ABNER & ABNER
[2018] FamCA 114
•15 January 2018
FAMILY COURT OF AUSTRALIA
| ABNER & ABNER | [2018] FamCA 114 |
| FAMILY LAW – CHILDREN – Interim proceedings – Where there is a dispute between the parents in relation to the school one of the children should attend – Where the child wishes to attend the private school – Where the Independent Children’s Lawyer supports sending the child to the school of her choice – Where the child’s older sibling attends the private school – Where there is no evidence that either parent has the capacity to pay for the private school – Where it is ordered that the child attend the public school. FAMILY LAW – CHILD SUPPORT – Where there is an application for child support departure and payment of child support in a form other than by periodic payment – Where the father’s lawyers did not receive a complete copy of the mother’s Financial Statement – Where it is necessary, to allow the father’s counsel the opportunity to provide written submissions about the import of that document after the hearing – Where judgment is reserved in relation to this issue. |
| Child Support (Assessment) Act 1989 (Cth) ss 117, 124 Family Law Act 1975 (Cth) s 60CC |
| Beklar & Beklar [2013] FamCA 327 |
| APPLICANT: | Ms Abner |
| RESPONDENT: | Mr Abner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Robertson |
| FILE NUMBER: | SYC | 7416 | of | 2016 |
| DATE DELIVERED: | 15 January 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 12 January 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridger |
| SOLICITOR FOR THE APPLICANT: | Jo-Anna F S Moy |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Robertson |
Orders
The parties do all acts and things and sign all documents as may be required to cause the child B born … 2004 to be enrolled in and attend C School at Suburb D commencing as and from Term 1 in 2018.
Reasons for judgment will be published on a date to be fixed in relation to that Order and in relation to the competing applications under s 117 and s 124 of the Child Support Assessment Act, subject to written submissions, judgment is reserved.
Leave is granted to counsel for the father to provide any further written submissions arising from a failure to serve on the father’s solicitors Part O of the mother’s latest Financial Statement dated 28 December 2017 to the chambers of Justice Loughnan and to the solicitors for the mother within 28 days from today’s date and any responding submissions, if there are such submissions by counsel for the mother, be provided to the chambers of Justice Loughnan and to the solicitor for the father not later than the last day of February 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abner & Abner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7416 of 2016
| Ms Abner |
Applicant
And
| Mr Abner |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
This matter was listed on 12 January 2018. The listing related to a hearing in relation to a parenting issue going to the question of which school a child would commence at for the 2018 school year and issues to do with child support departure and payment of child support in a form other than by periodic payment.
I indicated to the parties at the conclusion of the hearing that I proposed to make orders then in relation to the child’s schooling and to give reasons for those orders as soon as practicable. As to child support – strictly speaking – the hearing was not able to be completed, and further submissions are to be made. Apart from those further submissions, judgment on the question of child support was reserved.
The order I made on Friday, 12 January, was an order that the parties do all acts and things and sign all documents as may be required to cause the child B born in 2004 (“the child”) to be enrolled in and attend C School at Suburb D (“C School”) commencing as and from term 1 in 2018. These are the reasons for that order. I should note that the parties were excused on delivery of reasons and that there is no appearance by or on behalf of either of the parties.
The parenting proceedings relate to the child B, who is aged 13 years at the time of the hearing. The proceedings are limited to the question of the high school that she should attend from the start of the 2018 school year. As I have indicated, there are also competing applications in respect of child support. The parents each seek a departure from the current child support assessment, and each of the parents seeks orders in relation to payments under s 124 of the Child Support (Assessment) Act 1989 (Cth) in respect of school fees.
The orders sought by the mother are contained in a minute of order dated 5 January 2018. In respect of the schooling issue she sought an order that the parties shall do all acts and things and sign all documents as may be required to cause the child to be enrolled in and attend E School, Suburb F (“E School”), commencing from term 1 in 2018 and the child, G, born in 2008 (“G”) to be enrolled in and attend H School, Suburb J, commencing in term 1, 2021.
