Child support – lump sum, departure order

Child support – lump sum, departure order

Applicant:

MR JULIET

REPRESENTATION

ORDERS

(1) It is declared that as at 1 October 2015 the sum of $39,906.00 in registered  child support  liabilities for the children X born (omitted) 2002 and Y born (omitted) 2004 is owed by Mr Juliet.
(2) That within 14 days of the making of these orders Mr Juliet pay the sum of $39,906.00, being the total  child support  owed by him at 1 October 2015 as declared in order 1, to the  Child Support  Registrar.
(3) That within 28 days of the making of these orders Mr Juliet provide  child support  to Ms Jones for the children X born (omitted) 2002 and Y born (omitted) 2004 by way of lump sum payment of $108,300.00, to be paid by electronic transfer. AND this amount is to be credited against the administrative assessment(s) of  child support  AND from 2 October 2015 to the date of termination of the youngest child’s administrative assessment, the lump sum  child support  is credited as 100% of the total annual rate of  child support .
(4) That in the event that Mr Juliet fails to make the payments described in orders 2 and 3, the Court Registrar shall issue a Third Party Debt Notice to (omitted) Pty Ltd (omitted), Trustee for the (omitted) Unit Trust, and purchaser of a portion of Mr Juliet’s property at Property K of Title (omitted), as detailed in the contract for sale of the property dated 31 July 2015, for payment of the total  child support  payable under these orders or any part thereof still outstanding, from the purchase price of that property.
(5) That in the event that the total  child support  payable under these orders is not, for any reason, paid in accordance with orders 2,3 or 4, the Court Registrar shall issue an Enforcement Warrant for the Marshal/Sheriff of the Federal Circuit Court to effect the seizure and sale of Mr Juliet’s property at Property T in Tasmania CT (omitted), Vol (omitted), Folio (omitted) known as ‘Property T’ and payment of the total  child support  payable under these orders will be paid to Ms Jones from the proceeds of that sale.
(6) That in the event that an Enforcement Warrant is issued in accordance with order 5, all reasonable costs incurred by Ms Jones in relation to carrying out the Enforcement Warrant be paid from the proceeds of sale of the seized property.

IT IS NOTED that publication of this judgment under the pseudonym Juliet & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

HBC 730 of 2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

Applications

1. There are now three separate  child support  issues remaining for my determination in the lengthy litigation between Ms Jones and Mr Juliet that has continued over many years.
2. In February 2015, I commenced a trial where Ms Jones was the applicant for lump sum  child support  for the parties’ two children, X born (omitted) 2002 (aged 13 years) (“X”) and Y born (omitted) 2004 (aged 11 years) (“Y”).
3. Ms Jones initially sought a lump sum amount from Mr Juliet of $188,500. She has now amended her claim and seeks $108,300. That application is opposed. The mother is represented by Ms Moore, solicitor, of Hobart Community Legal Services.
4. Mr Juliet represents himself (although he was represented for part of the previous parenting proceedings). He opposes the making of any lump sum order.
5. Contemporaneously with the mother’s lump sum maintenance application, I was required to determine the issue of the children’s parenting and living arrangements raised only on Mr Juliet’s response. He sought a fundamental change to the children’s living arrangements whereby he would be their primary parent. The mother opposed that application. She was represented by Mr Munro, solicitor, in respect of that issue.
6. On 14 July 2015 I made final children’s orders inter alia continuing Ms Jones as the primary carer for X and Y.
7. For obvious reasons, I was required to determine the children’s parenting orders before considering the mother’s application for lump sum  child support . In the meantime, however, and partway through the taking of the evidence, Mr Juliet brought an application for a departure order in respect of his  child support  obligations. He seeks a departure from assessments for the financial years ending 2010, 2011, 2012, 2013 and 2014.
8. Mr Juliet’s current assessment for  child support  arises from a Registrar Initiated Change of Assessment dated 30 March 2011. Based on Reason 8,^[1] being that the  child support  assessment is unfair because of a party’s income, property and financial resources or earning capacity. The Registrar set Mr Juliet’s Adjusted Taxable Income at $220,000 per annum for the period from 17 December 2010 until the final terminating event.
9. Specifically, in his application, Mr Juliet seeks orders in the following terms:
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   (1) An order varying the annual rate of  child support  SEC 118(1)(a).

