James & Snipper (No 4) [2025] FedCFamC1F 804 (18 November 2025)

1. The arrears of periodic child support pursuant to Order 2 are $9,665.75 for the period 19 June 2023 to 18 November 2025.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The applicant filed four different applications, all of which were listed for hearing: two Contravention Applications, a Costs Application and Amended Initiating Application.
2. The Contravention Application filed 31 March 2025 was dealt with by consent orders.
3. The Contravention Application filed 18 March 2025 and the Costs Application were summarily dismissed, and reasons were provided on 11 July 2025 (James & Snipper (No 3) [2025] FedCFamC1F 382).
4. These reasons relate to determination of the Amended Initiating Application filed 26 September 2024, and Amended Response filed 18 October 2024. The applicant seeks to set aside Orders 31 to 34 of the Orders made by Watts J on 12 January 2018, and that the Child Support Agency be directed to reduce to nil any arrears. He seeks an order pursuant to s 118(1)(a) of the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") varying the annual rate of child support payable by him to the respondent to zero until R turns 18 years, due to a change of circumstances.
5. The respondent opposes the application, and sought summary dismissal. For the reasons set out below I propose varying the amount of periodic child support payable to accord with the applicant's income earning capacity, and discharging the order for payment of expenses from 19 June 2023.

1. The parties were married in 1994 and separated in 2011. There are three children of the relationship, namely G, B and R.
2. On 12 January 2018, final orders were made by Watts J for property division, periodic child support orders and non-periodic child support orders, spousal maintenance, and parenting. The orders relevantly provide:

31. Pursuant to section 118(1)(a) of the Child Support (Assessment) Act 1989 (Cth), an order is made in relation to the children varying the annual rate of child support payable by the husband to an amount of $101,608 per annum calculated from 12 January 2018.

32. The payment referred to in order 31 is to be adjusted on 1 January each year in accordance with any change in the consumer price index for Sydney for the preceding calendar year.

33. The child support payable by the husband pursuant to order 31 hereof in respect of the children is to be credited against the husband's liability under any assessment issued by the Child Support Agency and is to account for 100 per cent of the annual rate of child support payable to the wife by the husband under any assessment.

34. Pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth), the husband shall pay 87.6 per cent and the wife pay 12.4 per cent of the following expenses as and when they fall due:

34.1. all education expenses in respect of the children's attendance at their present schools and such high schools, including all tuition fees, compulsory building fund contributions, excursion fees, incidentals, sporting costs, uniforms and equipment, all school books, extracurricular activities and additional tuition provided that in the event that the wife chooses to send the children to more expensive schools than the two elder children currently attend, then she will be responsible for the payment of all of the differences in fees and the husband will only be responsible for 87.6 per cent of the costs of the children's schooling based upon the cost of the current schooling of the two elder children;

34.2. all instalments at the present scale to the private health fund of which the children are presently members, or such other fund as the parents agree upon in writing;

34.3. all private hospital, optical, physiotherapy, dental or medical expenses in respect of the children which are not able to be recovered from the private health fund;

34.4. the children's therapy.

1. The applicant unsuccessfully sought to appeal the decision of Watts J on 22 February 2019. It is an agreed fact that although the Notice of Appeal referred to the child support orders, that part of the appeal was not pursued. No application was made to Watts J under the Slip Rule.
2. At the date of the hearing the applicant's total child support liability stood at $241,549.82. He owes approximately $5 million to the Australian Taxation Office ("ATO"). There are no proceedings between the ATO and the applicant, nor is there any agreement for a payment plan.
3. On 28 January 2022 the respondent commenced proceedings to preserve the applicant's termination payment from the company where he was a senior executive. Interim orders were made by Judge Smith on 9 February 2022 for $720,000 to be paid into the respondent's lawyer's trust account, and for the applicant's ongoing periodic child support liability to be paid from those funds.
4. On 26 April 2022 interim orders were made by Harper J for the payment of $8,805 per week for the applicant's rent and living expenses, as estimated by the applicant, to be paid from the amount held in trust, and $35,000 for his legal costs.
5. G turned 18 years in 2020. B turned 18 years in 2022. R will turn 18 years in 2028.
6. The last periodic child support payment made by the applicant was in June 2023 from the funds set aside by Harper J. He has never paid expenses required pursuant to Order 34 of the orders of Watts J.
7. In February 2025 a Bankruptcy Notice was issued to the applicant for outstanding costs orders in favour of the respondent, made by this Court. In early 2025 the applicant filed an Application in the Federal Court of Australia to set aside the Bankruptcy Notice.
8. The applicant's evidence is he has been a driver since July 2023. He earns approximately $500 net per week. He uses a car registered in his partner's name for that purpose. On any day he drives about four hours, with a total of 20 hours each week. He worked for the electoral commission for a federal election, earning $600.

