Baden and Baden

[2018] FCCA 389

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADEN & BADEN [2018] FCCA 389

Catchwords:
CHILD SUPPORT – Enforcement of arrears – determination of amount outstanding – whether amounts outstanding are covered by consent order – discretion to enforce not exercised.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.79
Federal Circuit Court Rules 2001 (Cth), rr.25B.07, 25B.13

Cases cited:

Mathieson & Hamilton [2006] FMCAfam 238

Wreford & Caley [2010] FamCAFC 21

Applicant: MR BADEN

Respondent: MS BADEN

File Number: MLC 3449 of 2008

Judgment of: Judge Baker

Hearing dates:

19 July 2017, 9 November 2017,

30 November 2017

Date of Last Submission: 30 November 2017

Delivered at: Hobart

Delivered on: 20 February 2018

REPRESENTATION

Counsel for the Applicant: Mr Baden in Person

Solicitors for the Applicant: N/A

Counsel for the Respondent: Ms Paull of Counsel

Solicitors for the Respondent: Sievers Lee

ORDERS

1. The Initiating Application filed 5 May 2016 be dismissed.

2. The Response filed 21 April 2017 be dismissed.

3. The Respondent’s application for costs is adjourned to a date to be fixed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3449 of 2008

MR BADEN

Applicant

And

MS BADEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father (‘the father’) filed an initiating application seeking that a consent order made 8 December 2010 be dismissed.

2. The consent order is for the provision of child support otherwise than in the form of periodic amounts. The order provides that the father pay one half of the school fees for [X] born 1996, [Y] born 1998, and [Z] born 2002, including tuition, uniform, book and extra-curricular activity costs, as and when they fall due by way of substituted child support under Part 7 Division 5 of the Child Support (Assessment) Act 1989 (Cth) (‘the Act’) – such payments not to be credited against any periodic child support otherwise payable.

3. The order also provides that the father pay one half of [X]’s counselling costs levied by Relationships Australia as and when they fall due, or in the event the wife pays such costs in the first instant, he shall pay her his one half share within 14 days of having been provided with a receipt.

4. The respondent mother (‘the mother’) filed a response seeking that the father’s application be dismissed; the final order made on 8 December 2010 remain in full force and effect; and the father reimburse the mother for payment of his share of the children’s expenses pursuant to the final orders made on 8 December 2010. An order for costs of $13,406 was also sought.

Background

1. The parties married on 1994 and separated on 5 September 2006.

2. On 24 February 2010, parenting orders were made that provided that the children live with the mother; [X] spend time with the father as agreed; and [Y] and [Z] spend time with him on five nights per fortnight and equal time during…