Bandi & Dora

Case [2024] FedCFamC1F 730

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bandi & Dora [2024] FedCFamC1F 730

File number(s): SYC 3377 of 2022
Judgment of: CURRAN J
Date of judgment: 17 October 2024
Catchwords: FAMILY LAW – CHILD SUPPORT – interim application for departure – where the mother seeks a departure order for non-periodic child support – where the mother seeks for the father to pay for the child’s school expenses – where the father seeks departure order for non-periodic child support – where the father seeks for both parties to equally share in the child’s school expenses – where the court finds the father has significant financial resources available to him – where the court finds the mother and father expected the child to be privately educated – where the court finds the child anticipates attending a private school – where the mother has primary care of the child and the father lives overseas – finding of grounds for an interim departure order – orders made for non-periodic child support departure
Legislation: Child Support (Assessment) Act 1989 (Cth), Pt 7, Div 5, ss 117, 123, 124, 125
Cases cited:

Henschel v Sartre (No 5) [2024] FedCFamC1F 339

In Marriage of Philippe (1978) 34 FLR 436

In Marriage of Savery (1990) 99 FLR 346

Lightfoot v Hampson (1996) 129 FLR 444

Muir & Rodelo (No 2) [2023] FedCFamC1F 845

Strahan v Strahan [2011] FamCAFC 126

Yanda & Jacome [2023] FedCFamC1A 116
Division: Division 1 First Instance
Number of paragraphs: 124
Date of hearing: 25 September 2024  
Place: Sydney
Counsel for the Applicant: Ms Clifford
Solicitor for the Applicant: Fox & Staniland Lawyers
Solicitor Advocate for the Respondent: Mr Gitto-Caesar
Solicitor for the Respondent: Lander & Rogers

ORDERS

SYC 3377 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BANDI

Applicant
AND:

MR DORA

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

17 OCTOBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.That the parties do all necessary acts and things to accept the enrolment for the child X (“the child”) born in 2015, to commence attending C School in 2025.

2.To ensure that the child’s place at C School is preserved and confirmed the father shall do all necessary acts and things to promptly:

(a)Sign any necessary forms from C School to confirm his consent to the child’s attendance starting in 2025;

(b)Provide C School with the information they need to send any invoices directly to his email address and confirm with C School that the mother will be copied on any invoices sent to the father;

(c)Reimburse the mother $1,050, being half of the enrolment fees already paid to C School by her within seven days of these orders being issued, to her account nominated in Order 5, and pay any other fees that may be necessary, as and when they fall due, before the child commences school in 2025.

3.That the father be solely responsible for paying, as and when each payment falls due, 100…

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Bandi & Dora [2024] FedCFamC1F 730
Case
[2024] FedCFamC1F 730
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CaseChat Overview and Summary

In the matter of Bandi & Dora, the mother and father of a child born in 2015, both sought interim departure orders under section 124 of the Assessment Act for non-periodic child support payments. The mother sought that the father be solely responsible for all the child’s education costs, capped at $20,000 per annum, while the father sought a 50/50 split of the education costs. The mother and father also disagreed on the school the child should attend in 2025. The Federal Circuit and Family Court of Australia was required to consider the financial circumstances of both parties, the needs of the child, and the impact of the orders on both parents. The court had to determine whether the orders should include provisions for shared or sole responsibility for non-periodic payments, the amount to be paid, and the school the child should attend. The court found that the father had significant financial resources and that the child anticipated attending a private school. The mother had primary care of the child and the father lived overseas. The court was satisfied it was just and equitable to make an interim departure order for non-periodic child support. The court ordered the father to pay 100 per cent of the costs of the private school tuition, books, IT levy, uniforms, compulsory excursions, compulsory sports and compulsory extra-curricular costs and all extra-curricular activities including the cost of registration, equipment and uniforms. The court also ordered the father to reimburse the mother for half of the enrolment fees already paid to the school and pay any other fees that may be necessary. The court noted that the annual rate of child support was not to be reduced.

The court made orders for the interim departure of non-periodic child support payments, finding it was just and equitable to do so in the special circumstances of this case. The court determined that the father should bear the sole responsibility for the child’s education costs, including tuition fees, books, IT levy, uniforms, compulsory excursions, compulsory sports, and compulsory extra-curricular activities, up to a cap of $20,000 per annum. The court also made orders for the child’s enrolment at C School in 2025 and directed the father to reimburse the mother for half of the enrolment fees already paid. The court excluded the father from being responsible for overseas travel or optional extra-curricular activities that were not the usual extra-curricular activities offered to students. The court noted that these orders were interim and subject to change pending the final determination of the property proceedings in the United States and the final parenting orders in Australia.