1. The parties relied on the documents set out in their respective Case Outline Documents. Both parties were cross-examined.
2. A number of documents were tendered during the course of the proceedings. I have had regard to that material, as well as the documents relied upon by the parties.

REASONS FOR DECISION NOT TO SUMMARILY DISMISS THE APPLICANT'S APPLICATION

1. As I indicated at the beginning of the hearing, I did not accede to the respondent's application to summarily dismiss the application. I now provide the reasons for that decision.
2. There is no issue the applicant has not complied with Order 31 of Watts J dated 12 January 2018 since June 2023. From that time funds retained by the orders of Judge Smith dated 9 February 2022 were depleted, in accordance with orders of Harper J. The applicant has never complied with Order 34 on the evidence.
3. The applicant has not complied with costs orders of Brasch J on 6 December 2023, and the Full Court on 21 August 2024. The Court has the discretion to refuse to hear a party who has not complied with orders (see Watson & Watson [2013] FamCAFC 25; [2013] FLC 93-530 at [25] onwards).
4. The respondent commenced proceedings to deal with the debt owed to her from outstanding costs orders through bankruptcy proceedings in the Federal Court.
5. Of the children, G is now 23 years and in full-time employment; B is 21 years and at university. R is 15 years and at school. All three spend time with their father and live primarily with their mother.
6. The parties separated in 2011. Proceedings were first initiated in the Family Court in 2012. The parties have been in dispute for 13 years.
7. At the time of the orders of Watts J of 12 January 2018, the applicant was an executive of C Pty Ltd. He had debts to the ATO. It is agreed that debt is now close to $5 million. No proceedings have been commenced by, nor agreement entered with, the ATO. He has not filed a tax return since the end of the 2023 financial year. His evidence is he is not obliged to do so due to his income.
8. On 1 February 2022 the applicant ceased to be a partner of C Pty Ltd. The applicant's evidence is that executives of the firm are required to attest to compliance with tax obligations. He could not do so, and his position became untenable. He received a payment of $720,000 from the company. He received additional payments of $41,365.53 and $191,599. The total of $952,964.53 was received by him.
9. The applicant has not been employed since that time, other than some limited work driving, and a brief engagement with the Electoral Commission for a federal election.
10. Section 102QAB of the Family Law Act 1975 (Cth) provides that:

No reasonable prospect of successfully prosecuting proceedings

(2) The court may make a decree for one party (the first party) against another in relation to the whole or any part of the proceedings if:

(a) the first party is defending the proceedings or that part of the proceedings; and

(b) the court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success

(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:

(a) hopeless; or

(b) bound to fail;

to have no reasonable prospect of success.

Proceedings that are frivolous, vexatious or an abuse of process

(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or the part is frivolous, vexatious or an abuse of process.

(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

1. Summary relief is "rare and sparingly provided" (Lindon v Commonwealth (No 2) [1996] HCA 14 per Kirby J at [14]). His Honour continued:

2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

...

6. The guiding principle is ... doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

1. I did not exercise the discretion available to summarily dismiss the matter. I am concerned that the merits of the application need to be considered so that applications which have occupied the parties, and Court, may be brought to an end.
2. The application is not frivolous or vexatious. The applicant is no longer employed at a company earning over $800,000. There are legitimate issues to be determined with respect to the applicable level of child support payable. The parties have been in litigation for essentially 13 years. It has occupied an enormous amount of their time and financial and psychological resources. It has occupied an extraordinary amount of court resources at significant cost to the public.

