Departure from child support – insufficient evidence

Departure from child support – insufficient evidence

Falconer & Babett

Summary – Application for departure – mother seeking departure order based on the special needs of a child and father’s capacity to pay asserted special needs of the children – insufficient evidence to support special needs of the children as asserted by the mother – father lacks capacity to pay child support over and above that assessed – father agreed to pay private school fees for older child and gym fees for younger child and departure order granted on this basis only in respect of those costs only.

124. Before even assessing the children’s special needs I will look at the parents capacity to pay any amount over and above the child support assessed. For if the father does not have any capacity to pay over and above the assessed child support then whether the children have special needs or not is irrelevant.
125. The husband has commenced an embryonic business after having been made redundant three times in the last 5 years none of which was as a result of his behaviour or at his request. I am completely satisfied that he is maximising his earning capacity and that he is using his years of experience and contacts in the (omitted) industry to grow his business. He told me he needs to make a success of this for he has nothing other than some superannuation. I agree with him he is on his knees financially and has been for some time.
126. I am satisfied today the husband is not hiding any assets. He has nothing but his superannuation. It is nonsense and against the weight of the evidence to suggest this man can earn $224,000 per annum today as the wife continues to assert he can.
127. The wife is living in the past and the Court processes have not assisted her to move forward and accept the reality of life for herself, her children and their father. The husband has not held such a senior position which provided him with this level of income for over 3 years despite having been in the workforce continually and in the same area of work.
128. In relation to school fees the father has claimed he has not had the capacity to pay assessed child support and school fees for some years, at least since he lost his position with (employer omitted) in May 2013. Merely because whilst together the parents wished their children to be educated in the private system is not solely determinative of the matter. Parents need to be able to afford school fees and all the other essential costs in raising children. It is a pointless and futile exercise to order a parent to pay a cost they cannot afford unless I am satisfied that a parent is minimising their income or not exercising their income earning capacity or hiding or minimising their wealth.
129. The reality is the parents have not been able to afford private school fees since the husband lost his job with (employer omitted) in 2013. The perpetration of the fantasy that the husband is able to earn his 2013 income today but is choosing not to has resulted in the wife continuing to live beyond her means. There is no money, no unexercised earning capacity or underutilisation of an earning capacity by either parent. The wife maximises her earning capacity at around $60,000 per annum and the husband was also maximising his earning capacity and paying his assessed child support until he was made redundant for the third time in June 2015. He is now self-employed in an embryonic business and his income is at this stage uncertain but the evidence states it has been around $800 per week gross and I accept that figure.
130. The Agency corrected the accounting error when the husband worked for (employer omitted) and his income for child support purposes had been improperly reduced. The Agency disallowed certain non-agency payments the husband made which had been allowed in the past and his child support debt has increased and he accepts that debt today.
131. The evidence does not satisfy me that there ought to be a departure from the assessment of child support for either child in the past or into the future having regard to the parties’ financial resources, income and income earning capacity or their property.
132. As to the children’s asserted special needs.
133. Looking at the relevant case law In the Marriage of Gyselman (1992) FLC 92-2709 the Full Court opines on the meaning of special circumstances in section 117:
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     “Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must be establish something that 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.”

