. However, I note that he is saving that money in order to put it towards the expense of a voluntary overseas mission associated with his church after he turns 18. I therefore propose to exclude his meagre income from my consideration of the children’s maintenance needs, particularly as the husband showed some reluctance to contribute towards the eldest child’s expenses for that overseas volunteer work. When I put it to him that he had not properly answered a question in cross examination, his response was that the eldest child “would be encouraged to pay for his own mission himself”.^[51]
91. As mentioned above, the husband earns $2,127 per week tax-free. His Financial Statement reveals that, excluding the BMW loan payments (which I have concluded he is not paying) and child maintenance, his total expenses per week are $1,562. However, I have found on the balance of probabilities that the husband has significant additional resources available to him, so it must follow that I find he has a greater capacity to pay child maintenance than his Financial Statement reveals.
92. The wife’s affidavit reveals that she has an income of $1,907 per week (excluding Family Tax Benefits^[52] and child maintenance paid by the husband). Her expenses are $780 for income tax, $22 for car insurance, $11 for car registration and $235 for other living expenses for herself. The total is $1,048, so she appears to have “spare capacity” of $859 per week. However, that is clearly deceptive because that income was based upon her working five days per week and that was only available to her until the end of Term 2 in July 2016. She was hopeful of renegotiating additional days per week but she is only guaranteed three days per week.^[53]
93. In addition, the wife is not paying any expenses for rent or mortgage. That is because she and the children have been living with the wife’s parents since their return to Australia. The wife’s unchallenged evidence is that she and her daughter share a bedroom and her two sons share another bedroom. Clearly, that is an unsatisfactory housing arrangement (when compared with that of the husband) and I note that the wife states that she hopes to receive a settlement that would enable her to obtain her own accommodation in the same area.^[54] The husband lives in a three-bedroom house and does not appear to have any other person living with him.
94. The wife obtained information in relation to administrative assessment of Child Support from the website of the Department of Human Services.^[55] The results were that, if the Child Support (Assessment) Act 1989 applied, the husband would pay:
    • $507 per week for three children;
    • $412 per week for two children; and
    • $239 per week for one child.
95. When I take the matters set out above into account, I am of the view that it is appropriate for the husband to pay maintenance for the children at the rate of $200 per week per child. That will ensure that that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of their parents and that the parents share equitably in their support.^[56]
96. I also conclude that the maintenance should be adjusted annually in line with movements in the Consumer Price Index (“CPI”) in order to obviate the need for the wife to seek future adjustments that may arise from cost of living increases.
97. In the first instance, the child maintenance will be payable monthly at the rate of $2,600 commencing on 1 July 2016. It will continue to be payable at that rate until varied because of a number of factors, including:
    1. a CPI adjustment;
    2. a child no longer being eligible for such maintenance (e.g. by turning 18); or
    100. the Child Support (Assessment) Act becoming applicable (e.g. by the husband returning to live in Australia).