1. Order 31 of the 12 January 2018 orders is a departure order for periodic annual payments to be made to the respondent pursuant to s 118 of the Assessment Act. The Court has jurisdiction under s 141(1)(j) of the Assessment Act to vary or discharge a departure order (Gilmour & Gilmour (1995) FLC 92-591). Such an order may be varied provided that the applicant can satisfy the Court of a ground for departure, and that is just and equitable and otherwise proper to do so: Rosati & Rosati [1998] FamCA 38; (1998) FLC 92-804.
2. It was stated in Sathra v Sathra [2013] FamCAFC 142 at [57] that:

It follows that when dealing with an application to vary or discharge an obligation to pay periodic child support as required by a departure order, the Court must determine at the outset whether, by reason of a change of circumstance, a ground for departure exists. The Court must then determine whether it would be just and equitable, and otherwise proper, to make an order varying the arrangement established by the earlier departure order (Wild v Ballard [1997] FamCA 41; (1997) FLC 92-771 at [84,492] - [84,493]).

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;

1. Section 117(2) lists the grounds for departure.
2. In Gyselman & Gyselman [1991] FamCA 93; (1992) FLC 92-279 at 79,605, it was said in respect of 'special circumstances':

... 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. ...

1. Order 34 of the 12 January 2018 orders is an order made pursuant to s 124 of the Assessment Act for the payment to the respondent of a percentage of various expenses of the children. Under s 129 a court may discharge, suspend, revive, or vary an order previously made for non-periodic child support. Section 129(2) provides a court must not make an order under s 129(1) unless it is satisfied it would be:

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

(b) otherwise proper;

to make the order.

1. Section 129(3) relevantly provides a court cannot vary the order under 129(1), unless it is satisfied:

(a) that making the variation is justified because of a change in the circumstances of the child, the carer entitled to child support or a liable parent concerned since the order was made or last varied; or

(c) the variation is justified because of a change in the cost of living since the order was made or last varied;

1. Neither party contend that subsections (3)(d) and (e) are relevant to this determination.
2. Section 129(5) requires the court to have regard to s 117(4) (6), (7), (7A) and (8) of the Assessment Act in determining whether it would be just and equitable as regards the child, payer or payee to make an order under 129(1). Section 129(6) requires the court to have regard to s 117(5) in determining whether it would be otherwise proper to make an order under s 129 (1).
3. No issue is taken by either party that the Court has jurisdiction to deal with the application. Appropriate notice was provided to the Registrar of Child Support.

(a) Has the applicant provided disclosure? If not, what are the consequences of that?

(b) What, if any, are relevant changes in circumstances?