Relevantly, among the child support orders in addition to a departure application the mother seeks that she makes an application that in addition to his periodic child support the father pay the following non-periodic expenses in respect of the children: One hundred per cent of each child’s school fees, levies and education-related costs and expenses from the date of the orders until each child completes his / her secondary education, including but not limited to all school fees, enrolment fees, non-refundable deposit, tuition fees and levies, school uniforms, school shoes and sports shoes, excursion or incursion costs and expenses including school camps, textbooks, computers, music equipment, additional classes and activities, sporting equipment and participation costs organised, invoiced or requested by a child’s school and other parent’s contributions including but not limited to such things as building levies; that those expenses shall not be expenses for which the father is entitled to seek to reduce his periodic child support and the same shall not be the subject of any claim by the father for any form of credit in respect of his periodic child support liabilities.
The orders sought by the father were set out in a minute of proposed orders dated 11 January 2018, which was exhibit 13, and those orders include the following. Firstly, that the parties shall do all acts and things and sign all documents as may be required to cause the child, the child to be enrolled in and attend C School commencing as and from term 1 in 2018. Relevantly he too refers to school fees in his child support application. Leaving out the formal provisions, he seeks that there be a departure from the current administrative assessment for the payment by him of periodic child support for the benefit of the parties’ children and the combined annual rate of child support shall be set at nil for each child for the period 1 January 2018 to 31 January 2019. On that condition he seeks an order that he would pay as and when they fall due, all compulsory private school tuition fees and levies invoiced by E School for the child, K born in 2001 (“K”), to attend that school.
Proceedings
These proceedings came before the Court in December, as I recall, and were urgently set down on 12 January 2018 to determine the issues that required determination prior to the commencement of the 2018 school year. In particular, that involved the identification of the school at which the child would commence year 7 in 2018 and the related child support departure and non-periodic payment applications.
On 12 January 2018 the parents were present and represented. Ms Robertson is the Independent Children’s Lawyer (“ICL”). She indicated her position in relation to the child’s schooling and sought and, there being no objection, was granted leave to withdraw. The hearing proceeded with cross-examination of the parents and with oral submissions.
The child has been greatly upset by her parents’ indecision in respect of the high school she will attend. Knowing that they did not agree, the parties should have settled that issue or had it addressed long before January 2018. In respect of the school dispute I was anxious to provide the parties, and particularly the child, with resolution as quickly as possible. That was the reason for making orders on last Friday and giving these reasons on a later day.
There is some complexity in relation to the child support issues, and indeed it was not possible to conclude the hearing about child support on 12 January. As the father’s lawyers did not receive a complete copy of the mother’s Financial Statement, it was necessary to allow the father’s counsel the opportunity to provide written submissions about the import of that document after the hearing. The father’s submissions are to be lodged and served within 28 days after the hearing and any submissions in reply on behalf of the mother by the last day of February 2018. Subject to those orders about written submissions judgment was reserved in respect of the child support issues.
summary facts
The father was born in 1963 and is currently 54 years of age. The mother was born in 1970 and she is currently 47 years of age. The parties were married in 1992 and separated on a final basis on 22 November 2015. The children of the parents’ relationship are Mr L, who is aged 18 years at the time of the hearing, K, who was born in 2001 and is aged 16 at the time of the hearing, B, born in 2004, who is 13 years of age, and G, born in 2008, who is aged nine.
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In 2017 the child attended M School with her younger brother, G.
As to the competing proposals of the parties – as I have identified, the mother seeks an order whereby the child will attend at E School commencing this year, and the father seeks an order that she attend C School. The fundamental issue about the child’s secondary education is whether the parents can afford the fees associated with E School. If not, there is no choice to be made.
In that context, the provisions of Part VII of the Act are not of much specific assistance in relation to this parenting dispute as might be the situation with an order about parenting responsibility or about living arrangements. The only relevant s 60CC considerations would seem to be the following:
(3)(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is 13 years of age and she has consistently and strongly expressed the wish to attend at E School from 2018. The child has been permitted and encouraged to believe that she would attend that school. Her older sister K attends the school and her parents intend that K will complete her secondary education there. I think K commences year 11 in 2018. The child is represented and the ICL supports the parties sending the child to the school of her choice which is E School, if that is practicable. Much has been made of this criterion in the written evidence and in the submissions of the parties and indeed if there was no preliminary question about feasibility, this criterion would heavily favour the mother’s application.
(3)(d)the likely effect of any changes in the child’s circumstances including the effect on the child of any separation from either of his or her parents or any other child or other person, including any grandparent or other relative of the child with whom he or she has been living.