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(2) An order varying Mr Juliet’s  child support  income SEC 118(1)(c).

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(3) An order varying the costs of the children, taking into account SEC 118(1)(j) and SEC (2).

10. Ms Moore represents the mother in opposing the departure application.
11. At the commencement of the taking of evidence in respect of the initial two issues in February 2015, I was informed that there was an application for enforcement of arrears of  child support  currently before a Family Court Registrar with Mr Juliet as the respondent. Quite properly, in my view, the Registrar determined to transfer the Enforcement Application to me, given that I was seized of both the mother’s lump sum  child support  application and the father’s departure application.
12. A document was tendered in evidence noting the arrears of the  child support  at $39,906 as of 1 October 2015 and dating back from September 2013.

The Evidence

13. Each of the parties provided copious affidavit material, much of which covered all of the various issues. Each was cross-examined extensively. Mr Juliet conducted his own case in respect of the  child support  matters. He did so in a professional and courteous manner, albeit often becoming emotional. He demonstrated a reasonable understanding of the complex issues and was able to cross-examine the mother as to relevant matters.
14. Mr Juliet adduced evidence from his accountant, Mr D, who gave evidence on two separate occasions a number of months apart. Mr D is also the accountant for (omitted business), which is the company structure under which Mr Juliet conducts his ventures in property development. Mr Juliet is the sole shareholder and officeholder of (omitted business) and its associated entities.
15. Mr D was an impressive witness. He gave the Court an overview of Mr Juliet’s business and his fluctuating income and earning potential. He was an objective witness and gave no indication as being unduly partisan to his client, Mr Juliet. Overall, Mr D’s evidence was of some real assistance to the Court.

The Issues

16. In respect of the mother’s application for lump sum  child support  the Court must, as is usual in such cases, determine whether a capitalisation order is appropriate given consideration of the father’s history of meeting his periodical obligations. Further, the Court should consider whether the nature of the father’s income, which is variable and inconsistent in its receipt, should properly be subject to a lump sum  child support  order, and in circumstances whereby the mother has been forced to pursue arrears of  child support . The Court must also consider the likelihood of any changes in the circumstances of either of the parties or the children in determining whether a lump sum order is appropriate.
17. The father’s departure application raises the issue as to whether his payment of private school fees for the children should reduce his obligation. He also argues that his taxable income, which is substantially less than the assessed income made by the Registrar, is the appropriate tool for calculating his  child support .
18. The enforcement application raised issues as to whether special circumstances exist so that Mr Juliet should be relieved of his past obligations to contribute to the support of his children.
19. The nature of the various applications before me dictates that I determine the father’s departure application before the mother’s application for lump sum  child support .

Father’s Application for Departure Orders

20. Mr Juliet says that he should be assessed on his taxable income for the financial years 2010 to 2014 rather than on the amount determined by the Registrar, that being $220,000 per annum.
21. Mr Juliet and his accountant, Mr D, gave different amounts as to Mr Juliet’s taxable income in each relevant year. I prefer the evidence of Mr D, given his expertise, that it was he who prepared the taxation returns, and the consistent nature of his evidence.
22. The tenor of Mr Juliet’s evidence was that it should be his own taxable income, absent that of (omitted business), which grounds his  child support  income. If indeed this is Mr Juliet’s argument, then I reject it. Mr D made it clear that (omitted business) is simply a corporate structure to facilitate Mr Juliet’s business. There are no other beneficiaries of (omitted business)’s income. I am satisfied that (omitted business)’s income benefits Mr Juliet and should be considered as his income for the purposes of this application.
23. Mr D, in his affidavit of 19 March 2015, at [13-14] says:
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    [13] Mr Juliet personally has a taxable income over the last four years:

    • 2011: $40,238 ($40,000 paid by (omitted business) and interest income of $238)
    • 2012: $44,742 (paid by (omitted business))
    • 2013: $45,000 (paid by (omitted business))
    • 2014: $NIL
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[14] (omitted business) has had net taxable income over the last four years:

• 2011: $90,047 – profit
• 2012: $59,693 – profit
• 2013: ($466) – loss
• 2014: ($16,148) – loss – based on draft figures that have not been finalised.
24. Mr D confirmed Mr Juliet’s evidence that he had invested approximately $350,000 into the (omitted) in 2009/10 but this investment had failed.
25. Section 117 of the  Child Support (Assessment) Act 1989  (as Amended) (“the Act”) states:

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.

