Boyd and Boyd - [2012] FMCAfam 439

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOYD & BOYD

[2012] FMCAfam 439

CHILD SUPPORT – Enforcement proceedings – binding financial agreement – issues raised regarding enforceability – separation declaration – financial agreement provides for the payment of school fees – whether provision void because of failure to quantify amount of maintenance to be provided –application by carer to collect arrears of child support – matters to be considered – whether appropriate to entertain application to change children’s place of schooling in enforcement proceedings.

Family Law Act 1975, ss.60B; 60CA; 60CC; 66R; 84(5); 90B; 90C; 90D; 90DA; 90DB; 90E; 90G; 90K; 90KA; 117
Child Support (Registration & Collection) Act 1988, ss.30; 105; 111F; 113; 113A; 116(2); 117
Federal Magistrates Court Rules, Rule 21.10; 21.15; 21.22 and 25B.2

Black & Black (2008) FLC 93-171
Re G: Children’s Schooling (2000) FLC 93-025
AMF v AIF (1999) FLC 92-852
Eden & Eden-Proust [2011] FamCAFC 138
Re: AM (Adult Child Maintenance) (2006) FLC 93-262
Bendeich & Bendeich (1993) FLC 92-355

Applicant:

MS BOYD

Respondent:

MR BOYD

File Number:

ADC 4142 of 2010

Judgment of:

Brown FM

Hearing date:

25 January 2012

Date of Last Submission:

25 January 2012

Delivered at:

Adelaide

Delivered on:

17 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Fittock Barristers & Solicitors

Counsel for the Respondent:

Mr Childs

Solicitors for the Respondent:

Morgan Ward

ORDERS

It is declared that clause 20 of the financial agreement between the parties made on 27 May 2010 regarding the payment of P School fees by the respondent husband is binding and enforceable between the parties.
It is ordered pursuant to the provisions of section 90KA(c) of the Family Law Act 1975 that the aforementioned provision of the financial agreement is to be enforced as if it was an order of the court on the application of the wife made on 20 September 2011.

IT IS FURTHER ORDERED:

The respondent husband pay to the applicant wife the following sums within twenty-eight (28) days of the date of these orders:
(a)The sum of $9,980.25 in respect of P School fees for 2010;
(b)Interest on the aforesaid sum calculated at $1,422.18;
(c)The sum of $18,266.00 in respect of P School fees for 2012;
(d)Costs in the sum of $5,290.00.
Being a total sum owing by the respondent to the applicant wife of $34,958.43
It is further declared that the respondent husband owes the Commonwealth of Australia the sum of $16,091.24 being his registered maintenance liability in respect of child support owing by him as at 9 December 2011 and pursuant to section 113(A)(1) of the Child Support (Registration & Collection) Act 1988 the applicant wife is entitled to sue and recover the aforesaid sum from the respondent husband.
It is therefore ordered that the husband pay to the wife the further sum of $16,091.24 within twenty-eight (28) days of today’s date.
Pending payment by the husband of the total amount owing by him being $51,049.67 the respondent husband is hereby restrained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boyd and Boyd

Details

AGLC: Boyd and Boyd [2012] FMCAfam 439
Case: [2012] FMCAfam 439
Decision Date: 17 May 2012

CaseChat Overview and Summary

The case of Boyd and Boyd involved a dispute regarding the enforcement of a financial agreement between the parties. The court was tasked with determining the enforceability of a clause within the financial agreement that pertained to the payment of school fees by the husband to the wife. The husband, who was also the respondent in the case, had made an agreement with the wife, who was the applicant, concerning the division of their property and financial resources in the event of their marriage breakdown. The husband was required to pay school fees for their child, and the wife sought enforcement of the financial agreement's clause related to these payments.

The primary legal issue the court had to resolve was whether the clause in the financial agreement, which was made prior to the commencement of the Family Law Act 1975 (Cth) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), was binding and enforceable. The court also needed to decide if the husband's obligation to pay child support to the Commonwealth of Australia could be enforced by the wife. Given that the husband had expressly abandoned any claim that the financial agreement was vitiated due to non-compliance with certain formalities, the court focused on whether the agreement could still be enforced under the provisions of section 90G(1A) of the Family Law Act 1975 (Cth).

