Bassett and Teale

[2016] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASSETT & TEALE [2016] FCCA 2177

Catchwords:
FAMILY LAW – Child support – enforcement of a binding child support agreement – whether the agreement is void for uncertainty – if not, whether the agreement ought to be to set aside – if so, whether a departure order ought to be made – where the parties have spent tens of thousands of dollars in legal fees arguing about sums less than $5,000.

Legislation:

Child Support (Assessment) Act 1989, ss.116(1)(b), 136(2)(b)(ii), 80CA, 117(1), 117(2)

Cases cited:

Thorby v Goldberg (1964) 112 CLR 597
Weiss v Barker Gosling (1993) FLC 92 -399

Applicant: MS BASSETT

Respondent: MR TEALE

File Number: MLC 4408 of 2009

Judgment of: Judge Small

Hearing date: 19 November 2015

Date of Last Submission: 21 December 2015

Delivered at: Melbourne

Delivered on: 24 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Ham

Solicitors for the Applicant: Wisewould Mahony Lawyers

Counsel for the Respondent: Ms Smallwood

Solicitors for the Respondent: Tisher Liner FC Law

DECLARATION

1. That the Binding Child Support Agreement signed by the parties on 14 May 2009 is void for uncertainty.

ORDERS

1. Pursuant to Section 116(1)(b) of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment in relation to the children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (collectively, “the children”) for the period 1 July 2016 until the completion of the 2017 (omitted) College school year in the case of X, and 1 July 2016 to 5 June 2020 or the completion of his secondary education, whichever is the later, in the case of Y.

2. In addition to any periodic payments of child support as assessed by the Department of Human Services (Child Support) from time to time (“the periodic payments”) and until a child support terminating event occurs in relation to each child, the husband shall pay the following expenses by way of non-periodic child support for the children:

   (a)65% of all private secondary fees at agreed private secondary schools including but not limited to (omitted) College for X and (omitted) School for Y;

   (b)100% of private health insurance for each child at their current rate inclusive of hospital cover and extras;

   (c)the first $1,000.00 per calendar year combined gap fee for out-of-pocket medical expenses for the children (“medical expenses threshold”) in addition to 50% of any gap fee in respect of the children above such medical expenses threshold; and

   (d)the sum of $2,500.00 per child per annum, indexed on 30 June each year pursuant to the Australian Consumer Price Index, and payable in equal sums on 1 July and 1 December each year.

3. For the sake of clarity in relation to paragraph 3(d) hereof, the husband shall pay to the wife, directly into a bank account nominated by her from time to time, the sum of $2,500.00 on each of 1 July and 1 December each year, such sum to be indexed on 30 June each year, until 1 December 2017 when the sum to be paid on each of those two dates will fall to $1,250.00 as indexed. The husband shall pay the first of the payments due under paragraph 3(d), that is, the sum of $2,500.00, within seven days of the date of these orders and that payment shall be deemed to have been paid on 1 July 2016.

4. In addition to any periodic payments of child support received from time to time and until a child support terminating event occurs in relation to each child, the wife shall pay the following expenses by way of non-periodic child support for the children:

   (a)   35% of private secondary fees at agreed private secondary schools including but not limited to (omitted) College for X and (omitted) School for Y; and

   (b)  50% of any gap fee in respect of the children above the medical expenses threshold as defined in paragraph 3(c) herein.

5. All payments for which a party is liable shall be paid as follows:

   (a)    The periodic payments payable by the husband to the wife shall be paid to the wife by electronic transfer into an account nominated by the wife from time to time, or to the Department of Human Services (Child Support), monthly on or before the 15th day of each month.  

   (b)    Payment of non-periodic child support payments pursuant to paragraphs 3(a), (b) and (c) and 5(a) and (b) hereof shall be made for each child directly to the doctor or institution concerned and if either party is required to make the full payment at the time of service, the other shall reimburse him/her within seven days of receiving an invoice and receipt for that payment.

6. No non-periodic child support payments made by the parties shall be credited in satisfaction of and in substitution for any liability for any child support which they may have pursuant to an administrative assessment made by the Department of Human Services (Child Support) from time to time. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4408 of 2009

MS BASSETT

Applicant

And

MR TEALE

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 14 May 2009, Ms Bassett (“Ms Bassett” or “the wife”) and Mr Teale (“Mr Teale” or “the husband”) signed a Binding Child Support Agreement (“the 2009 Agreement”) in relation to the financial support each would thereafter provide for their children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (collectively, “the children”).