I do not know that this criterion was designed to have a bearing on a situation such as schooling, but there is some relevance to it and, indeed, albeit largely by assertion, each of the parents relies on this criterion to some extent. At E School, the child would be at the school attended by her older sister and to be attended by some of her friends. C School is the child’s local high school and I assume that some of her classmates from primary school will also attend that school. As to the advantages of K being at the same school, the point is made in the father’s case that with K in year 11, she may have little or no contact with the child who will of course be in year 7. Nevertheless, I accept that this criterion favours the child attending at E School.
(3)(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
You would think from the descriptions in their affidavits that the parents are describing different children when they describe the child. On the one hand, the child is said to be well behind her cohort, in the last 27 per cent of the students in her grade and that she has learning difficulties. On the mother’s case, however, she is doing well. Those descriptions are presumably aimed at matching the child to the asserted advantages or disadvantages of the two schools. Again, there was no forensic examination of the latter propositions. There is in evidence a school prospectus and various assertions about whether the child would thrive or struggle in one school or the other. What is missing is any probative evidence from someone qualified to give it about which school would best suit the child. I will not add my speculation to that of the parties about those issues, and finally:
(3)(m) any other fact or circumstance that the Court thinks is relevant –
It is under this catchall provision that the critical questions arise. The fundamental issue is whether the E School fees will be paid if the child commences there. The basic E School fees are of the order of $30,000 per child per annum. There was reference during the evidence to a 10 per cent discount available for the second child of a family. That would provide about $3000 relief in respect of the child in each of the first two of her years at the school. However in my view it is not a matter of one year’s fees. In my view the child should only attend at E School in 2018 if, as presently advised, it is likely that she can be maintained there for six years. Of course children are sometimes obliged to change to a different primary or high school. A family might move to another city, necessitating such a change. In some school systems, the high school years are serviced by separate junior and senior schools or campuses. On the other hand, the problems for a child at a particular school or perceived advantages for a child at another school might prompt such a change. Those circumstances aside, the expectation is that a child will normally complete their primary or secondary education, respectively, at one school. There was no suggestion of the contrary in these proceedings on behalf of either parent. For example, it was not submitted that it would be in the child’s best interests to send her to E School in 2018 whether she would be able to attend any or all of the remaining years of a secondary education at that school or not.
School fees can be met in a number of ways. They can be paid out of the parents’ income, or they can be met out of their capital or financial resources. School fees are sometimes met through the generosity of members of the extended family. Sometimes it pleases parents to service school fees from capital or from borrowings. That said, it would be highly unusual for a Court to impose either of those latter obligations on a parent.
Adding to the complexity in relation to this issue in these proceedings is the fact that the parties’ financial circumstances are unclear. There are property settlement proceedings on foot, but they have yet to be either resolved or set down for trial. At this time there is no final agreement about the balance sheet, about the assets, the liabilities and the financial resources of the parties and of each of them or about their value. I was not asked to make findings about those things in the course of this interlocutory application, and indeed on the material before the Court that would not have been possible.
Just stopping there for the moment – as I indicated to the parties, in my view, albeit conducted at an interlocutory hearing, these are final proceedings. In my view, it is nonsense for a Court to order that in the interim, the child attend at a particular school. I take it that the parties intend that the order made will determine the issue of the child’s high schooling, unless they reach a later agreement or a Court otherwise orders.
As disclosed by each of the parties, they do not have sufficient combined income to pay the costs of the child attending at E School this year or in any other year. There are disputed issues about the income of the father and about the earning capacities of each of the parties, but in these very limited proceedings it will not be possible to resolve all of those issues in a way that identifies a likely source of those fees from the parents’ incomes.
It is only the mother who contends the E School fees can be afforded for the child, and therefore I can look to her to identify the funding source for those fees. The mother does not want the fees paid out of capital per se. By that I mean she was very clear that she does not intend to contribute to such fees from her part of the matrimonial capital. I do not mean to be critical about that position. That is an entirely rational position to take. The mother and – while they remain mainly in her care – the children, have an ongoing need for capital. They need to be securely housed and to have access to safe transport, to working appliances and to the other practical necessities. Similarly the mother does not propose, and she resists the father’s proposal, to have her income diverted to meet school fees. Again that is understandable. It will not benefit the child if she attends an elite school but there is insufficient income in her mother’s household to feed, clothe and care for her and her siblings.
