Christian and Donald

[2009] FamCA 850

FAMILY COURT OF AUSTRALIA

CHRISTIAN & DONALD [2009] FamCA 850

FAMILY LAW – ENFORCEMENT – Orders made by Court that school fees to be paid equally in respect to any arrears (per Coleman J) and whilst there is agreement between the parties as to which children should go to the school in the future (per Faulks J) – Whether the Court should exercise its discretion to enforce the payment of monies by the respondent to the applicant where the applicant states he has paid for the majority of school fees despite the earlier Court orders – Application of the “slip rule.”
HELD – Discretion not exercised in favour of applicant

Family Law Act 1975 (Cth) s 117B(1)
Family Law Rules 2004 (Cth) Rules 17.02(5); 20.07

Bailey & Bailey (1990) FLC 92-145
Noetel, TW & Quealey, PA (2005) FLC 93-230
Ramsey & Ramsey (1983) FLC 91-301 (per Wood and Simpson SJJ, Gibson J)

APPLICANT: Mr Christian

RESPONDENT: Ms Donald

FILE NUMBER: CAC 1752 of 2007

DATE DELIVERED: 3 September 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks  DCJ

HEARING DATE:

30 June 2009

23 July 2009
Written Submissions of the applicant 19 August 2009

REPRESENTATION

THE APPLICANT: Represents himself

SOLICITOR FOR THE RESPONDENT: Mr Eley

Orders

1. All extant applications and the enforcement summons are dismissed.

2. The matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1752 of 2007

MR CHRISTIAN

Applicant

And

MS DONALD

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court, consistently with the history of this matter, are not straight-forward.  There was an issue in relation to the T, the youngest son of the parties, and where he is to live.  This was resolved by consent on 23 July 2009 by an order, in effect discharging all existing orders about him.  There is also a question of what is said to be an enforcement of an order about the payment of school fees.  There was also an issue about the amount of money the father was to pay in child support, but this was also resolved by consent between the parties.  

Enforcement Summons

1. The father filed an Enforcement Summons which in essence is designed under the Family Law Rules 2004 (Cth) to bring a non-paying person before the Court so that the Court and the claimant can determine in what way further orders could be made to ensure that payment is accomplished. The father also filed an Application in a Case (which would have been more appropriately an Application for Final Orders) seeking enforcement by means of an order directed to the respondent that she pay to him money that he says he has paid to the school, together with interest.

school fees

1. These issues need to be broken up into a number of different categories because different principles apply to each category. 

Arrears of school fees

1. The orders pertinent to my consideration of these matters are the orders of his Honour Coleman J on 14 May 2004 and an order made by me on 2 June 2004.  The relevant parts of these orders are set out in Endnote 1Endnote 1 and Endnote 2.Endnote 2

2. It seems clear from Coleman J’s judgment that he believed at the relevant time that the arrears of school fees were in the order of $13,000 or $14,000.  Hence, his order might practically be said to be an order that the mother would pay to the school the sum of $6,500 or $7,000.  It was not part of his Honour’s orders that there should be any payment to the father, nor was the father entitled as appears to have been what happened to make payment to the school and then seek reimbursement from the mother.

3. My subsequent order of 2 June 2004 appears to confirm that the mother had made some arrangement with the school (probably on a concessional basis) to discharge her liability.  Accordingly, if she fulfilled that obligation it would also fulfil the terms of his Honour Coleman J’s order. 

4. Again, nothing in this matter is ever free from controversy.  If I were to accept the evidence of the mother (her Affidavit filed 2 April 2009) she commenced to pay-off her arrears and to pay her share of the then existing school fees at the rate of $100 per week after the order I made in June 2004.  She claims[1] that by 16 December 2005 she had paid off all of the arrears that had been levied against her half of the fees and her payment of fees was up to date.  If that were so, then presumably the school would have been in credit by the half of the school fees that would have been otherwise payable under his Honour Coleman J’s order by the mother which was paid by the father. 

   [1] Affidavit of respondent filed 2 April 2009, para [13].

5. Notwithstanding that the annexures to the father’s affidavit filed on 26 June 2009 suggest that there are amounts due to the school it became clear in his oral submissions to me on 23 July 2009 that the father had originally paid the amount that was alleged to be due from the mother but had subsequently been refunded that amount when the school accepted an arrangement from the mother for payment. 