2. Ms Bassett and Mr Teale have spent much of the ensuing six-and-a half years arguing and litigating about the 2009 Agreement’s terms. They have also conducted multiple sets of proceedings in relation to the children’s care arrangements.

3. The 2009 Agreement provides for Mr Teale to pay child support pursuant to the prevailing Child Support Assessment provided by the Department of Human Services (Child Support) (“the Assessment”), and then sets out certain other items for whose cost he and Ms Bassett are to be jointly but not equally liable.

4. Mr Teale now seeks an order that the Agreement be declared void, or, in the alternative set aside and a Departure Order made so that he would pay the relevant amount pursuant to the Assessment process, plus a certain lump sum each year which would be said to cover the remainder of the children’s reasonable expenses.

5. Ms Bassett seeks orders enforcing the Agreement and ordering Mr Teale to pay certain arrears which she says are owed under it.

6. Therefore the issues to be decided are:

   A.     Is the Agreement void for uncertainty?

   B. If the Agreement is not void, should it be set aside under s.136 of the Child Support (Assessment) Act 1989?

   C.     If the 2009 Agreement should be either declared void or set aside, should there be a Departure Order from the Assessment so that in addition to his Child Support Assessment, Mr Teale pays further sums each year as child support, and if so, how much?

   D.    If the Agreement is valid, does Mr Teale owe any arrears under its terms and if so, how much?

Background

1. Ms Bassett was born on (omitted) 1967 and is 49 years old.

2. Mr Teale is now 50 having been born on (omitted) 1966.

3. The parties were married on (omitted) 1996 and separated in 2007, divorcing on 29 September 2009.

4. As already stated, they have two children whose support is the subject of these proceedings.

5. Mr Teale works as a (occupation omitted) and earns a child support-assessed income of $319,120.00.

6. Ms Bassett works part time as an (occupation omitted) and earns approximately $200,000.00 per year.

7. Both parties have repartnered.

8. Both children attend private schools, where at the time of trial X was in Year 10 and Y was in Year 6. 

Procedural History

1. Ms Bassett first sought enforcement of the 2009 Agreement by way of an Initiating Application filed on 9 August 2013.

2. Those proceedings were resolved when Ms Bassett withdrew her Application in September 2013, she says, on the undertaking of the husband to comply with his obligations under the 2009 Agreement.

3. Ms Bassett filed an Initiating Application in the current proceedings on 6 June 2014 seeking a declaration that the Agreement is “a valid and binding Agreement pursuant to Section 80C and Section 95 of the Child Support (Assessment) Act 1989”, and that the husband pay her sums totalling $4,449.18   by way of enforcement of the Agreement.

4. The matter came before me in the duty list on 17 November 2014. At that time, I set the matter down for trial.

5. Mr Teale filed a Response on 19 November 2014 seeking orders that the Agreement be set aside pursuant to s.136(2)(b)(ii) of the Child Support (Assessment) Act 1989 (“the CSAA”). In the alternative, he sought an order that Ms Bassett's Application be dismissed with costs.

6. Mr Teale filed an Amended Response on 22 June 2015 but that Response merely added parenting orders sought and did not amend the orders sought in these proceedings.  His effective application for parenting orders was resolved by consent on a final basis about a month before the delivery of this judgment.

7. On 5 November 2015 the Wife filed an Amended Initiating Application amending the amount sought in enforcement of the Agreement to $4,367.37 plus “such further sums as may be outstanding as at the date of the final hearing on 19 and 20 November 2015”. She also sought an order that the husband pay her “costs of and incidental to this Application on an indemnity basis”.

8. Both parties have filed lengthy and detailed affidavit material annexing multiple documents[1].

   [1] The wife filed four affidavits and the husband two.

9. The matter came before me for trial on 19 November 2015 and lasted two days.  The witnesses were Ms Bassett and Mr Teale, both of whom were subjected to cross-examination by the other’s counsel.