However, if the child is to attend at E School the fees will need to come from somewhere. The mother does not point to a source of funds from which the fees could be paid. I asked about this during her cross-examination and as I understand it, the mother’s approach is as follows. In the past the parties were able to pay private-school fees for two of their children. It was the parents’ shared expectation that all four of their children should attend private schools. Therefore the father should pay those fees now but not in lieu of periodic child support.
The father does not agree with the second of those propositions. That is to say he does not agree that at any relevant time he shared the view or expectation that all four of the parties’ children should attend private schools. But even if he did share that view, the bursar at E School will need something more concrete than that argument. Neither parent proposes that the child’s fees at E School could or should be met from the mother’s income. However, her income is relevant because of the father’s proposal that he will meet K’s fees for years 11 and 12 but only in lieu of paying periodic child support.
In her Financial Statement of December 2017 the mother’s income is said to total $1,424 a week. It is disclosed to be made up of wages of $578 a week from a combination of permanent part-time employment in various administrative roles, $144 and $136 (a combination of $280 per week) in share dividends from NIB shares, $430 a week in child support from the father, $119 by way of Newstart allowance and $17 by way of the family payment. However, it transpires that the mother’s Financial Statement is not correct.
As to the child support figure, after that statement was filed on 22 December 2017 a new child support assessment issued, putting the weekly rate at $257 a week and not $430 a week. Unfortunately, after the mother gave her evidence in cross-examination, her counsel told the Court that the two dividend figures should have been expressed to be per annum and not per week. For reasons that were not explained, no application was made to re-open the mother’s case in that regard, and the written deposition would normally stand. That said – if the mother’s statement at part I, paragraph 38, of her Financial Statement is correct, it would be remarkable if the mother’s 1600 NIB shares with an estimated value of $10,960 produced an annual dividend of $14,560 in 2017 or in any year. In my view, it is more probable than not, that the mother’s income from dividends from her NIB shares is $280 per annum, not per week. The dividend figure would be $5.38 per week.
For formal child support purposes (as to departure and payments in a form other than periodic payment) the mother’s income from income-tested benefits would and will be ignored. That arises because of the provisions of s 117(7)(b)(ii) of the Child Support (Assessment) Act1989 (Cth). However, in terms of the Part VII inquiry under the Act and assessing what money is available, the Newstart and family payments are received by the mother. Therefore the mother’s weekly income is $976.38. The only other income‑earner in the mother’s household is K, who received $50 a week. Unlike her disclosure in an earlier Financial Statement, the mother does not disclose receiving any regular benefit from other payments made by the father. That said, in part N of her Financial Statement she refers to unclaimed cleaning expenses by reference to “included in maintenance”. I could find no corresponding reference in the document to maintenance. The concern I have is that it may be that the mother receives the benefit of some expenses paid directly by the father.
As to the mother’s liabilities again her Financial Statement is unclear, but as I understand it, she claims to spend a total of $981 a week. That is made up of $60 in fixed expenses, income tax, home and contents, motor vehicle and health insurance, and $921 in living expenses, of which $183 is for own expenses and $737 for those of the children.
There was no challenge to any particular item or quantum, but, as I have noted, the father’s counsel did not have a complete copy of the mother’s Financial Statement. He had a copy of the statement that included part N but not part O. The items and totals in part N of the document are confusing. Those issues aside, on that evidence the mother’s income is $976.38, and her expenses are $981, leaving no money to meet any part of $27,000 worth of E School fees.
The evidence about the father’s financial circumstances is very confusing. As to his income, his Financial Statement discloses a figure of $1,791 a week which is about $90,000 a year. That estimate comes from his estimate of business income. He works on his own account as a consultant. Just stopping there, in case I forget to say it – it seems to be, that that estimate of about $90,000 a year may well be the estimate accepted by the child support registrar in issuing the latest assessment on 22 December 2017. In addition to $1,731 from his business, the father discloses $49 in income from dividends from his AMP shares and $11 a week in bank interest.
Unfortunately, the father has no principled basis for making the estimate about his business income. It is his evidence that he received no income for work done in 2017. He received an amount in early 2017, but that related to work done in 2016. It is his evidence that he did work in 2017 for a business with offices in NSW and Victoria. He cannot recall whether he did work for any other persons or entities in that year. As to that work, the father has as yet received no payment. That is understandable, because he has not issued an invoice for all or any of the work he undertook. When asked how he will make the calculations in order to issue an invoice, the father said something to the effect that he would discuss the matter with his contacts in the company and that he would be assisted by reviewing his travel records. Suffice it to say – there is real doubt about the father’s income.