6. Moreover, the father conceded during oral submissions that in fact the only amounts “due” from the mother (if I were to accept the father’s interpretation of the orders that were made originally by his Honour Coleman J on an interim basis and subsequently finalised by me) would be amounts due in respect of the child L for 2005 and 2006 and the child N for 2007 and 2008.  In each case, these were years which occurred after the mother had met her obligations but had accepted an invitation from the school to “negatively elect” that the relevant young man would not attend the school in the following or subsequent years. 

7. In any event, enforcement of the order of his Honour Coleman J (as modified by my subsequent order) does not and cannot require that the mother pay money to the father.  If the mother has failed to comply with the orders and she is obliged to pay the arrears for the years stipulated, then her obligation is to make that payment to the school. 

8. The father (in his application) sought that interest (at the rate applicable under the Family Law Act 1975 (Cth) and Family Law Rules 2004 (Cth)) should also be payable to him. This is on the basis presumably that payments pursuant to the order in relation to a money matter were still outstanding.[2] 

   [2] Family Law Act1975 (Cth) s 117B(1).

9. As the money is not due to him he is not entitled to any interest in relation to it.  Because the father paid the school (he says promptly) any arrears that were outstanding, from the school’s point of view (presumably), no interest was accruing because if I accept the father’s evidence no debt was owing. 

10. Moreover, if the school accepted an arrangement with the mother (as she implicitly asserts they did) for payment of the arrears and other school fees by instalments then presumably the school is not claiming any interest in relation to outstanding amounts.  The father cannot insert himself into the equation in order to argue that the school should claim interest or to claim it on its behalf or his own behalf. 

11. It appears that the father made the payment to the school as a “volunteer.”  I use this in its technical legal sense in that it does not appear that the mother either asked him to do so or consented to his doing so.  It may be that she did not even get any notice of his doing so.  As a result of the position as finally outlined by the father he has been refunded any amounts paid to the school except those that he says ought to be payable by the mother in accordance with his interpretation of the orders. 

“Agreement” about school fees

1. When I included the word “agree” in my order of 2 June 2004 I possibly did not consider how two parents who fundamentally cannot agree on anything might subsequently misconstrue or misinterpret my order.  I concede that with the benefit of hindsight it might have been more appropriate for me to have made a more prescriptive and precise order.  Nevertheless, an order was made and it is that order which I am now obliged to consider on the question of enforcement.

2. All enforcement orders are within the discretion of the Court.[3]  The Family Law Rules 2004 (Cth) Rule 20.07 provides that the Court may enforce the order.  I might add the Court ordinarily would enforce its orders unless there were good reasons for not doing so.[4]

   [3] Family Law Rules 2004 Rule 20.07: “The Court may make an order…”(emphasis added). 

   [4] See generally Ramsey & Ramsey (1983) FLC 91-301 (per Wood and Simpson SJJ, Gibson J) which emphasised the discretion of a judge in relation to this power.

3. In this case the facts are shortly put as follows.

Relevant facts

1. The father asserts that the parents had originally agreed that the children should attend Christian School.  Accordingly, he asserts, as a result of the order I made on 2 June 2004 the mother is obliged to pay one half of the school fees as long as the children attend that school.  The father may concede that this would necessarily mean that she would pay such part of the school fees as the school would assess as being the appropriate payment from her as one of the separated parents of the relevant students. 

2. Mr Eley, in his oral submissions before me, indicated that the school has a policy of applying their concessional rates to each of the parents depending upon his or her circumstances when those parents are separated.  I do not accept that as evidence as such but it illustrates that there may be different criteria applicable rather than a simple mathematical division of the scheduled school fees.  The father in his evidence before me submitted that it was appropriate that the school as a private school should not be obliged to accept concessional fees from either parent.  In the end, his view about this matter is not relevant to the proceedings before me.  If he wishes to pay more school fees then he would otherwise be obliged to pay because of the school’s policy about concessions for parents of low income or who have multiple children at the school, that is a matter for him.  He cannot enforce his views on the mother without agreement. 