10. At the conclusion of the evidence I sought written submissions from the parties and otherwise reserved my decision.

11. The respondent filed his final submissions on 7 December 2015 and the mother filed hers on 21 December 2015.

The 2009 Agreement

1. Before discussing the evidence and claims of the parties, I set out here the relevant parts of the 2009 Agreement:

   3.  This Agreement:

   a. is entered into as a Binding Agreement pursuant to section 80C of the Child Support (Assessment) Act 1989 (Cth) as amended by the Child Support Legislation Amendment (Reform of Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth).

   b. does not affect (or otherwise reduce any) administrative assessment of periodic child support payable by Mr Teale to Ms Bassett pursuant to the Acts from time to time[2];

   [2] "the Acts" are defined in the Agreement’s recitals as the Child Support (Assessment) Act 1989 (“the Act”), the Child Support (Registration and Collection) Act 1988, and the Child Support Legislation Amendment (Reform of Child Support Scheme – New Formula and Other Measures) Act 2006.

   c. Is operative from the date of this Agreement;

   d. will cease to operate for each of the children upon:

   i. that child turning 18 years of age or completing his or her secondary school, whichever is the later (and the parties will do all such acts and things and sign all such documents as may be required by the Child Support Agency to give effect to this provision);

   ii. or the parties entering into a subsequent Child Support Agreement terminating this Agreement.

   PERIODIC CHILD SUPPORT

   4.  Mr Teale shall pay or cause to be paid to Ms Bassett, in respect of the children, periodic child support pursuant to an assessment produced by the Child Support Agency (or alternative replacement Agency) pursuant to the Acts from time to time.

   NON-PERIODIC CHILD SUPPORT

   5. In addition to the periodic child support pursuant to an assessment produced pursuant to the Child Support (Assessment) Act 1989 or like, substitution, or amended legislation from time to time, Mr Teale shall pay in respect of both X and Y:

   a. 50% of all primary school fees and reasonable education costs including but not exclusively including: uniforms, prescribed books and stationary (sic) and excursions inclusive of travel expenses; and

   b. 65% of private secondary fees (at agreed private secondary schools including but not limited to: (omitted) Schools or (omitted) for X, and (omitted) School or (omitted) for Y) and reasonable education costs including but not exclusively including: uniforms, computer purchase (hardware and software), all books and stationary (sic); school camps and excursion, inclusive of travel expenses; and

   c. 100% of private health insurance for each child at the current rate inclusive of hospital cover and extras; and

   d. the first $1000 per calendar year combined gap fee for out-of-pocket medical expenses for the children (‘medical expenses threshold’) in addition to 50% of any gap fee in respect of the children above such medical expenses threshold; and

   e. 65% of all reasonable extracurricular expenses for each child when that child attends primary or secondary school, such extracurricular activities to be agreed between the parties and failing agreement, for three (3) extracurricular activities per term per child.

   6. Ms Bassett shall pay for non-periodic child support for each child:

   a. 50% of all primary school fees and reasonable education costs including but not exclusively including uniforms, prescribed books and stationary (sic)  and excursions inclusive of travel expenses; and

   b. 35% of private secondary fees (at agreed private secondary schools including but not limited to: (omitted) Schools or (omitted) for X, and (omitted) School or (omitted) for Y) and reasonable education costs including but not exclusively including: uniforms, computer purchase (hardware and software), all books and stationary (sic); school camps and excursion, inclusive of travel expenses; and

   c. 50% of any gap fee in respect of the children above the medical expenses threshold as defined in clause 5(d) herein; and

   d. 35% of all reasonable extracurricular expenses for each child when that child attends primary and secondary schools such extracurricular activities to be agreed between the parties and failing agreement, for three (3) extracurricular activities per term per child.

   METHOD OF PAYMENT

   7.  The periodic child support payments payable by Mr Teale to Ms Bassett shall be paid to Ms Bassett, payable monthly in advance on or before the 15^th day of each month, by direct debit into an account nominated by Ms Bassett from time to time.    

   8.  Payment of non-periodic child support payments by Mr Teale for each child shall be made directly to the doctor or institution, however if Ms Bassett is required to make the payment upfront and Mr Teale is not available to make immediate payment, Mr Teale shall pay to Ms Bassett within seven (7) days of receipt of invoice from Ms Bassett.

   9.  Payment of non-periodic child support payments by Ms Bassett for each child shall be made directly to the doctor or institution, however if Mr Teale is required to make the payment upfront and Ms Bassett is not available to make immediate payment, Ms Bassett shall pay to Mr Teale within seven (7) days of receipt of invoice from Mr Teale.

   10.    That the provisions of non-periodic child support payments made by Mr Teale are not to be credited in satisfaction of and in substitution for any liability for any child support which Mr Teale may have pursuant to the provisions of the Acts nor shall they reduce his obligation to pay periodic child support or any other child support liability from time to time.