1. The applicant's evidence is he has one bank account with CBA, holds no joint account with any other person, and does not hold any supplementary credit card for any account operated by any other person. Prior to the first day of this hearing, he did not produce any statements from that account.
2. The applicant provided no detail of expenditure of money received following the orders of Harper J. He agreed he was aware that an issue in the proceedings was his use of the funds provided through order of Harper J of 26 April 2022. Although he initially gave evidence he had complied with the request, he in fact had not produced documents prior to July 2023. In cross-examination he said, "my understanding was I had provided all the way back to what was asked. There are a lot of documents there. ... I knew that they were similar to the ones that you had subpoenaed, so there was no reason not to provide it".
3. The respondent issued a Notice to Produce to the applicant to produce his bank records from 1 April 2022 to the date of hearing. The applicant had not disclosed his bank records prior to the hearing at all. He provided his bank records for the first time on the morning of the hearing dated from July 2023 to the date of hearing. This does not in any way meet the requirements of disclosure on the applicant, which obligation commenced from the start of these proceedings.
4. During the course of the hearing upon further request the applicant provided bank statements for April 2022 to June 2023. A further call was made for the period 1 February 2022 to April 2022. He did not produce those documents overnight.
5. The applicant drew $444,018 in cash from 29 March 2022 to June 2023. From June 2023 to date there were cash withdrawals of $76,000. He does not provide any specific evidence about use of cash withdrawals in his affidavit.
6. The applicant has enjoyed holidays with the children. The applicant took G and his friends on annual skiing trips costing up to $5,000 on each occasion. The applicant attended a racing circut with R in March 2025, and says his partner paid. He was unaware of the costs of the tickets, and thought accommodation was "maybe $700".
7. The applicant disputed he had "recently" travelled to Melbourne for a sporting event. He then conceded he did so in January 2025 with a friend. His evidence is his partner paid for him to attend. None of the children attended. He and his friend drove back and forth. He estimated it cost $300 or $400. When probed whether that covered travel, accommodation and attendance, he varied the amount to "maybe $600". His evidence in this area was typical of his evidence more broadly. He did not give proper consideration to his answers, and was frequently required to correct matters once challenged.
8. The applicant has been a member of the Sydney Sporting Club since 2018. The annual costs are $2,100, he estimated, paid by his partner. He was quick to say that G and B use the facilities more than anyone else.
9. The applicant's evidence is that his partner meets his living expenses and rent. In 2019 they moved from suburb O to suburb RR, at a higher rental cost as "the only option available". His evidence is he did so to be nearer his children. There is no evidence provided in support of that contention. The residential tenancy agreement is in his sole name. The total rent is $1,500 per week. His evidence is, "our rent is sometimes paid on a basis of 2 days at a time and we are at a constant and substantial risk of eviction ...". He provided no evidence in support of this statement.
10. In his Financial Statement the applicant deposes to personal expenditure of $4,477 per week from his income of $500 per week. This includes $1,500 per week in rent. He refers to his partner paying $635 per week from her gross income of $2,879 towards expenses for his benefit, "general living and rent". This exemplifies the difficulty in placing reliance on assertions by the applicant. He agreed he does not make any payment towards rent. His partner pays it. Nor does he make any payment towards child support, which is listed in the Financial Statement as paid at $2,428 per week. There is no reference in the Financial Statement to payment by his partner of the other kinds of expenses referred to above, such as holidays and sports club memberships.
11. The applicant agreed his partner had not made any payments on his behalf to meet his child support obligations. He was taken to his last tax return for the financial year ending 30 June 2023. He made a declaration in that document that his spouse paid child support on his behalf. He told this Court that was an error.
12. On 16 February 2022 the applicant received $191,599 from the Employer Trust as part of his payout from the company. The same day he transferred to his partner $100,000. The next day, 17 February 2022, he transferred $66,840.58 to her. He says he did so to make provision for future rent. There is no evidence from his partner about use of those funds, nor any other evidence which would support that assertion.
13. On 2 May 2022 $35,000 pursuant to the orders of Harper J for legal costs was paid into the applicant's account. The same amount was transferred to his partner's account the following day. His evidence is she managed payment of rent and legal expenses on his behalf. The same day she transferred $20,000 back into the applicant's bank account. There is no explanation provided for this by the applicant, nor his partner.
14. Transfers were made between April 2022 and 30 June 2023 to a credit card company of $56,815, and CBA credit card of $10,011. The applicant asserts those are to his partner's credit card, as he did not have one. Again, there is no evidence from his partner about this. He paid a membership fee to a recreation group of $23,940 on 4 May 2022. None of these are referred to in his evidence for these proceedings.
15. The bank statements produced by the applicant for the first time at court demonstrate cash withdrawals of $444,018 over 15 months between 29 March 2022 and 30 June 2023. He says that was spent on general living, boating, going out, and travel.
16. The applicant paid $27,500 as a voluntary superannuation payment. A specific request for disclosure was made by the respondent's solicitors for all Financial Statements and/or complete member benefit statements for superannuation entitlement held by AF Limited 1 July 2023 to 31 December 2024. The applicant did not produce documents sought, in breach of his duty of disclosure.
17. The applicant did not make provision from money received for any future payments of child support. He did not pay any child support, periodic or expenses from the moneys allocated directly to him by Harper J's orders. The periodic payments of child support ceased from June 2023. The applicant did not pay any of his debt to the ATO from those funds.
18. There is no evidence from the applicant's partner on any of the important matters outlined above. The applicant has not provided bank statements or other documents evidencing her payments of his expenses. I accept that I am entitled to draw the inference that evidence from his partner would not have assisted the applicant.
19. The applicant has not requested his partner direct any funds towards meeting his debt to the respondent, rather than fund his leisure and holiday activities. That some activities are shared with the children does not excuse his failure to meet child support obligations. While it is not his partner's duty to meet his debts or child support obligations, he could have requested those funds be so utilised. That he did not do so is indicative of his attitude that he is not required to pay in accordance with his obligations.
20. The applicant asserts he paid counsel's fees of $25,000 in 2023 from the funds from C Pty Ltd. A further amount of about $5,000 has been met by his partner. The orders of Harper J provided him with $35,000 for costs. He therefore retained $10,000 from that amount for other purposes. He provided no evidence of use of that money.
21. I accept that the applicant's failure to disclose, and to properly address matters put to him in the witness box, mean that I cannot place reliance on his uncorroborated evidence. Additionally, I should not be unduly cautious about making findings sought by the respondent.