3. However, that is not the end of the matter.  The mother says in her affidavit that in about June or July 2004 the school sent out forms asking for elections as to whether the child L would continue at the school for years 11 and 12.[5]  She says that she filled in and signed the form confirming she did not want him to attend the school for years 11 and 12.[6]  She says that she also sent a “negative election” in relation to the continuing attendance of N at the School for years 11 and 12.[7]   

   [5] Affidavit of the respondent filed 2 April 2009, para [14].

   [6] Ibid, para [15].

   [7] Ibid, para [19].

4. The mother says she still receives invoices for half of T’s school fees and she continues to pay them.  In essence, her submission in relation to this matter is that the word “agree” as it appeared in my order should not be taken as being a once-only election but rather a commitment for payment only while the parents continue to agree that the child/ren should attend the school.  On that basis, she would say her obligation to pay for L and N ceased when she made her negative election – or at least ceased at the expiration of the year in which she made that election prior to the commencement for the New Year.

5. As I said above, I do not believe that I had considered at the relevant time the fact that the parents would not be able to reach agreement about what “agreement” meant.  However, there are a number of factors which would make the interpretation that the mother has put upon those words more appropriate.  It cannot be the case that parents would be obligated to send a child to a school from which the child had been expelled or which the child did not want to attend or in circumstances where because of a drastic change in circumstances a parent could not continue to contribute school fees or pay for associated activities. 

6. I also note that the Macquarie Dictionary (3^rd Edition) defines the word “agree” in the following terms:

   (a)   to yield assent; consent;

   (b)  to be of one mind; harmonise in opinion or feeling;

   (c)  to live in concord or without contention; harmonise in action;

   (d)  to come to one opinion or mind; come to an arrangement or understanding; arrive at settlement;

   (e)  to be consistent; harmonise;

   (f)   …

   (g)  …

   (h)  …

   (i)    to concede; grant

   (j)    to determine; settle

   (k)  to accept;

   (l)    “agree with” to be accommodated or adapted to; suit.

7. Accordingly, in my view, the appropriate interpretation of the order is in fact as if the words were to read “continue to agree.”  Those words might for practical purposes be further qualified to take account of the fact that a parent could not make a mental reservation about agreeing and it would also be appropriate that any determination to cease to pay should be capable of being tested in a Court if necessary before the beginning of the next school year.  However, those are not issues that are directly before me as the circumstances surrounding them have now changed. 

8. If I were to be incorrect in relation to my interpretation of the orders made by his Honour Coleman J in his interim orders and myself as final orders for the purposes of enforcement, then, in any event, in my opinion, it would be inappropriate in the exercise of the Court’s discretion (to which I have referred above) for enforcement to occur in relation to arrears of fees after the respondent had made the negative election referred to above.  My reasons for exercising my discretion in that way are summarised in my views set out above about why the proper interpretation would be “continue to agree.”

9. I note also, but am unpersuaded by, the argument raised by the father (in his written submissions of 19 August 2009) in relation to his suggested application of Rule 17.02(5) of the Family Law Rules 2004 (Cth) (“the slip rule”) to the present matter; that is that I can correct what he alleges is “infelicitous” expression on my part and interpret my order in a way that will not defeat the intent and wording of Coleman J’s orders.

10. In Bailey & Bailey,[8] in discussing the application of the “slip rule”, his Honour Mullane J held that a superior court has the power to amend an order to give effect to the meaning of a judgment and the intention of the Court, but that power does not extend to supplementing an order made by a further order on a point which was not argued, considered or decided at a hearing.  Putting it simply, the “slip rule” is designed to be used in a situation where it is obvious to the judge and those who were in Court (having a kind of “Of course!” epiphany) that a particular expression used in an order is incorrect as it defeats the purpose of the judgment. 

    [8] Bailey & Bailey (1990) FLC ¶92-145, 78,007.

11. Further, in Noetel, TW & Quealey, PA,[9] in the circumstances of that case, the Full Court (in the judgment of Bryant CJ and Boland JJ, for which Finn J agreed), took into account:  

    “…the principle that for the purposes of the operation of the slip rule, an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist.”

    [9] Noetel, TWO & Quealey, PA (2005) FLC ¶93-230, 79,792.

12. In this case, it is blatantly obvious, in a situation where there is no consent between the parties, that there is no “of course” epiphany enabling the use of the “slip rule.”

