Child support departure refused

Child support departure refused

Cole & Santos [2016] FCCA 674 (1 April 2016)

CHILD SUPPORT – Child support assessment – whether to depart from child support assessment – no special circumstances.

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/674.html?stem=0&synonyms=0&query=family%20law%20act

Submissions on Child Support

68. The Father contended that the information the Mother provided to the Department of Human Services (“DHS”), for a Child Support Assessment (“CSA”), was incorrect and misleading.
69. A document from DHS, entitled Decision Regarding Change of Assessment, dated 8 December 2015, was tendered without objection, entered into evidence, and marked “R1”.
70. The Mother was called give oral evidence.
71. The Mother deposed in Evidence in Chief, that Y had a full-time job at a (employer omitted) over the few weeks prior to Christmas 2015 and that he intended to use the money he earned to fund an overseas trip organised by his school.
72. In his cross-examination of the Mother, the Father relied on a document, entitled “Application to Change your Assessment, Special Circumstances”, dated 25 September 2015, lodged by the Mother to DHS, which was annexed to the Father’s affidavit, affirmed and filed 9 November 2015.
73. The Father questioned the Mother as to her requests to DHS to reassess CSA as revealed in the annexed document.
74. Specifically, the Father drew the Mother’s attention to the fact that she had requested financial support for X to attend university in 2016.
75. The Father put to the Mother that, as X was likely to receive an ATAR lower than required to enter an (unspecified) university course, such support was unnecessary and so the Mother’s claim for monies so as to maintain X at university was largely inflated and unnecessary. The Father also noted that the Mother’s request in this regard was not approved by DHS.
76. The Father also put to the Mother that she did not mention X’s application to join the (employer omitted) as an (occupation omitted).
77. The Mother replied that X’s application to the (employer omitted) was rejected prior to her application to DHS. This rejection had spurred the application to attend university and its inclusion in the CSA.
78. The Mother said that she has made mistakes “early on in the process” but had not purposely misled DHS and that all of her applications have been honest.
79. Regarding a copy of a CSA conducted in 2010, annexed to the Father’s Affidavit – Financial, affirmed and filed 2 February 2015, the Mother was questioned by the Father as to whether she owned a property at the time of that CSA, to which the Mother replied yes. The Father then asked the Mother why she had answered “no” to a question on the CSA form asking whether she owned a property.
80. The Mother replied that, as a result of the Father withdrawing financial support for school fees, she contacted CHS and was advised to lodge a Change of Assessment form. When completing the form, the Mother misread the question, thinking it was asking whether she had a mortgage over the home in which she lived. As she did not, so she answered “no.” The Mother restated that she did not intend to mislead DHS, and that it was an honest mistake.
81. Regarding another application made by the Mother, also annexed to the Father’s Affidavit – Financial, affirmed and filed 2 February 2015, the Father sought clarification of a question in which the Mother declared that her savings and assets totalled $1,000. However, later in interview with DHS, the Mother revealed that she had a share portfolio worth approximately $200,000.
82. The Mother again stated that she was confused and unfamiliar with the DHS Child Support processes, especially early on. She said her answer was not intended to mislead, nor have mistakes been repeated.
83. The Father raised issues regarding inconsistent superannuation values as listed on the application. The Father asserted that at the time of divorce in 2009, the Mother’s superannuation was valued at $900,000, yet three years later, she declared her superannuation to the DHS to be valued at $250,000.
84. The Mother could not explain the inconsistencies and mentioned several factors that may have caused her to become confused or arrive at a mistaken figure. Again she repeated her unfamiliarity with the child support system at that time, however she asserted that she now understands the importance of full disclosure and the manner in which DHS assesses claimants.
85. Counsel for the Mother sought clarification that as the Father had consented to certain Orders relating to the schools in which Y and Z were enrolled, whether he would be seeking to discharge those consent Orders. Also, whether he intended to challenge R1 in this Court.
86. Mr Cole stated that he intended to stand by his consent Orders but that he would be challenging R1 with DHS not in this Court.
87. Counsel for the Mother helpfully explained to the Father that if an Order as to Child Assessment was made by this Court, that Order may then constrain or prevent any challenge the Father may make to DHS.
88. The matter was adjourned to allow the Father to seek legal advice from the Court Duty Solicitor.
89. The Father asked one final question of the Mother in evidence. The Father asked the valuation of the Mother’s residence, which she had recorded at $1.3 million on the document referred to in [72]. The Mother replied it was an estimate she had arrived at following an informal internet-based valuation. The Father referred to his Affidavit – Update, affirmed and filed 9 November 2015, which annexed a copy of a professional valuation that valued the residence at $1.79 million.
90. The Father gave his Evidence in Chief. The Father has several issues with R1, namely the large asset pool, wealth disparity, the frequent and significant errors made by the Mother in her forms, and the amounts already paid.
91. The Father attested that he, at one point, attempted to change the children’s school, but was threatened by the Mother that if he did so she would take out an Apprehended Violence Order against him.
92. The CSA in R1 increased the Father’s school fees contribution from 50 percent to 63 percent. Moreover, the CSA “inflated” his taxable income to $154,000 from $135,000.
93. The Father ultimately put to the Court, that it was the Court’s decision whether to make an Order that departs from the CSA. The Father said that he wanted the CSA reduced, however that the Mother wanted the CSA increased. I note that this was not in any evidence led by the Mother.
94. Counsel for the Mother concluded his submissions by stating that she did not wish to cavil with the CSA in this Court, and stated that the total 50-50 percent contribution split between the parties in relation to the children’s education fees, health payments, and dance classes was “reasonable.”
95. The financial contributions that the Father made acknowledged that it was in the children’s best interest for the Father to participate in their lives, albeit financially in this regard, however that the contributions were “benefits that flowed directly to Y and Z.”
96. Finally, counsel suggested that the reason for the CSA’s ‘inflation’ of the Father’s income was within the parameters of the DHS’s when accounting for the Father’s Fringe Benefit Taxes. However, counsel repeated that the Mother did not wish to cavil on this point.