   REGISTRATION

   11. The parties shall forthwith do all necessary acts and things to make application to the Child Support Registrar for acceptance of this Agreement under the provisions of Section 88 of the Act.

   12. The parties shall forthwith do all acts and things necessary to register this Agreement in the Family Court of Australia pursuant to the provisions of Rule 23.01 of the Family Law Rules 2004.

2. I note here that the relevant portions of the 2009 Agreement are not able to be severed from the whole so as to make them voidable, nor are they able to be rewritten to provide better clarity, as s.80CA of the CSAA states clearly that a binding child support agreement must not be varied.

The Notation to the 23 July 2012 Orders

1. On 23 July 2012, the parties signed consent orders in relation to parenting proceedings. A Notation to those orders stated as follows:

   That the Mother and Father intend to forthwith enter into a fresh Binding Child Support Agreement (thereby also entering into a Termination Agreement with respect to the Binding Child-Support Agreement dated May 2009) to provide as follows:

   (a) that paragraph 5(b) read “65% of private secondary tuition fees (at agreed private secondary schools including (omitted) School for X and (omitted) School for Y) and 50% of all school camps, excursions and travelling costs associated thereto, provided the parties agree to such overseas camps/excursions.

   (b) That the remainder of the existing paragraph 5(b) be deleted

   (c) That paragraph 5(e) be deleted

   (d) That there be the inclusion of a paragraph to the effect that the Father shall pay to the Mother the sum of $3,500 per annum, to be indexed annually in accordance with the Consumer Price Index, such payments to be made by the Father to the Mother’s nominated bank account quarterly, on the first Friday of each of September, December, March and June for school and activity related expenses, excluding school fees.

2. In other words, on 23 July 2012, the parties expressed an intention to the court to replace the provisions of the 2009 Agreement which relied on the parties to agree on what “reasonable educational costs” and “reasonable extracurricular expenses” mean.

3. If the agreement set out in the Notation to the orders of 23 July 2012 had been executed, it is possible that these proceedings would not have been necessary.

4. The reason given by the wife for the non-execution of the new agreement, both in her Affidavit material[3] and at trial, is that at the time that her signature was required, she considered that the husband owed her the sum of $2,059.00 in non-periodic child support payments under the 2009 Agreement, and she was not prepared to sign the new agreement without payment of that sum.

   [3] Affidavit of the wife sworn and filed 6 June 2014 paragraph 11

5. As the husband did not agree to pay that sum, believing that any arrears under the 2009 Agreement would be waived upon signing the new agreement, the new agreement was never signed.

6. This is but one example of this couple’s absolute inability to agree on matters of child support, even when disagreement is detrimental to both of them, since the 2009 Agreement was signed.

Issues and Evidence

A.Is the 2009 Agreement void?

1. There is no dispute between the parties that all of the technical requirements for the document signed on 14 May 2009 to be a Binding Child Support Agreement under Part 6 of the CSAA are present in the document’s contents.

2. What the husband argues is that before the court can even look at the wording of the document to decide whether it is binding or not, the question of whether there ever was an agreement at law must be addressed.

3. The husband’s argument is that the 2009 Agreement is void for uncertainty because the parties were not ad idem when they signed it, as the ensuing disagreements about their obligations pursuant to its terms show them not to have had a common understanding about the meaning of “reasonable education costs” and “reasonable extracurricular expenses” at that time.

4. There is some force to the husband’s argument on this point.

5. The notation to the orders of 23 July 2012 indicates that the parties were already in dispute in relation to what were “reasonable education costs” or “reasonable extracurricular expenses”, and that they had negotiated a resolution to that dispute through the proposed new binding child support agreement.

6. The very fact that the parties have been in dispute about the meaning of those terms virtually ever since they signed the 2009 Agreement indicates that they were not in agreement in relation to their meaning at the time of signing it.

1. Their evidence to the court, both in writing and in person, gives the very clear impression that these parties could not agree that the sky is blue.

2. There are multiple examples in the evidence of disputes about the payment of the children’s expenses. Some (but by no means all) of these are:

   ·    A dispute about Myki cards and the children’s requirements for school camps (the wife asserting and the husband denying that these are all “reasonable educational costs”);

   ·     A dispute about whether the husband’s payment of a child‘s school books at the full retail price is a “reasonable education cost”;

   ·    Disputes about whether a medical account should be paid upon production of an invoice or whether a party is required to provide a receipt as well;

   ·    A dispute about whether Mr Teale was obliged to pay a share of the costs for an external tutoring program in which Y was enrolled by Ms Bassett; and

   ·    A dispute over whether the husband should pay for a share of a new tennis racquet for Y in the sum of $72.