WHAT, IF ANY, ARE RELEVANT CHANGES IN CIRCUMSTANCES?

1. The applicant's lack of disclosure makes ascertaining changes to his financial circumstances difficult. He is no longer a partner in a company, with income in excess of $800,000. His evidence is that he is a driver earning $500 per week. He otherwise relies on his partner for financial support.

1. The respondent is engaged in the same business as at the time of the hearing before Watts J. She is self-employed through A Pty Ltd and AC Pty Ltd which operates AE Centre. She describes her occupation as "[manager]" in her Financial Statement. She has been in this role for 22 years.
2. The respondent received title of the property she resides in through the orders of Watts J. The three children continue to live with her. She values the property at $2.5 million in her Financial Statement. No application was made for valuation of that property by the applicant. There can be no valid criticism of the respondent that she did not obtain a valuation.
3. The respondent sets out her interest in A Pty Ltd and AC Pty Ltd in the Financial Statement at $1,000. She agreed that was not accurate, and an error. I do not accept she deliberately attempted to mislead the Court about her financial position.
4. She did not disclose an interest in AD Pty Ltd. That company holds half the shares in AC Pty Ltd. She holds all shares in AD Pty Ltd. I accept that by disclosing her interest in A and AC she has demonstrated the structure of AE Centre, the business she operates with her partner. No valuation was sought of the business. The equipment for the business is leased. Her evidence is that valuations were completed for the hearing before Watts J and the business has decreased in value since. She attributes this to 19-year-old software which needs to be updated to be in line with NSW Health requirements for use of cloud-based technology. She was clear about the difficulties associated with the computer system. There is no issue she has used her resources to provide for the parties' children. For the reasons outlined I accept her evidence.
5. It was put to the respondent that her gross income of $6,307 and expenses of $6,287 per week must be inaccurate when considered with her tax payable at $2,500 per week. This figure was put to the respondent even though the figure in her Financial Statement is $2,001. There was no submission about this discrepancy. She referred to using a credit card when required to meet shortfalls. I note that tax is not paid weekly although the Financial Statement requires it to be calculated on that basis. I accept that she has sought to present an accurate picture of her financial situation.
6. The respondent has a debt to her mother of some $800,000. Her mother has met her legal expenses and provides her with financial support. The applicant tendered a page of Transcript from 18 July 2017 (Exhibit 20). The respondent's evidence was she was unaware of her mother's financial position. Her mother has six children and 18 grandchildren. Her mother indicated to her that she cannot help her forever. I accept the respondent has no entitlement to support from her mother, who could decide to cease that support at any time.
7. Issue was taken with respect to the respondent's disclosure of superannuation entitlements. Superannuation amounts have been disclosed, including in her tax returns. I accept she has made no voluntary contributions to superannuation. There is no relevant criticism that can be made with respect to disclosure of superannuation entitlements.
8. The Part N expenses in the Financial Statement are provided for all three children. Her evidence is one third is attributable to R, who is the only child under 18 years. The exception to this is education expenses which only relate to him. The respondent clarified this during cross-examination. I accept that is the way Part N should be read. The total Part N expenses listed for R are $1,137.33.
9. I have dealt with the expenses pursuant to Order 34 elsewhere in these reasons. I accept the respondent's calculation of those expenses, and the applicant's share at $74,973.73. I note the applicant disputed whether some matters fell within Order 34, however no issue was taken with the calculation of his percentage share.
10. The respondent has continued to provide a home for the children and herself, by working hard and meeting expenses, as she did at the time of the previous orders. The respondent has continued to be responsible for the children's extracurricular and other expenses.