13. Further, as I have already outlined, the father conceded that the orders made by Coleman J were made on an interim basis.  The orders made by me were final orders.  I am, therefore, to give effect to the intention of the Court in my orders of 2 June 2004.  I have outlined above what my intention must have been and what I consider to be the correct interpretation of those orders to give effect to that intention.

14. In summary, in my opinion, as a matter of right there is no basis upon which enforcement can be made against the mother in respect of the years after she has made a negative election.   

15. If I am wrong in so determining then, in my opinion, it is appropriate in the exercise of its discretion for the Court to decline to enforce the orders for the reasons that I have set out above. 

16. Again, in any event if there is any money due to the school in respect of the interpretation I have set out above then it is money due to the school and not to the father.  If the mother is obliged to pay money to the school then it is a matter between the father and the school about how he either obtains a refund from the school or has it credited against any future commitments. 

CONCLUSION

1. It is not for this Court to make a determination about matters between the school and the father.  Accordingly, his application and enforcement summons are dismissed. 

2. The matter is removed from the pending cases list.

I certify that the preceding thirty-five [35] paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date: 3 September 2009

Endnote 1 Orders of Coleman J (14.05.09)

1.    That no child support arrears payable by either party to the other in respect of the child [O], who was born on […] March 1986 be recoverable or enforceable by or against either party.

2.    That, by consent, the assessment of child support on 17 February 2004 with respect to the child [T], who was born on […] July 1995, be varied to nil by departure as and from the date to which the current assessment stands paid.

3.    That all current child assessments issued on 17 February 2004 with respect to the child [L], who was born on […] May 1988, and [N], who was born on […] October 1990, be departed from for the period 1 July 2003 to 7 November 2004 by substituting a child support income of $36,000 for the husband, and a child support income of $27,948 for the wife in lieu of the income figures upon which such assessments were based.

4.    That the Child Support Registrar issue amended Notices of Assessment to reflect Order 3 hereof.

5.    That the parties each pay one half of arrears of school fees payable to […] Christian School.

6.    That the parties each pay one half of school fees for the children [L, N and T] at […] Christian School, Pending Further Order of the Family Court.

7.    That costs be reserved.

8.     

Endnote 2 Orders of Faulks J (as he then was) (2 June 2004).

1.    By Consent I make orders in accordance with the Terms of Settlement which I initial, date with today’s date, and place on the Court File.

In addition to the aforementioned orders,
IT IS ORDERED THAT:

2.    That each of the parents will be responsible for such amount as the […] Christian School shall determine is that parent’s share both of arrears and future requirements for the school fees of such of the children that the parents agree should attend that school.

3.    By Consent, the parties will each pay for the attendance of [L] upon Dr [H] in relation to his orthodontic requirements.  If Dr [H] recommends that for functional reasons it is necessary for [L] to undertake treatment, then the parents will accept that recommendation and each will pay one half of the cost of such treatment or make appropriate arrangements in relation thereto.

4.    If Dr [H] believes that it is important for aesthetic reasons that [L] should have orthodontic treatment, the parents will consider and agree about whether such treatment should be undertaken.  If they are unable to agree but one parent seeks that such treatment be nevertheless undertaken that parent will be responsible for the payment for such treatment.

5.    (a)    About the division of clothing, school clothing, toys, personal effects and other personality relating to [T] ([the father] will make a proposal to [the mother]).

(b)    I have indicated that I am prepared to offer a level of mediation about this matter but on the basis that any request in relation thereto is made on or before 4.00pm on the 16 June 2004.

6.    Otherwise the matter is referred to a Deputy Registrar for the next step in the resolution of the remaining matters outstanding between the parties.

7.    Each of the parties is obliged to advise the children and in particular [N] and [T] that the children are obliged to comply with the orders made this day by the court.  In addition each of the parents will cooperate in ensuring that both boys attend, as soon as possible, upon Ms [W] for her to discuss the orders with the boys and to give them advice about the necessity for them also to comply with the orders as well as their parents and to discuss their obligations both under the orders and to their parents.

IT IS NOTED THAT:

8.    This will mean that [the father] will receive either a credit for past amounts paid by him or a refund of some of those sums because of arrangements that [the mother] has made with the school about the amount that the school claims from her.