3. Under cross-examination at trial, Ms Bassett agreed that arguments between her and Mr Teale about which expenses were or were not included in the 2009 Agreement were “intractable” and “never-ending”.

4. She stated that these proceedings were brought in order to “expose” Mr Teale and hold him accountable for what she perceives as his failure to abide by the 2009 Agreement.

5. She further agreed with the statement contained in an email between the parties that referred to “our completely dysfunctional and chronically conflicted relationship”.

6. In addition, when it was put to her that the history of the matter indicated that the parties would never be able to come to an agreement about what “reasonable” means, she replied that “someone else” would have to decide the meaning of the word.

7. As counsel for the wife says in his final submissions, it is not unusual for a court to have to decide what the word “reasonable” means and he quotes multiple cases in varying jurisdictions where that has been the issue.

8. However, if the determination of what was meant in the 2009 Agreement by “reasonable education costs” and “reasonable extracurricular expenses” had to be referred to the court every time a dispute arose between these parties about those terms, then based on the history of this matter, we could expect almost continuous applications for that determination in any given year until Y turns 18. Such decisions arise on a month-by-month basis and it is not this court’s function to decide what “reasonable” means with that regularity and/or frequency. The whole point of the Parliament providing parties with the opportunity to sign Binding Child Support Agreements is to keep those matters out of court.

9. Further, the husband argues that if the 2009 Agreement contains provisions which can only be effected by further agreement of the parties, then the 2009 Agreement is void.

10. Again, there is some force in that argument.

11. As Menzies J said in Thorby v Goldberg[4] , approving the statement of Sugarman J in the NSW Supreme Court in the same case:

    It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential or critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties.

    [4] Thorby v Goldberg (1964) 112 CLR 597 at p.607

12. That statement was quoted with approval in the Family Law context by Fogarty J in Weiss v Barker Gosling[5].

    [5] Weiss v Barker Gosling (1993) FLC 92 -399 at 80,080

13. There is no dispute that the clauses which oblige the parties to pay “reasonable educational costs” and “reasonable extracurricular expenses” are “essential or critical” to the 2009 Agreement. Indeed, apart from the clauses about the payment of medical insurance and expenses, they form the core of that Agreement and could be said to embody much of its raison d’etre.

14. In the current case, the determination of what constitutes “reasonable education costs” or “reasonable extracurricular expenses” relied on the agreement of the parties from time to time after the signing of the 2009 Agreement.

15. In other words, an “essential or critical term is expressly left to be settled by future agreement of the parties”.

16. For these reasons I will make a declaration that the 2009 Agreement is void for uncertainty.

17. In these circumstances, the determination of Issues B and D as set out in paragraph 6 of these Reasons is moot.

18. However, the declaration is not the end of the matter.

    C: If the 2009 Agreement should be either declared void or set aside, should there be a Departure Order from the Assessment so that in addition to his Child Support Assessment, Mr Teale pays further sums each year as child support, and if so, how much?

19. Once the 2009 Agreement is declared void, only the husband’s current Child Support Assessment remains in place in terms of his liability to pay for the support of the children and Ms Bassett has no specific obligation to pay for any of their expenses.

20. Mr Teale’s current Child Support Assessment provides for him to pay the maximum amount of child support provided under the CSAA as his income exceeds the threshold beyond which any further assessment may be made.

21. It was clearly the intention of the parties at the time of signing the 2009 Agreement (and indeed at the time of signing the Minute of Consent Orders on 23 July 2012) that Mr Teale would pay more than the assessed rate of periodic child support, and he did not resile from that intention at trial.

22. It is Mr Teale’s case, stated for the first time at trial, that the court should make a departure order which provides for him to pay the rate of assessed child support liability under the CSAA, plus the children’s school fees and medical insurance and expenses as set out in the 2009 Agreement, and then a fixed sum each year which would cover those items which have been the subject of the acrimonious and almost continuous disputes between the parties since 14 May 2009.

23. It is difficult to fault that logic. It would mean that Ms Bassett is paid for the expenses she sees as payable under the current Agreement, without the constant arguments about what “reasonable” expenses and costs are.

24. That cannot help but benefit not only the parties but the children and, it must be said, the resources of the court.

25. However, the practicalities of the situation must bow to the law and the court can only make a departure order under certain circumstances.

The Law

1. Before making an order for departure from an administrative assessment under s.116 of the CSAA, s.117(1) requires the court to be satisfied that a ground for departure exists under s.117(2); that it would be just and equitable as regards the child, the carer parent and the liable parent to make such an order; and that it would be otherwise proper to make the order.

2. Section 117(2) sets out the grounds upon which such an order might be made. Sub-sections (a), (aa) and (b) refer to situations where the capacity of either parent to provide support for the child might be reduced, or the special circumstances of the child might affect the assessment. None of these sub-sections is relevant here.

3. Sub-section (c) states as follows:

   That, in the special circumstances of the case, application in relation to the child of 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 liable parent for the child:

   (i)     because of the income, earning capacity, property and financial resources of the child; or

   (ia)    because of the income, property or financial resources of either parent; or

   (ib)    because of the earning capacity of either parent; or

   (ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

4. I am satisfied that “special circumstances” exist in this case as Mr Teale’s periodic child support paid pursuant to Assessment is the maximum amount payable because of his high income. I also take into account the fact that the parties have agreed until this date that he should pay for a significant portion of the children’s expenses on top of his assessed amount.

5. That is, I find that the provisions of s.117(2)(c)(ia) and (ib) have been satisfied.

6. Because of the parties’ intentions as expressed in the 2009 Agreement and the Notation to the orders of 23 July 2012, I am satisfied that a departure order would be just and equitable as regards the child, the carer parent and the liable parent and also that it would be otherwise proper to make the order.

7. Therefore I find that it is appropriate to make a departure order in this case.

8. The question of the quantum of the non-periodic payments was not addressed in any great detail at trial.

9. The amount set out in the proposed new Binding Child Support Agreement as evidenced in the Notation to the orders of 23 July 2012 is $3,500.00 per annum in addition to school fees and medical expenses. That is, the parties considered that to be an appropriate amount at that stage to be paid in lieu of “reasonable educational costs” and “reasonable extracurricular expenses” for both children.

10. That was four years ago. X is now 16¾ and Y is just 14. Their living expenses are likely to have increased considerably since July 2012 and will only rise as they grow older.

11. In addition, the amount of $5,000.00 more than covers any total sum the husband is said to have owed in any one year under the 2009 Agreement and Mr Teale indicated through his counsel at trial that he is able and prepared to pay that sum.  

12. I will therefore make a departure order for non-periodic child support to be paid by the husband (and for some expenses to be paid by the wife).

13. I will include in that order the school fees and medical insurance and expenses which were part of the 2009 Agreement and will make an order for a lump sum payment from the husband to the wife to make certain the amount to be paid in lieu of the 2009 Agreement’s provisions for “reasonable educational costs” and “reasonable extracurricular activities”.

14. The lump sum to be paid each year will be set at $5,000.00, to be paid in two instalments of $2,500.00 on 1 July and 1 December each year and indexed on 30 June each year according to the Consumer Price Index for that year.

15. The first payment will be made within seven days after the date of delivery of these Reasons and the making of orders and will be deemed to have been paid on 1 July 2016. That is, it will be the sum payable for the first half of the 2016-2017 year.

Conclusion

1. During the final hearing, I asked Ms Bassett whether it might not have been more prudent, especially as she is receiving a considerable sum from Mr Teale in child support[6], to accept that the parties were never going to agree on what expenses and costs were “reasonable”, and to forgo what she saw as her legal rights to enforce the 2009 Agreement.  I asked this question in the context of her evidence that she had spent about $70,000.00 in legal fees since May 2009 when the amount she was seeking to enforce was less than $5,000.00.

   [6] The evidence is that Mr Teale pays about $60,000.00 per year including the children’s school fees.

2. Ms Bassett’s answer was to the effect that she had never considered that option and that as a matter of principle Mr Teale ought not to be allowed to make an agreement and then “walk away from it”.

3. When animus between parties is that significant after eight years of separation and where both parties have repartnered, there is not much a court can do to address what the parties see as the other’s wrongdoing.

4. It is to be hoped that the parties’ recent signing of a Minute of Consent Orders in relation to parenting matters signifies the dawning of a new era of cooperation, which might allow them to leave behind their extreme negative feelings about each other for the sake of their dearly loved but long-suffering children.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 24 August 2016