High costs involved in enabling parent to care for a child

(2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a  child support  period, total more than 5% of the amount worked out by:

(a) dividing the parent’s adjusted taxable income for the period by 365; and

(b) multiplying the quotient by the number of days in the period.

(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.

High child care costs

(3A) The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:

(a) the costs are incurred by a parent or a non-parent carer; and

(b) the child is younger than 12 at the start of the  child support  period.

(3B) Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a  child support  period, they total more than 5% of the amount worked out by:

(a) dividing the parent’s adjusted taxable income for the period by 365; and

(b) multiplying the quotient by the number of days in the period.

(3C) Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a  child support  period, they total at least 25% of the costs of the child for that period.

Matters to consider for purposes of subparagraph (1)(b)(ii)

(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, property and financial resources of each parent who is a party to the proceeding; and

(da) the earning capacity 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; and

(iii) to any resident child of the parent (see subsection (10)) 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 .

Proper needs of the child

(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.

Income, earning capacity, property and financial resources

(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:

(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child 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.

(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:

(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the 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.

(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

(a) one or more of the following applies:

(i) the parent does not work despite ample opportunity to do so;

(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii) the parent has changed his or her occupation, industry or working pattern; and

(b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(i) the parent’s caring responsibilities; or

(ii) the parent’s state of health; and

(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of  child support  in relation to the child.

Direct and indirect costs in providing care

(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.

Subsections not to limit consideration of other matters

(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.

Definition of resident child

(10) For the purposes of this section, a child is a resident child of a person only if:

(a) the child normally lives with the person, but is not a child of the person; and

(b) the person is, or was, for 2 continuous years, a member of a couple; and

(c) the other member of the couple is, or was, a parent of the child; and

(d) the child is aged under 18; and

(e) the child is not a member of a couple; and

(f) one or more of the following applies in respect of each parent of the child:

(i) the parent has died;

(ii) the parent is unable to support the child due to the ill-health of the parent;

(iii) the parent is unable to support the child due to the caring responsibilities of the parent; and

(g) the court is satisfied that the resident child requires financial assistance.

26. The evidence of Mr D is that Mr Juliet/(omitted business) owed the Australian Taxation Office (“ATO”) $98,082.98. He says that Mr Juliet borrowed these monies from his sister to avoid a liquidator being appointed. Mr Juliet claims to be indebted to his sister accordingly and, in fact, for an amount over $300,000 in total from borrowings from her. Significantly, however, the sister did not give evidence or provide an affidavit. The Court is not told of any claims made by the sister for urgent or immediate repayment. There is no documentary evidence of any loan agreements between Mr Juliet and his sister setting out contractual terms. There is no evidence of any security provided to the sister for the loans.
27. Mr D confirmed that Mr Juliet has a loan account with (omitted business) currently sitting at $1.039 million, whereas the account balance was $1,180,636 as at 30 June 2013.
28. Mr Juliet says he has outstanding school fees payable to the (omitted) School for the 2015 year at $29,500 together with credit card liabilities of $35,500 on a $40,000 limit.
29. Mr Juliet has no income other than from his property development enterprises save and except an amount of approximately $815 per month from a berth at (omitted) in Hobart.
30. Mr Juliet had serious heart surgery in about 2009 and says that he continues to suffer health ramifications. No medical evidence was adduced. He is in a relationship with Ms J. She is 57 years old. She is an (occupation omitted) but with minimal income. Mr Juliet says that he feels an obligation towards the support of Ms J. Ms J did not give evidence.
31. Mr Juliet/(omitted business) has recently entered into a contract for the sale of a parcel of his Property K development land for $1.3 million. He says that the cost of readying the land for sale and producing the title is approximately $125,000. He says that the (omitted) Bank will be a priority interest in any profits given their impatience with his loan levels and lack of recent income. Mr Juliet tendered correspondence from the (omitted) Bank accordingly, but which was non-specific in respect of various securities that Mr Juliet would be able to offer. Further, Mr Juliet says that $600,000 (presumably profits from the aforementioned sale) is needed to develop the balance of the Property K land. Significantly, however, Mr Juliet volunteered in his evidence that the balance of the Property K land is on the market for sale, undeveloped, at $2.5 million.
32. Mr D was able to confirm that the (omitted) Bank is impatient in respect of Mr Juliet’s loans. They have threatened foreclosure. Mr D gave evidence that Mr Juliet has been unsuccessful in his efforts to refinance from other financial institutions.
33. It is true that Mr Juliet is apparently “property-rich” but often “income-poor.” His evidence in respect of his property interests was often vague or contrary. For instance, he volunteered that he had refused an offer of $1.5 million for land he owns on the east coast of Tasmania, where its valuation is $1.25 million. He gave evidence that he intended to invest $600,000 in the balance of the Property K land, but also informed the Court that the property was on the market “as is” for $2.5 million. Similarly, there was inconsistent evidence in respect of the value of his home. As best as I can on the evidence before me, I find that Mr Juliet holds the following property interests: –