WHETHER ORDER 31 SHOULD BE VARIED OR DISCHARGED

1. The applicant contends that grounds under s 117(2)(a)(iii), and s 117(2)(c)(ia) and s 117(2)(c)(ib) are made out. That is, that in the special circumstances of the case the capacity of the applicant to provide financial support for the child is significantly reduced because of his commitment to support himself; that in the special circumstances of the case application in relation to the child 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 applicant for the child because of the income, property and financial resources of either parent or because of the earning capacity of either parent.

Change in circumstances with respect to the children

1. There has been a change to the children's circumstances since the orders were made. G turned 18 years old in 2020 and is in full-time employment. B turned 18 years in 2022 and is at university. This change is clear in the expenses listed by the respondent in the Section 50 schedule at Exhibit 6. For example, health insurance payments are calculated as diminishing from the initial 75 per cent for the three children, excluding the respondent, to 50 per cent when G turned 18 years and then 25 per cent when B turned 18 years.
2. Both parties include G as an income earner in their household for the purposes of Part E of their respective Financial Statements. The applicant lists his income at $1,539, and the respondent at $1,204. No issue was taken with the difference in those statements. The significance is that both agree he is currently employed. He does not make contributions to the general household expenses in either parent's house.
3. Section 12 of the Assessment Act refers to child support terminating events as, relevantly, the child turning 18. The orders make no distinction between payment for one or three children. There is no express provision for payments to continue after 18 years for the purposes, for example, of tertiary education. When considering the costs of maintaining the children this is a relevant change in circumstances since the Order was made.

The applicant's commitments to enable him to support himself

1. In relation to s 117(2)(a)(iii), the applicant says he does not have the financial resources to support himself adequately. He cannot find gainful employment at the moment, other than the work he is doing for a transport company. He "lives hand to mouth" in terms of paying rent.
2. The applicant's Financial Statement provides his current weekly expenses. As referred to previously, he lists expenses that he does not meet, and has not done for years. This makes ascertaining his actual expenses difficult. Additionally, his failure to disclose expenditure, cash withdrawals and funds transferred to his partner makes it impossible to know whether payments are made by his partner for his benefit from finds previously provided by him.

Change to the applicant's income and earning capacity

1. With respect to s 117(2)(c)(ia) and s 117(2)(c)(ib), the applicant argues his failure to comply with orders is a function of his change of financial circumstances. He is no longer employed by a company as he was at the time of the orders made by Watts J. He is now working as a driver.
2. The applicant is a qualified professional. His role at the company has been described as "niche", in that he did not work as a professional. Rather he was involved in the consultancy side of the business.
3. The applicant's evidence is he needed a break or sabbatical from employment, which was significant in his decision to leave the company. Elsewhere he says his tax situation made his ongoing position untenable, and he was required to leave. I accept he had accrued long service leave, as the records from the company state. Although he denied the proposition, I accept he could have utilised long service leave to have a break without leaving the practice. I accept he left the firm because he was no longer able to comply with ATO requirements, as the firm required.
4. The applicant has made no applications for further employment. He has made enquiries about roles which he has not pursued. His affidavit confirms, "I believe I could achieve a business development role" which would have remuneration of $200,000 per annum. He gave evidence he is "being constrained from actually working, given the orders that are in place" because if he earns less than $300,000 any income would be consumed by the current orders. This is a startling attitude to take towards his financial obligations. He provided no documentary evidence of applying for any employment at any level of remuneration.
5. The applicant is no longer a member of the profession. His evidence is he could not meet annual fees in the order of $1,200. I accept he could have met this expense from the funds made available by Harper J, however he chose not to: "I've never practised as a professional, so I didn't see the value in that, in any case".
6. The applicant contends he was hit with a ball playing squash in 2024. He says he has diminished eyesight in his right eye which is permanent. The effect of that is it is difficult for him to concentrate to drive or read documents for "extended periods" which impacts his capacity for employment. His work as a driver would suggest that it does not impede his ability to drive for periods of up to four hours. He did not provide any evidence from a treater or expert on this topic. I do not accept the applicant's assertion that his injury impedes his capacity to obtain employment unsupported as it is by any medical evidence.
7. I accept that the applicant has a capacity for employment that he has chosen not to utilise. On his assessment he could obtain employment earning $200,000.
8. The applicant had a significant tax debt at the time of Watts J's orders. That debt has grown due to the applicant's failure to make any payments, and interest accruing. I do not accept that amounts to a special circumstance warranting variation of the order within the meaning of the legislation. He had a debt that has grown due to his inaction, and compound interest accruing.
9. The applicant's evidence is that from enquiries he has made he could get a position earning around $200,000 in a business development role. He has not pursued these opportunities. That does not diminish that, on his own assessment, he has an earning capacity in terms of the Assessment Act of $200,000.