134. Justice Watts’ decision in Keane v Keane and Ors (2013) FamCA 332 deals with the meaning of special and exceptional circumstances in various parts of the Family Law Act and Child Support legislation being section 117(2) special circumstances and section 136CSSA exceptional circumstances. His Honour concludes that there is considerable merit in the view that there is a difference between exceptional and special circumstances see paragraph 66 of His Honours judgement and I agree with His Honours obiter.
135. The test to set aside a Binding Child Support agreement under section 136(2)(3)(c) of the CSSA is exceptional circumstances and is a high bar and must be uncommon, out of the ordinary and not routine or usual. The special needs of a child may be routine i.e. a need for counselling or tutoring but be a special need for a particular child.
136. What are the special needs for each child as asserted by the mother?
137. The agency rejected the wife’s bald assertions of special needs for her children in their decision of 29 February 2016 after hearing an objection by the wife as follows:
     1. Y’s paediatrician’s assessment in 2011 did not recommend tutoring;
     2. An (omitted) consultation dated 6 August 2015 did not make any recommendation for tutoring for either child;
     100. No report cards recommended tutoring for the children;
     4. Purchase of a computer for Y was not a special need; and
     5. Y’s gym membership was not a special need.
138. Orthodontic work for the boys and X’s ankle surgery were considered special needs and an assessment issued accordingly.
139. The evidence provided by the mother today regarding the children’s special needs is the same. There is insufficient evidence to satisfy me the Agency has made any error or that the matters of tutoring etc. raised by the mother are special needs.
140. There is no up to date medical evidence in relation to Y’s asserted needs for counselling and the mother needs to provide evidence from the relevant health professionals to satisfy the requirement to make out a special need under the meaning of the Act. It is not enough that the mother believes her children have special needs.
141. X has no special needs on the evidence before me. The Agency determined and I find that the wife has chosen to have him maths tutored, take part in (hobby omitted) because that is what he wants to do. That is appropriate and I make no criticism however these are not special needs or out of the ordinary. X is a perfectly together boy, doing well and attaining to the best of his ability.
142. The husband has agreed to pay half of X’s private school fees to enable him to finish his HSC in 2017 at that school. He says he can fund these additional costs over and above the child support assessment from an anticipated tax refund of $20,000 he will receive when he lodges his next 3 years tax returns and I will so order. To ensure these payments do not reduce any child support he is assessed to pay I will make a departure order for those costs.
143. Going to Y.
144. The evidence the mother has produced in relation to Y and his special needs is sorely lacking. The mother says he needs psychological counselling. He is depressed. He is overweight. The mother chooses for the child to attend private psychological assessment. There are services available which would be free or at a much reduced rate given his autism. There was no evidence of the mother exploring any of the Autistic Societies or Head Space or other agencies which assist children and parents in these areas at a much reduced fee base.
145. There is no comprehensive up to date report by a qualified specialist practitioner or health provider or educator of his special need for maths tutoring, English tutoring, counselling and the like. There are e-mails from a teacher to the mother, recommendations of interventions that would assist him or be desirable but this evidence is minimalist at best, is confused, out of date and at times not in the correct form to be accepted into evidence.
146. Having said that the child is autistic and it is a pity that the severity of his autism is not before me in any acceptable form such an up to date comprehensive medical report to enable me to find that he may have special needs over and above the normal to assist him to benefit from mainstream schooling. I note the father the father says he will pay for and take Y to the gym.
147. I have formed the view that although Y may have special needs those needs have not been supported by clear and cogent evidence and I am unable to assess the extent of his special needs over and above that which the Agency has assessed are his special needs.
148. I will as with X make a departure order for gym fees for the child to be paid by the father in addition to the assessed child support. However otherwise I am not satisfied on the evidence that there are special circumstances or that the child has special needs warranting me to depart from the assessed child support for any period of time and confirm the assessments issued in respect of Y thus far stand.
149. At the end of the day the on the question of whether the father has a capacity to pay towards a special need of his child even if I found a special need exited on the evidence today is that the father does not. He can only pay for X’s school fees and Y’s gym membership from his anticipated tax return and not from his income gross of $800 per week. The father must accommodate and feed himself and pay his assessed child support of $150.54 a week. His rent is $334 a week, tax $73 which may be returned to him, superannuation $73 leaving him with $170 a week for food clothing and the like.
150. Apart from these two matters which the husband has conceded, I am not satisfied on the evidence that there are special needs of the children warranting me to depart from the assessed child support for any period of time in the past for either child and confirm the assessments issued in respect of X and Y as correct.
151. Secondly I am not satisfied that the father has an unexercised earning capacity or is choosing to minimise his earning capacity or has a capacity to pay child support over that assessed on his income for his income is all that he has. The evidence is to the contrary and it is clear the school fees and gym fees will be paid for from his tax return.
152. I find there is a basis for a departure order into the future for the child X being his father’s agreement to pay half his school fees and for Y his gym membership fees to ensure the child support the mother does receive is not reduced due to these payments and I am only carrying out this step due to the fathers’ concession to pay same and that he will have a fund with which to pay those costs.
153. I find today that the mother has failed to satisfy me that the husband has an unexercised income earning capacity, property or financial resources such that he should be ordered to pay child support over and above that assessed by the agency.
154. A further factor acting upon my discretion was that the mother received all the liquid assets of the parties save for the $20,000 in the husband’s bank account at separation and 10% more than His Honour determined she should have had received. Thus the husband has supported his family with those monies that should have properly been his and thus he has supported his family with his income and financial resources in the past and I will not disturb the assessments that have issued.