The court reasoned that the financial agreement, despite not fully complying with all formalities, could still be binding if it would be unjust and inequitable to hold it not binding. The court found that the husband had failed to provide the wife with adequate information regarding the financial agreement, which would have allowed her to make an informed decision. Despite this, the court determined that enforcing the agreement would not be unjust or inequitable. The court also found that the wife was entitled to recover the husband's child support liability under the Child Support (Registration & Collection) Act 1988 (Cth). The court ultimately declared the financial agreement's clause regarding the payment of school fees to be binding and enforceable. Additionally, the court ordered the husband to pay the wife the specified sums within a stipulated period and restrained him from dealing with his interest in a specified property without the wife's consent until the debts were paid.

Orders

Orders of the court

It is declared that clause 20 of the financial agreement between the parties made on 27 May 2010 regarding the payment of P School fees by the respondent husband is binding and enforceable between the parties.

It is ordered pursuant to the provisions of section 90KA(c) of the Family Law Act 1975 that the aforementioned provision of the financial agreement is to be enforced as if it was an order of the court on the application of the wife made on 20 September 2011.

IT IS FURTHER ORDERED:

The respondent husband pay to the applicant wife the following sums within twenty-eight (28) days of the date of these orders:

(a) The sum of $9,980.25 in respect of P School fees for 2010;

(b) Interest on the aforesaid sum calculated at $1,422.18;

(d) Costs in the sum of $5,290.00.

Being a total sum owing by the respondent to the applicant wife of $34,958.43

It is further declared that the respondent husband owes the Commonwealth of Australia the sum of $16,091.24 being his registered maintenance liability in respect of child support owing by him as at 9 December 2011 and pursuant to section 113(A)(1) of the Child Support (Registration & Collection) Act 1988 the applicant wife is entitled to sue and recover the aforesaid sum from the respondent husband.

It is therefore ordered that the husband pay to the wife the further sum of $16,091.24 within twenty-eight (28) days of today’s date.

Pending payment by the husband of the total amount owing by him being $51,049.67 the respondent husband is hereby restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Property 1, in the State of South Australia and being the whole of the land described in Certificate of Title Volume 5776 Folio 264 (hereinafter referred to as the (“real property”) without the prior written consent of the applicant wife.

The respondent husband’s interest in the real property be charged in favour of the applicant wife for the total debt owed by him (and the applicant be at liberty to lodge a caveat over the real property to secure the interest created by this charge).

Enforcement orders

In the event the respondent husband fails to comply with orders (3) and (5) hereof or deals with the real property in breach of these orders the following orders shall take effect:

(a) The total debt shall be immediately due and payable.

(b) The Official Receiver, the Sheriff of the Federal Magistrates Court, and their servants and agents shall be appointed as Enforcement Officers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 90DA deals with separation declarations. It reads as follows:“(1)A financial agreement that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties: (a) at the time when the agreement is made; or (b)at a later time and before the termination of the marriage by divorce; are to be dealt with, is of no force or effect until a separation declaration is made. Note:Before the separation declaration is made, the financial agreement will be of force and effect in relation to the other matters it deals with (except for any matters covered by section 90DB). (1A) Subsection (1) ceases to apply if: (a) the spouse parties divorce; or (b) either or both of them die. Note:This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the divorce or death(s). (2)A separation declaration is a written declaration that complies with subsections (3) and (4), and may be included in the financial agreement to which it relates. (3)The declaration must be signed by at least one of the spouse parties to the financial agreement. (4) The declaration must state that: (a)the spouse parties have separated and are living separately and apart at the declaration time; and (b)in the opinion of the spouse parties making the declaration, there is no reasonable likelihood of cohabitation being resumed. (5) In this section: "declaration time" means the time when the declaration was signed by a spouse party to the financial agreement. "separated" has the same meaning as in section 48 (as affected by section 49).” Section 90G(1) sets out the prerequisites of a binding financial agreement. In summary, it is necessary for the parties to adhere to the following formalities:·the agreement is in writing;·each of the spouses to the agreement has been provided with independent legal advice about the effects of the agreement on the rights of the party concerned and about the advantages and disadvantages arising from making the agreement;·the legal practitioner providing this advice gives a signed statement to this effect;·this statement is annexed to the financial agreement concerned;·the agreement in question has been neither terminated nor set aside by a court. Section 90G(1A) modifies this section by allowing for the enforceability of a financial agreement notwithstanding a failure to comply with all of the formalities set out in section 90G(1). The court may nonetheless declare a financial agreement to be binding if it is satisfied that it would be unjust and inequitable if the agreement was held not to be binding. It is also open to the court to make such orders for the “enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.”[6] It is important to note that, in the context of the proceedings, Mr Boyd has expressly abandoned any claim that the relevant binding financial agreement is vitiated as a result of any non-compliance with section 90G.