101. With regards to the Court departing from a Child Support Assessment, s.117 of the Child Support (Assessment) Act 1989 (Cth) provides as follows:

“Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(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 the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the  Family Law Act 1975  or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.”
(emphasis added)

102. Importantly, s.116 of the Child Support (Assessment) Act 1989 (Cth) requires that:

“Application for order under Division
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent–the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).”

Child Support

210. I do not propose to make an order as to Child Support.
211. In limine, the Father did not have leave to apply to this Court as required by s.116 of the Child Support (Assessment) Act 1989 (Cth). However, for the sake of thoroughness and the fact that the Father was self-represented, I will discuss the matter further.
212. As noted earlier, the Father’s argument for Court intervention in the CSA was misconceived, and seemed to misunderstand the role of the Court when considering whether to depart from a CSA.
213. Whilst the Court does have jurisdiction to order a departure from a CSA, such departure must consider the “special circumstances of the case” and whether it is “just and equitable” and “otherwise proper” (see s.117 of the Child Support (Assessment) Act 1989 (Cth) above).
214. With the support of Counsel for the Mother, the Father obtained legal advice from a duty solicitor. After which, discussion and evidence on the matter of Child Support was largely benign and offered no reason for the Court to intervene.
215. In summary, the Father disputes the CSA, arguing that the assessment should be less. The evidence he led on this assertion was weak and inconclusive. The Mother’s position, which was not argued or pressed, was that the CSA should require the Father to pay more.
216. The circumstances of [this] case, without more compelling evidence from the Father and any evidence from the Mother, are not special.
217. The cross examination of the Mother by the Father resulted in answers that, in my mind, did not affect the CSA in such a manner that this Court should regard the circumstances of the CSA as special or out of the ordinary.”
218. I note the Father’s general attacks on the credit and character of the Mother were not useful to the Court.
219. The DHS has its administrative methods, both for assessment and for amendment of its assessment when mistakes are revealed.
220. As the Full Court of the Family Court of Australia said in Gyselman & Gyselman [1991] FamCA 93; 103 FLR 156; [1992] FLC 92-279; (1991) 15 Fam LR 219, [39] per Nicholson C.J., Fogarty, and Nygh JJ: “Each of those grounds [for departure from administrative assessment] is prefaced by the words, “in the special circumstances of the case.” Whilst it is not possible to define with precision the meaning of that term, 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 eth administrative formula result in the ordinary run of cases.”
221. Further, the inconclusiveness and inadequacy of the evidence led by parties prevents me from making a decision as to what is a “just and equitable” departure from the CSA.
222. Finally, I find it would be improper to make an Order in a situation where the Court’s jurisdiction is not properly invoked. The Father’s dispute (and the Mother’s un-argued position) is best brought to the attention of DHS.
223. Any Order that could be made in these circumstances would be ill-made for want of adequate evidence and would have the consequence of preventing the DHS from further involvement.
224. In the circumstances, I make no order as to Child Support.