The father spends $3,508 a week. He says that some things will change. He is buying a property and therefore will no longer have rent to pay but there was no suggestion in his evidence that he will thereafter have a surplus of income over expenses. There is no capacity revealed there for the father to meet the child’s school fees for E School in 2018 or in any year. That said, I am sure that later in these proceedings there will be issues agitated in relation to the parties’ earning capacities.
The mother is aggrieved that the father at times has earned much more than $90,000 odd, a year. She cites income of the order of $500,000 in about 2012, 2013. The father was asked about that in oral evidence before me, and he indicated that there was an unusual year about that time when there were a number of projects and the projects just kept on calling on his time. I think it is his case that his work in 2017 occupied not much more than a day a week. If the father was working full-time, one could anticipate that there could be a significant income. But there is no suggestion from him, no concession from him that he has a capacity to earn half a million dollars a year in this year or in any year. Unfortunately his lack of record keeping does not help. He is not preparing invoices and he has not made a tax return for some years.
There is reference in the father’s case to the mother’s capacity to work. She has a qualification that could have been an avenue to professional employment. It is the mother’s evidence that her qualification is out of date and that she would have to retrain, if she was to make a significant living. Whatever might be said about that – and perhaps something more will need to be said in the child support context, those matters are of no value for the payment of the child’s school fees in the short term. Even if the mother received a salary which would be well under $100,000 a year, the mother would struggle to afford fees of $27,000 a year and possibly more, from her after-tax income. It would consume something like one half of the mother’s entire income to meet the fees, even if she was to retrain and obtain full-time work. None of those propositions can be made out in the timeframe of these proceedings.
I was referred to a decision of Beklar by the learned counsel for the father in relation to the approach to be followed in respect of school fees. With respect – I do not know that it is of much help to me. I think he might have said “a Full Court decision”, but I think it is a decision at first instance called Beklar & Beklar [2013] FamCA 327 (“Beklar”). It is a decision of Ryan J made in 2013. It was a decision made in proceedings for property settlement, spousal maintenance and child support. It is therefore different to the proceedings before me, where the first application is a parenting decision about which school the child would attend
In Beklar the Court was faced with a situation where there were no proceedings in relation to whether the children in that case would continue at their schools or change schools. The proceedings related to the way in which consideration would be given to one parent’s obligation to make payments in addition to or alongside periodic payments for child support in respect of school fees.
There is a more directly related issue in these proceedings, which is the question of the father’s responsibility for the private school feels paid for K. It is the father’s case that he will pay the school fees for K for the remaining two years of her secondary education. He seeks an order whereby he would take on the responsibility for those fees and receive relief by way of at least partial compensation by a reduction in his obligation to make periodic payments to the mother. Beklar may be of direct assistance in relation to that decision, going, as it does, to questions about the parents’ expectations and how the subject child came to be attending that school.
In my view, however, that decision is of no assistance at all in the context of the Part VII of the Act inquiry before me, even though that inquiry is almost fully determined by financial consideration.
In summary, there are factors that favour the mother’s application. They are the wishes of the child and the benefits of her being at a school with her older sibling. It was argued that there may also be support because of the special needs of the child, although the evidence does not permit any useful findings to be made about that. However, none of those things are of any assistance in establishing whether the child can attend at E School. If she cannot attend, if the fees cannot be paid, then the child will attend at C School.
Neither of the parties seeks that the fees be paid out of capital or out of borrowings. There is no third party source suggested for the fees. The Court would be extremely reluctant in relation to a six year obligation for annual fees of the order of $30,000 to commit a parent to servicing fees out of those three extraneous sources.
There are issues about the parents’ income, but on the face of their disclosure, and after they were, albeit briefly, cross-examined in these proceedings, no finding is possible to the effect that either parent has the capacity, either singularly or in combination to meet the fees of the child at E School in 2018 or any other year. In those circumstances, it is not feasible for the child to attend at E School and for that reason I made the order that she attend at C School.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 15 January 2018.
Associate:
Date: 1 March 2018
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