1. I have had regard to s 4 of the Assessment Act in making my decision. That sets out the objects of the Act, which is to ensure children receive a proper level of financial support from their parents. Parents should provide for their children according to their capacity to provide financial support.
2. In 2014, orders were made to garnish the applicant's earnings from C Pty Ltd for the payment of child support, as he had failed to make payments himself.
3. The applicant gave evidence that he understands his duty to provide disclosure, and that he has discharged that duty. I have made findings above with respect to his failure to comply with that duty. He failed to fully comply with the Notice to Produce dated 3 June 2025. That he was unrepresented at various times during the litigation does not relieve him from his duties.
4. The consequence of the applicant's conduct in failing to disclose is "the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature" (Weir & Weir [1992] FamCA 69; (1992) 16 Fam LR 154 at 158).
5. For the balancing exercise required to consider justice and equity the applicant argues the Court should take into account his financial situation. If there is no order for departure from the previous order that will cause hardship, given his evidence of income of $500 per week. He argues the respondent has the capacity to meet their child's needs and it is just and equitable that she do so with no assistance from him. I do not accept that argument.
6. On his own evidence I find the applicant has the capacity to earn $200,000. Child support for R can be calculated on that basis. For these reasons I propose discharging Order 31 as and from 19 June 2023, because it is from that date that his financial circumstances changed and he was unable to meet the child support payments. From that date child support will be payable for one child on an income of $200,000. Having considered the child support formula and the applicant's circumstances, I have determined this amount will be $4,000 per year to be paid on a monthly basis. That amount will be adjusted annually for CPI in accordance with Order 32.

WHETHER ORDER 34 SHOULD BE VARIED OR DISCHARGED

1. The applicant in cross-examination quibbled with some of the terminology used by the company for the payout he received. This is despite adopting much of that language in his affidavit of 1 May 2025. He received a total of $579,942.66 from the respondent's solicitors trust account by way of weekly payments of $8,805 per week between April 2022 and June 2023. None of that money was used to pay down his debt to the ATO. His evidence is additional payments on leaving the accountancy practice were expended by June 2023. None of the money received went towards payment of expenses for the children required by Order 34, nor to pay down tax debt.
2. The applicant has never met his obligations to contribute to expenses of the children as set out in Order 34. There was reference in evidence to minor amounts received by the respondent. There is no issue payments have not been made in accordance with the order. The respondent's evidence in the Section 50 Schedule (Exhibit 6) is that the applicant has not met almost $75,000 worth of expenses that have fallen to her. The respondent's affidavit evidence is that he has not met over $100,000 worth of expenses. I prefer the evidence of the Section 50 Schedule, as it sets out a detailed list of the expenses.
3. The applicant disputes some of the expenses claimed by the respondent. He does so on various bases. He contends that extracurricular activities must be through the school, and those conducted external to the school are not extracurricular activities. I do not accept that is the ordinary meaning of extracurricular in the context of children's activities. The word is defined in the Macquarie Dictionary as "outside the regular curriculum". It is not referable to where it takes place. It may relate to activities such as sport, religious activities, dance, art, youth clubs, and chess. Some schools may provide activities, others do not. The children attended a public high school where limited extracurricular activities were provided through the school.
4. The children have received tuition assistance at times for their high school education. I accept that is an allowable expense under "additional tuition".
5. The applicant disputes school fees paid for the children because those payments are not compulsory and are made voluntarily. Parents are requested to meet fees. Modest fees have been paid for the children's public education. I accept that payment of such fees towards educational expense is covered under Order 34.
6. The applicant complained about costs claimed for the children's participation in Youth camps. The respondent asserts public high schools do not provide religious instruction. The applicant does not seriously contest the respondent's assertion. Under the orders the children spent time with each parent around religious and cultural special days. I accept that attendance at the Youth camp provides religious and cultural instruction to the children. I accept that was an appropriate extracurricular expense within the terms of the Order.
7. The applicant's dispute over specific expenses does not explain his complete failure to meet any of the expenses referred to. The orders do not require as a precondition to payment that the respondent advise the applicant of activities being undertaken. To the extent the applicant seeks to rely on that to avoid liability for an expense, I reject that argument.