Home at Property O;

50% interest: $425,000.

Property T;

$1,250,000.

(omitted business) land under contract;

$1,300,000.

Balance of (omitted business) land;

$2,500,000.

(omitted) Berth;

$24,000.

34. The best evidence before me is that the (omitted) Bank loan in respect of the Property O property sits at $515,000 but is perhaps increasing. Further, there is a separate loan of approximately $500,000 secured by Property T. I accept, however, from Mr D that the bank loans have cross collateral security. I also accept that Mr Juliet/(omitted business) has not been meeting regular instalment payments to the bank and hence their impatience.
35. The mother’s income is limited from casual (omitted) work and supplemented by Centrelink benefits. She is intending to improve her prospects by tertiary study. Her evidence generally satisfied me as to her attempts to obtain gainful employment.
36. The uncontroversial evidence is that Mr Juliet reduced his home mortgage by a lump sum injection of $131,910.70 on 14 July 2011. He says that this was profit from a previous sale of Property K land. Notably, the  Child Support  Registrar’s assessment of Mr Juliet’s  child support  liability was made 30 March 2011. He is now some $39,000 in arrears on that assessment. Counsel for Ms Jones also pointed Mr Juliet to a number of other injections into his mortgage account in 2013 in sums of $5,000, $3,000 and $4,000. Mr Juliet was unable to offer the source of these funds. Again and notably, these monies were seemingly paid into Mr Juliet’s mortgage account during the period in which he was accruing arrears under his  child support  assessments.
37. The  child support  assessment from which Mr Juliet wishes to depart is that of the Registrar made 30 March 2011. The Registrar noted or found the following:

(i) that Mr Juliet is the sole director and shareholder of (omitted business);
(ii) that Mr Juliet had a taxable income for the financial year 2009 of $17,191;
(iii) that the income tax returns lodged for (omitted business) for the financial year 2009 shows:
$728,767 – total business income
$220,050 – taxable income
(iv) Mr Juliet’s personal circumstances (which were remarkably similar as those related to this Court some four years hence);
(v) that Ms Jones disclosed assets of value over $700,000, as she has now, and primarily being equity in her home;
(vi) that Mr Juliet had financial resources/income far in excess of the income used for him in the child support assessment and therefore Mr Juliet’s income was set at $220,000 (for  child support  purposes) being satisfied that a special circumstance was established in that assessing  child support  on the basis of taxable income reported from the ATO for Mr Juliet would result in an unjust and inequitable level of  child support .

