Child support assessment not changed so father can pay bills directly

Child support assessment not changed so father can pay bills directly

Gilbert & Gilbert

1. The matter of Gilbert is an application by a father to break up his current assessed child support payments of $424 per week paid directly to the mother to $200 towards 3^rd party payments and $242 directly to the mother. The husband seeks a substitution order under section 123 of the Act to bring into effect his proposed order.

27. The husband can meet the assessed child support. That is clear from his financial statement. There has been no change in his circumstances that would warrant I review his capacity to pay. He can pay the assessed amount and yet seeks, in the absence of the mother’s consent, to pay part of his assessment to the 3^rd parties he deems appropriate the children’s school and other 3^rd parties, parties which are most unclear to me.
28. Why does he seek to do this?
29. At paragraph 5 he states he has a right to seek this order.
30. At paragraph 7 such an order may assist in him becoming more involved with the children.
31. At paragraph 8 that children ask him for additional things such as shoes, computers, phones, swimming lessons which he asserts he cannot pay. That it is unhealthy for the father to tell the children he cannot pay for these additional items. That by paying costs for their schooling such as camps, etc. directly the children would see that he is contributing to their welfare directly.
32. At paragraph 9 that the school is happy for this to occur and that he will honour the substitution order.
33. At paragraph 11 he has not always been invited to participate in the children education events and by directly paying their schooling costs he would become a “contracting party” and this would give him some “status” in these matters.
34. At paragraph 12 that in the long term a substitution order would bring long term benefits to the children’s wellbeing and overall “fairness of how he and the mother interact financially over the children” despite his acknowledgement that such an order may cause difficulties for the mother’s budgeting.
35. Paragraphs 14, 18, 20, and 25 support the mother’s contention that the father has launched these proceedings to flush out what he regards as her untapped wealth and financial resources for example at paragraph 18.
36. “The subpoena and R25A.08 processes will provide me with a full set of documents as regards the respondents work history and finances”. The husband has already has one bite at the cherry on this issue during his administrative review/appeals through the Agency and at the AAT proceedings which he withdrew from.
37. At paragraphs 15, 16 and 17 he asserts that the mother is not working and earning income to her full capacity and is not committed to full time employment.
38. At paragraph 19 that the mother lives a comfortable lifestyle and is thus underreporting her financial resources or not disclosing her income.
39. At paragraph 20 that the income accepted by the Agency as the respondent’s income grossly underestimates her income and financial resources.
40. At paragraph 22 that the mother has married a man of wealth. That as she lives with him he is a financial resource available to her and the Court ought to make a declaration to that effect which will ground the father seeking re-assessment.

61. Looking as I must to the matters under 117(4), (6), (7), (7)(a) and (8) of the Act^[28] if I was to exercise my discretion under section 123 of the Act^[29] I find as follows.
62. The Gilbert children have two parents each able to support them. An assessment has been made of the level of support to be paid by each parent based upon their respective incomes and financial resources, number of nights in each parents care and any other special needs relevant to a child support assessment such as private school fees etc.
63. Their father earns a significant income of some $164,000 per annum and has no impediment to paying his assessed child support. The father has taken this matter through the various administrative procedures available in the Child Support Scheme and his current assessment arises after he withdrew his Appeal to the Administrative Appeals Tribunal. He is clearly not satisfied with the Agency’s determination however he has pursued his remedies.
64. The father now seeks a substitution order to pay 3^rd parties monies up to $200 per week for the support of his children and thus reducing the money received by the mother by $200.
65. This application must fail as it has no reasonable prospects of success for the following.
66. Taking his evidence at its highest I have no idea how the figure of $200 was arrived at and most importantly for what expense/s of the children it will be used. The father has not specified how the figure of $200 had been arrived at for example he is not paying a known amount for school fees, or for music lessons etc.
67. He has plucked a figure out of the air. He would, I suspect just spend the $200 or less on what he thinks is appropriate. To have had any chance of succeeding the father needed to identify an ongoing cost for the children and attach that cost to his figure of $200. He would need to demonstrate how the $200 would be spent for the support of his children and he has not and for that reason alone his application would fail and his application ought to be summarily dismissed. However, there are additional reasons why his application is doomed.
68. It is clear to me that the gravamen of the father’s complaint is that he believes the wife is not maximising her income and thus maximising his child support. This failure is both her laziness in not pursuing full time work as he sees it and that her husband is an unexercised financial resource. This is clear from his affidavit and his failure to specify at all the expenses he will pay to 3^rd parties for his children benefit. Thus his application under section 123 of the Act^[30] is of itself an abuse of process for it was the vehicle by which he sought to yet again revive processes to change the payment by him of child support because he is clearly unhappy with the administrative process which he has now exhausted.
69. Looking at section 124(1) of the Act^[31] and again taking the father’s evidence at its highest he has not and cannot satisfy me that it is just and equitable as regards the children or the mother to make a substitution order or that it is otherwise proper. Indeed the reverse is true namely if I granted a substitution order I would be perpetrating an injustice and inequity on the children and mother. What would occur is that the mother would have $200 a week less to spend on the needs of her children and the father would receive a windfall of $200 a week to spend or not spend as he saw fit. Such an outcome would not be otherwise proper and would operate unjustly on the mother and the children.
70. Thirdly, there is no basis on the facts or at law that would impel me to exercise my power to make the declaration as sought. To do so would be a gross miscarriage of justice to the mother’s husband and be totally at odds with both the Child Support Legislation and the Family Law Act 1975 in relation to child maintenance which is that parents have the primary duty to support their children and no other parties. These children have parents who not only have the primary duty to support them they do so and that is the end of the matter.

72. The father is seeking merely to reduce the child support he pays to the mother and asserts I should assist him by using the Court’s power to make a declaration. There are very specific applications and evidence required to be filed to support the entertaining of an application to vary/reduce assessed child support and how it is paid and to whom and the father has failed to file such an application or produce any cogent evidence to support such an application.
73. As an aside if the Court had the power to declare a parents spouse a financial resource to them for child support purposes then in this case the father’s wife and her income would also be a financial resource to the father and thus the lid of Pandora’s Box would be well and truly open.
74. The application filed by the father is totally without merit. It is an abuse of process of the Court and has no prospects of success. It is frivolous and vexatious and is designed only to minimise the father’s considerable capacity to pay towards the support of his children and further harass and over bear on the mother with his assertions of obtaining further financial information from her and continuing Court processes and proceedings.
75. The application filed by the father on 26 July 2106 is summarily dismissed. I will list the matter for a costs application if requested to do so.