Change of circumstances of the child, payer or payee

1. There are now relevantly one, not three, children. Otherwise, R is a 15-year-old being educated at a public school as he was previously.
2. The payer, being the applicant, is no longer an executive at C Pty Ltd. As found above he is no longer able to hold such a position in a major company due to his debt to the ATO. Accordingly, I have found his income earning capacity has reduced from over $800,000 to $200,000.
3. The respondent has continued to earn an income commensurate with her capacity to do so. She is meeting expenses for herself and the children as she was at the time of the final orders, taking into account that only R is under 18 years.

1. I accept there have been incremental changes in the costs of living since the orders were made. There is no evidence before me which would suggest any other change.

Just and equitable considerations having regard to s 117(4), (6), (7), (7A) and (8) of the Assessment Act

1. The parents are the only people with a duty to support R. Neither has a duty to support any other person. He is at high school and has no earning capacity or property. He has no special needs.
2. At the time of termination from C Pty Ltd the applicant was earning $893,513, with an additional amount of $260,543 per annum from the C Pty Ltd Employer Trust. He received $952,964.53 from the firm on leaving. He was in a position to meet his child support obligations pursuant to the orders of Watts J until that fund was expended.
3. I have already referred to the difficulties in placing reliance on the applicant's evidence with respect to expenditure of funds due to his lack of disclosure. Although there is no pool of money identifiable, it is not clear if all funds he received from the termination have been expended.
4. The applicant received a package including notice, long service leave, and funds from a trust, according to the documents from C Pty Ltd. That money provided his income until those funds were expended. I accept that from the end of that period the applicant's capacity to earn at the previous rate as an executive at a company has diminished. I have found he has an earning capacity of $200,000 he does not exercise.
5. The applicant continues to owe significant sums to the ATO. Although that is entirely the fault of the applicant, I accept it means he cannot be employed in a similar position to that which he previously held. A debt of almost $5 million to the ATO is likely to impede partnership at a company. He has referred to the requirement by firms for declarations of full compliance with the ATO as required by the professional body. That is a declaration he could not make.
6. Counsel for the applicant argues the applicant is now earning $500 per week driving. He has no capacity to earn an income otherwise, and no resources. Additionally, he owes a debt to the ATO and faces looming bankruptcy. The applicant argues that his capacity to provide for the child is reduced due to his commitment to support himself.
7. The respondent co-owns and operates a business from which she derives an income. She and the children reside in the property she received from the orders of Watts J. She has met direct and indirect costs associated with all the children, and now R, since the orders. The applicant has not met his obligations to contribute to the expenses of the children as ordered to the extent of almost $75,000. The respondent has a loan of $800,000 from her mother for expenses, particularly of litigation with the applicant. She has a stable income and capacity to support herself.
8. In balancing whether it would be just and equitable and otherwise proper to vary the order made pursuant to s 124 for the applicant to pay 87.6 per cent of the particularised expenses for the children I accept that the change in the applicant's circumstances means it would not be just and equitable and otherwise proper to continue to require him to meet those amounts. He is no longer in a position to earn the high income that he used to.
9. I propose discharging Order 34 to the same date as the order for periodic payments. The applicant has not paid around $75,000, which has accumulated since the orders were made. That is, he chose not to pay in accordance with orders at a time he was earning over $800,000 and in receipt of termination moneys provided by Harper J's orders and lump sum amounts he retained. I accept he had the income to meet those payments until 19 June 2023. Adjusting the Section 50 Schedule to account only for expenses accumulated between 2018 and June 2023, I find that he has arrears of $66,949.63, which will remain due and payable.
10. I accept that the discharge of the order means that expenses will fall entirely on the respondent. This is unfortunately what she has been doing due to the applicant's delinquency. I am not satisfied that making an order for payment of expenses would be other than an exercise in futility, and has the potential to embroil the respondent in further litigation, with the attendant financial and emotional cost.
11. The applicant has the undisputed capacity to earn an income of $200,000. In those circumstances he can make arrangements to meet the arrears.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle.