BERNARD & DALTON

[2017] FamCA 889

FAMILY COURT OF AUSTRALIA

BERNARD & DALTON [2017] FamCA 889

FAMILY LAW – CHILD MAINTENANCE – ENFORCEMENT – Where the mother seeks to recover arrears of child maintenance arising from consent orders between her and the father – Where the consent orders specified that the child maintenance was contingent upon certain conditions being satisfied – Where the mother failed to establish that those conditions had been met – Application dismissed.

FAMILY LAW – COSTS – Where the mother was wholly unsuccessful but no other factor in s 117(2A) justifies the making of a costs order against her – Application dismissed.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Bernard

RESPONDENT: Mr Dalton

FILE NUMBER: SYC 275 of 2007

DATE DELIVERED: 8 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT: Northfield Lawyers

Orders

IT IS ORDERED

1. That the Amended Application in a Case filed by the mother on 3 October 2017 is dismissed.

2. That there be no order as to costs.

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 Bernard & Dalton 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: SYC 275 of 2007

Ms Bernard

Applicant

And

Mr Dalton

Respondent

REASONS FOR JUDGMENT

1. Ms Bernard (“the mother”) and Mr Dalton (“the father”) are the parents of B (“the child”) who was born in 2000 and is now 17 years old.

2. The child lives with the mother in Sydney. The father lives in the United States of America.

3. The proceedings before the Court arise from Consent Orders made on 7 March 2017 which provide, relevantly, as follows:

   9.That in addition to the amount paid pursuant to the Assessment the father shall pay or cause to be paid the sum of $3,000.00 per calendar month in accordance with Order 11 towards payment of the costs referred to in Order 10.

   10.The costs to which Order 9 applies relate to the following services provided to the child:

   10.1 Any medical, dental, hospital and health service for which the child has received treatment on and from the date of these Orders and evidenced by an original invoice and/or statement from a qualified health provider with a medicare provider number.

   10.2 Private tutoring lessons undertaken and completed for any subject for which the child has enrolled from the date of these Orders for the completion of his higher school certificate or its equivalent from tutors and evidenced by an original invoice and/or statement and written agreement between the tutor and the child.

   11That for the purpose of Order 9, the father shall request the child to open a bank account with an Australian Financial Institution in the name of B (“the child’s account”) and within 21 days of the date of these Orders shall deposit a sum of $3,000.00 and thereafter a sum of $3,000.00 per calendar month on or before the 7^th day of the calendar month until a terminating event as defined in section 12 of the Child Support (Assessment) Act 1989 except subsection 12(3)(b).

   12That the payment pursuant to these Orders is conditional upon the provision of invoices and statements to the father to a minimum of $3,000.00 per month averaged over a 3 month period for the costs referred to in Order 10, such documents to be provided on a monthly basis.

4. By an Amended Application in a Case filed 3 October 2017, the mother sought orders for payment of the sum of $15,742 by way of arrears pursuant to Order 9 of the Orders made 7 March 2017; for reimbursement of application fees and interest in relation to a loan taken out by her to provide for education expenses; and for interest calculated in accordance with the Family Law Rules. She sought two further orders which, in essence, sought orders that the father comply with existing orders and a final order in relation to the issue of an Australian passport for the child.

5. It can be seen from reading Order 10 that there are a number of prerequisites contained within its terms. Those are:

   ·    For the purposes of Order 10.1, any “treatment” must have been provided after 7 March 2017;

   ·    For the purposes of Order 10.2, the subject in relation to which tutoring is provided must be a subject in which the child is enrolled from 7 March 2017 “for the completion of his higher school certificate or its equivalent from tutors”;

   ·    The invoice and/or statement must be provided;

   ·    A written agreement between the tutor and the child must be provided.

6. The mother bears the onus of proving that those prerequisites have been met.

7. The father opposed the application. On behalf of the father it was submitted that:

   ·    There was no evidence that the child was engaged in a course of study for the completion of his higher school certificate or its equivalent.

   ·    There was no evidence that the services had been provided after the Orders were made.

   ·    That there was no written agreement in evidence.

8. The mother’s enforcement claims fall into two categories: payments for treatment and payments for tutoring.

PAYMENTS FOR TREATMENT

1. The claims pursuant to this category were evidenced by three documents from “M Orthodontics” and Dr S dated 29 August 2017. The first document is a receipt for a payment of $540 on 29 August 2017. The second document is an invoice which notes a “Miscellaneous charge” of $50 debited on 5 May 2017, and “Item 881” credited on 29 August 2017 for $540 and on 2 November 2017 for $450. The last document is a receipt for a payment of $540 which appears to be a duplicate of information in the second document.

2. None of the documents upon which the mother relied specifically evidence treatment received by the child after 7 March 2017.

PAYMENTS FOR TUTORING

1. The mother relied on documents produced by an organisation called “C Tutoring” which provided documents evidencing that the child is enrolled with that organisation. However, those documents do not provide evidence that the child is enrolled in the Higher School Certificate or its equivalent. Rather, they suggest that the child is enrolled in a course of study for an “ACE Year 12 certificate”.

2. The father made enquiries of the NSW Education Standards Authority who, by letter dated 7 November 2017, indicated that the child’s application for home schooling expired on 7 September 2017 and that no application had been received to extend. The last application for assessment of the home schooling had been received on 30 October 2015. Further they advised:

   [The child] is not currently registered for home schooling. Please note that children who are registered for home schooling are not eligible for the Higher School Certificate. It is possible for children who have been home schooled in the early years to seek enrolment in a HSC pathway (years 11 and 12) at a school.

3. I am not satisfied that the mother has demonstrated that the child is enrolled in studies leading to the Higher School Certificate or its equivalent.

4. That being the case, it is not strictly necessary to consider the 17 invoices upon which the mother relies. However, I comment that:

   ·    Two invoices are for the rental of a harp which is not an expense covered by the Orders;

   ·    Four invoices from D Pty Ltd give no indication of the nature of the service provided, the dates upon which the services were provided and no written agreement between the tutor (if that is an accurate description of the service provider) and the child is provided;

   ·    Three invoices from Mr E do not indicate when the services were provided and no written agreement between the tutor and the child is provided;

   ·    Three invoices from Mr F do not indicate when the services were provided and no written agreement between the tutor and the child is provided;

   ·    Two invoices from Mr G do not indicate when the services were provided and no written agreement between the tutor and the child is provided;

   ·    Two invoices from the T Group both dated 2 November 2017 appear to contain some duplication and do not indicate when the services were provided and no written agreement between the tutor and the child is provided;

   ·    An invoice from Ms H for “diving instruction” does not indicate when the services were provided and no written agreement between the tutor and the child is provided.

5. I reject the submission, advanced by the legal representative for the mother, that the father was obliged to pay the sum of $3,000 each month, regardless of whether the child was enrolled in an appropriate course of study and whether the mother provided relevant invoices.

OTHER APPLICATIONS

1. The Orders made on 7 March 2017 impose no obligation on the father to reimburse the mother for money she has borrowed.

2. There is no judgment debt on which interest can be accrued.

3. There is no evidence in support of the application in relation to the issue of a passport.

4. Accordingly, those applications will be dismissed.

COSTS

1. Each party made an application for costs. There was no information before the Court as to the financial position of either of them.

2. Although the mother has been wholly unsuccessful, I do not consider that the application of the other relevant factors set out in s 117(2A) of the Family Law Act 1975 (Cth) justifies making a costs order in favour of the father.

3. Each party will pay their own costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 November 2017.

Associate:

Date:  8/11/2017