Orders

Orders of the court

SYC 3377 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BANDI

Applicant

AND:

MR DORA

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

17 OCTOBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. That the parties do all necessary acts and things to accept the enrolment for the child X (“the child”) born in 2015, to commence attending C School in 2025.

2. To ensure that the child’s place at C School is preserved and confirmed the father shall do all necessary acts and things to promptly:

(a) Sign any necessary forms from C School to confirm his consent to the child’s attendance starting in 2025;

(b) Provide C School with the information they need to send any invoices directly to his email address and confirm with C School that the mother will be copied on any invoices sent to the father;

(c) Reimburse the mother $1,050, being half of the enrolment fees already paid to C School by her within seven days of these orders being issued, to her account nominated in Order 5, and pay any other fees that may be necessary, as and when they fall due, before the child commences school in 2025.

3. That the father be solely responsible for paying, as and when each payment falls due, 100 per cent of all school fees and any associated education costs whether direct or indirect as a result the child attending C School such that the father shall cause to be paid all tuition fees and all incidental education expenses included in the invoice from C School which may include but is not limited to items such as core curriculum charges, sporting and extra-curricular activity charges, school transport, excursions, school camps, textbooks, school uniforms, sport uniforms, sports equipment, academic items and other clothing or items which require the school logo and all fees and charges as determined by the school for school activities and outings which the child may participate.

4. Where possible, the payment made by the father pursuant to Order 3 is to be made directly to C School or any third party associated with the school (eg uniform shop) in such amount that satisfies 100 per cent of their invoice, as and when each payment falls due. If it is not possible for C School or the third party to be invoiced direct to the father or be paid directly by the father, the mother will determine alternate payment details for the father to facilitate payment or reimbursement to her.

5. If the mother pays an expense which the father is liable to pay as set out in these orders, the mother shall provide to the father a copy of the receipt and a photo of the items she purchased for the child and the father shall reimburse her to her nominated account, within seven days of the mother sending the receipt.

6. In respect of the incidental educational expenses the amount of such expenses to be paid by the father shall be not more than $20,000 for each calendar year.

7. The father shall not seek to reduce his periodic child support under the current child support administrative assessment or obtain a credit as a result of any payments he makes to try and reduce his current child support assessment as set out in these Orders.

8. The father is not responsible for payment of any costs associated with any overseas excursions or non-compulsory excursions or optional extra-curricular activities outside of the core extra-curricular activities and sports activities usually offered to the students.

THE COURT NOTES THAT:

A. The mother has the option to change the bank account where she receives reimbursement and will notify the father if this occurs. The father is to proceed with reimbursement to the current nominated B Bank account until and unless the mother provides alternate account information.

B. In addition to the tuition fees to be paid by the father, the father shall meet associated education costs and incidental education expenses to a maximum of $20,000 in each calendar year.

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.

Background

Background to the litigation

The father sought an interim child support departure order for non-periodic payments, whereby the parties shared the non-periodic amounts. If that order was made, he consented to the order for the enrolment of the child at C School commencing in Year 5 in 2025.BACKGROUND The mother was born in 1976 and is employed as a professional. The mother is presently living in Sydney. The father was born in 1977 and is working as a finance professional. The father is presently living in City D. The parties commenced cohabitation in 2006. They were married in the United States of America (“USA”) in 2007. Final separation occurred on 1 May 2019 and a Divorce Order was made in Australia in 2022. The mother commenced parenting proceedings in Australia on 19 May 2022. The parties have ongoing property proceedings in the United States, which were commenced by the father in 2022. The child currently resides with the mother in Sydney, and it is agreed that the child is to remain living in Sydney with the mother. The child currently spends time with the father in accordance with the interim orders made by Judge Morley on 23 June 2023. ORDERS SOUGHT Both parties to the proceedings are seeking a child support departure order under s 124 of the Assessment Act, being orders for provision of child support otherwise than in form of periodic amounts. These orders, however, are sought on competing terms. The areas of contention are whether the father should be ordered to pay more than 50 per cent of the child’s education costs, what those costs entail, and if so, whether enrolment of the child at C School should follow.Applicant mother The applicant mother sought orders for the father to be solely responsible for payment of the child’s school tuition fees and any direct or indirect associated education costs capped at $20,000 per annum. The orders she sought define the included education costs. The mother sought an order that, pursuant to s 125 of the Assessment Act, there is no reduction to the periodic administrative assessment paid by a father, as a consequence of the s 124 order being made. Subject to these orders being made, the mother sought an order for the parties to do all things necessary to accept the enrolment of the child to attend C School in 2025. Respondent father The respondent father sought orders for the parties to each be responsible for 50 per cent of all education expenses for the child’s attendance at C School or other agreed school and that there is no reduction to the periodic administrative assessment paid by a father, as a consequence of the s 124 order being made. The father sought orders for the parties to each be responsible for 50 per cent of the costs of extra-curricular activities conducted outside of school, provided there is agreement between the parties for the child to attend such activity. The father sought that, subject to his orders being made, the child attend C School in 2025 (unless otherwise agreed by the parties or ordered by the court). In the event the child does not attend C School, the father sought orders that the parties shall agree between themselves what will be communicated to the child about this decision and then communicate such agreed message.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After consideration of the parties respective circumstances as outlined in these reasons, together with the fact that the orders I make are interim orders which may, by reason of the parties changed circumstances following the determination of the property proceedings, be discharged, I am satisfied in the special circumstances of this case that it is just and equitable and otherwise proper to make an order as envisaged under s 125(2) of the Assessment Act that the annual rate of child support is not to be reduced. It is noted that the annual rate is currently $19,344 but there exists currently an application to vary that amount so it may change. CONCLUSION Having regard to the circumstances identified in these reasons, I am satisfied that it is just and equitable and otherwise proper to order that weekly child support be paid as assessed and that the father pay 100 per cent of the costs of the private school tuition, books, IT levy, uniforms, compulsory excursions, compulsory sports and compulsory extra-curricular costs and all extra‑curricular activities including the cost of registration, equipment and uniforms. For the avoidance of any doubt the payment of compulsory excursions does not extend to offers for overseas travel with the school or other optional opportunities the school may provide by way of non-compulsory extra-curricular activities offered to students, unless agreed between the parents.

Ratio Decidendi

Legal Principle Established

I agree the prejudice to the father is minimal in the circumstances of this case where the property matter will be finally determined in City D, as some stage in the future and the parenting matter listed and determined in this court thereafter. The final departure order application will be determined at the final hearing of this matter at that time after the evidence has been fully tested, findings will be made and consideration of the relevant factors at that time will occur. These orders are interim in nature and secure the arrangements pending final determination. I do not accept the potential change of schools for the child or the potential future costs of school fees if final departure order is made in the terms currently sought by the mother, form the basis to find hardship as contended by the father.Other Considerations Section 124(5) of the Assessment Act provides that the court may have regard to matters outside of those specified in s 124. The father contends that the orders sought under the mother’s proposal would not be just and equitable as the orders also lack certainty and create too broad of an obligation upon the father. In submissions the father asserted that the reference to “incidental education costs” and “associated education costs” is vague and would leave the father exposed to bearing a broad range of costs that he has no control in determining. The form of orders sought by the mother identifies with a level of specificity by non-exhaustive examples of expenses that are to be met and proposes a cap of $20,000. In my view, these measures do provide a level of certainty and specificity. The father contends that if the mother is granted sole decision-making responsibility on a final basis (as sought by her), she could make costly decisions (i.e. school related overseas trips, exchange programs, extra-curricular activities) without the father's involvement, yet he would be solely financially responsible for the costs of such activities. This consideration is not relevant as this is an application for an interim departure order and a determination as to parental responsibility orders is a matter for final parenting orders. Additionally, to limit the extent of the required support I will make an order for a cap as proposed and I will make an order that excludes the cost of overseas travel or optional excursions and optional non-usual extra-curricular activities, at least on an interim basis. This order will include the usual term activities and usual term extra-curricular activities that are ordinarily offered to students including the sport, music and other endeavours that students are encouraged to partake in but will exclude overseas travel and optional extra-curricular activities that are not the usual extra‑curricular activities. The father took issue with the proposed capped amount sought under the mother’s orders. The father opposes this model maintaining his preference for the “shared contributions” model, which the father deposed would “incentivise the mother to consider the financial impact of her decision, as she would also bear the cost.” In response to the capped model, the father deposed the mother may be “inclined to maximise expenses up to the cap.”