Consideration and Findings

38. I am not persuaded that Mr Juliet’s circumstances have changed substantially, if at all, from the Registrar’s determination of 30 March 2011. I note the following:
    1. He remains involved in property development as his primary source of income;
    2. He has a sale pending that will bring a gross $1.3 million less costs of $125,000 to produce title;
    3. He remains indebted to the (omitted) Bank who have other security over a liability of perhaps $1 million or slightly more;
    4. He has substantial property holdings, not least being the Property T property which has an equity of at least $750,000 on Mr Juliet’s own evidence, and that this property is on the market for sale;
    5. He has an equity in his home of at least $425,000 and perhaps significantly more, and that this property is on the market for sale;
    6. The balance of the (omitted business) land is on the market for sale “as is” for $2.5 million;
    7. Mr Juliet continues to meet the children’s school fees at around $29,000 per annum;
    8. Mr Juliet has injected large sums into his home mortgage since 2011 but not paid  child support  since September 2013 with the exception of one payment made on 29 August 2014 in an amount of $3,100.
39. I am not persuaded that Mr Juliet’s taxable income as struck by the ATO is a just and equitable indication of his ability to provide financial support for his children. It is true that his income is irregular. When he receives income by way of profit then they are in substantial amounts. He will shortly receive a profits from land sold at a gross $1.3million. His proposal to inject those profits into further land developments should not be a priority over his children’s support.
40. It is true that Mr Juliet pays school fees for X and Y at the (omitted) School in Hobart. In his evidence he conceded that they attend that school at his initial suggestion and instigation. Further, he emphasises that he wants the children to continue at the (omitted) School. To the contrary, Ms Jones gave evidence that she would be content for the children to be placed in a government school. She agreed that the idea for the children to attend the (omitted) School had come from Mr Juliet and any acquiescence from her was conditional upon Mr Juliet meeting the school fees without impost on his  child support  obligations. This evidence is unchallenged and noted on previous Court orders. Against this background, again noting this to be a situation in place before the Registrar in 2011, I am not persuaded that this is a special circumstance within s.117(3)(b) of the Act such as to support a departure order.
41. In summary, I am not persuaded that Mr Juliet has established any of the grounds for a departure order in s.117(2). His own circumstances remain effectively unchanged. His income is inconsistent but potentially high. His asset position is strong in value and substantially currently for sale. The children’s living circumstances remain effectively unchanged.
42. I must consider whether it is just and equitable within the meaning of s.117(4) of the Act to make a particular order. The departure order sought by the father would considerably reduce the  child support  payable for these two children against a background where the father is asset/resource rich. Difficulties in the mother enforcing any entitlement might eventuate. However, I am satisfied that justice and equity would not result for these children from the orders sought by the father.
43. Pursuant to s.117(5) I must consider whether it is “otherwise proper” to make a particular order. Mr Juliet has a duty to maintain his children. I am satisfied that he has the property and resources together with potential income to do so. As such, I am satisfied that the dismissal of Mr Juliet’s application for a departure order is otherwise proper. This would, of course, leave in force the assessment of the Registrar made on 30 March 2011.
44. Consequently, there will be an order dismissing Mr Juliet’s application for a departure order.

The Mother’s Application for Lump Sum  Child Support 

45. As  child support  is temporal to children’s day to day needs with the reality that a child or parent’s circumstances may change,  child support  payable on a periodic base is the norm.
46. Section 123 of the Act provides:
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    (1) An application may be made to a court having jurisdiction under this Act for:

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    (a) an order that a liable parent provide  child support  otherwise than in the form of periodic amounts paid to the carer entitled to  child support ; or

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(b) an order that a liable parent provide  child support  in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.

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(2) An application under subsection (1):

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(a)may only be made if an administrative assessment is in force in relation to the child, the carer entitled to  child support  and the liable parent; and

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(b) may be made by the carer entitled to  child support  or the liable parent.

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(3) Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to  child support  and the liable parent.

1. (4) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the carer entitled to  child support  and the liable parent.

47. Section 123A of the Act is in the following terms:
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    (1) The court may make an order that a liable parent provide  child support  for a child to a carer entitled to  child support  in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment if:

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    (a) the carer entitled to  child support  or the liable parent makes an application to a court under paragraph 123(1)(b); and

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(b) the court is satisfied that it would be:

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(i) just and equitable as regards the child, the carer entitled to  child support  and the liable parent; and

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(ii) otherwise proper;

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to make an order under this section; and

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(c) the amount of the lump sum payment equals or exceeds the annual rate of  child support  payable for the child under the administrative assessment.

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Note If the court makes such an order, the lump sum payment is credited under section 69A of the Registration and Collection Act against the amount payable under the liable parent’s liability (rather than reducing the annual rate of  child support  payable under the administrative assessment).

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(2) A lump sum payment may include a payment by way of transfer or settlement of property.

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(3) An order under subsection (1):

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(a) must specify the amount of the lump sum payment; and

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(b) must specify that the lump sum payment is to be credited against 100%, or another specified percentage that is less than 100%, of the amounts payable under the liability.

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(4) In determining the application made under paragraph 123(1)(b), the court must have regard to:

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(a) the administrative assessment; and

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(b) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to  child support  and the liable parent; and

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(c) any order in force under Division 4 of this Part (departure orders) in relation to the child, the carer entitled to  child support  and the liable parent; and

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(d) whether the carer entitled to  child support  is in receipt of an income tested pension, allowance or benefit; and

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(e) if the carer entitled to  child support  is not in receipt of such a pension, allowance or benefit–whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.

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(5) 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 an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).

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(6) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).

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(7) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).

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(8) Subsections (4), (5), (6) and (7) do not limit the matters to which the court may have regard.

48. In the matter now before me and addressing the statutory considerations, the following are indicative of an application for lump sum  child support :
    1. The father has substantially not paid  child support  since September 2013;
    2. The nature of the father’s property development business and variable income together with the use of a company structure are not compatible with a periodic order;
    3. The father has options for the use of clear funds that he has indicated in his evidence would be a priority over payment of  child support  and notably injections of funds into further land developments;
    4. The father has argued for a departure order to be based on his personal taxable income in circumstances where he has had monies available and diverted to places other than to his  child support  obligations as, for example, in injections of cash into his own home mortgage;
    5. the relationship between the applicant and the respondent remains uncommunicative and generally uncooperative against a background of regular litigation and including allegations of family violence.
49. Ms Jones has been required to make applications to enforce payment of arrears of  child support . It follows that Ms Jones would be likely to have to regularly pursue Mr Juliet for payment of his periodic  child support . Consequently and with regard to matters for consideration under the Act, I am satisfied that payment of  child support  by Mr Juliet for X and Y in a lump sum is appropriate in this matter and noting that issues in respect of X and Y’s living arrangements have been settled by recent Court Orders.
50. The quantum of  child support  sought is in a lump sum of $108,300.
51. Mr Juliet gave evidence that he was confident that Y would pursue tertiary studies. There is no indication that either child would not complete their secondary education. X is now 13 years of age and Y is 11 years of age. The current assessment obligates Mr Juliet in an amount of approximately $450 per week or some $23,400 per annum. The mother’s initial application sought a simple capitalisation of $188,500. I am satisfied that the payment of a lump sum discounted to $108,300 is appropriate on consideration of the parents’ and the children’s circumstances, including their ages, and that proper investment of the lump sum will bring some additional interest.
52. There will be an order that the father pay a lump sum  child support  for the children from the date of this order in the quantum of $108,300.

Enforcement of Arrears of  Child Support 

53. I accept the evidence provided on behalf of the mother that the outstanding  child support  debt for Mr Juliet as of 1 October 2015 is $39,906.
54. In crossexamination, Mr Juliet was asked whether he could meet this debt from the pending proceeds of sale of the land at Property K. His simple answer was “yes”.
55. Mr Juliet did not dispute the debt per se. He argued only that justice and equity demanded that he should not be responsible for the debt and he argued on the same grounds as for his departure from  child support .
56. I am satisfied that the debt is owing in the amount claimed. I am persuaded by the father’s simple concession that he will have the funds to satisfy the debt. I am not satisfied that any argument has successfully been put to me such that Mr Juliet should be relieved of his responsibility of payment of the arrears of  child support .

Conclusion

57. The orders that I propose to make in simple form are:

(1) That the father’s application for a departure order be dismissed;

(2) That the father pay  child support  for the children, X and Y, in a lump sum of $108,300, thereby satisfying his liability for  child support  for the children or either of them until terminating events;

(3) That the father pay to the  Child Support  Agency for a payment to the mother the sum of $39,906 in satisfaction of arrears of  child support  owing as at 1 October 2015.

58. My reasons above indicate that I am satisfied that Mr Juliet’s income is inconsistent and reliant upon the sale of land from his property development. I also note that he has other assets in the form of real property that are currently for sale. My order should provide for the satisfaction of the mother’s entitlements under those orders. I anticipate that she would, by reasons of these orders, be entitled to caveat various parcels of land. Further, I found Mr Juliet’s evidence in respect of his bona fide attempts to sell the property known as Property T to be less than satisfactory.
59. As such, it would be open for me to make a consequential order whereby the mother have carriage of the sale of that property. Nevertheless, such orders may be unnecessary if Mr Juliet is able to make satisfactory proposals for the payments of lump sum  child support  and the arrears which total some $148,206. In all of the circumstances, I think it proper to allow Mr Juliet some opportunity to settle his obligations under these orders without other more onerous options as set out above. Similarly, I will hear the mother’s Counsel as to the form of orders that she requires, including for the lump sum  child support . The orders I make here, therefore, are in draft form only.