Emmett and Emmett (No 4)

[2010] FamCA 1180

FAMILY COURT OF AUSTRALIA

EMMETT & EMMETT (NO. 4) [2010] FamCA 1180

FAMILY LAW – ENFORCEMENT – Interpretation of an order in relation to school fees
FAMILY LAW – COSTS 

Family Law Act 1975 (Cth)

APPLICANT: Ms Emmett

RESPONDENT: Mr Emmett

FILE NUMBER: TVC 710 of 2010

DATE DELIVERED: 22 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Wilson Ryan & Grose

Orders

Order made 17.11.2010

1. The Application in a Case of the wife dated 7 July 2010 be dismissed.

Order re costs

1. The wife pay to the husband costs by making 100 weekly payments of $10 each week ($1,000 in total), first payment commencing 14 days from the date of this order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: TVC 710 of 2010

MS EMMETT

Applicant

And

MR EMMETT

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties have been involved in a particularly prolonged course of litigation, since the parties separated in 2000 and signed consent orders in 2001. The substantive hearings in relation to property orders between these parties was heard during 2009 and delivered on 21 January 2010. Costs were then awarded on 17 June 2010 in the husband’s favour.

2. Under my orders of 21 January 2010, the husband is to pay child support of $1,230 per month until 25 November 2010 and $1,000 per month thereafter. He was also ordered to make non-periodic payments in relation to the children’s private schooling, which were more than $5,000 per year for each child.

3. Order 3 of my orders of 21 January 2010 deals with the husband paying his sons’ invoiced school fees and incidentals. The wife seeks enforcement of that order, claiming that the husband has refused to pay a number of amounts which the wife asserts the husband is required to pay under the terms of order 3. To avoid future doubt, the wife also seeks an amendment to order 3 to reflect this interpretation, if the interpretation is consistent with her own.

4. The wife also seeks an order for the husband to be responsible for educational book expenses for the child A, and for school fees backdated to 2008.

5. On 17 November 2010 I made an order dismissing the application made by the wife and reserved my reasons.  I now provide those reasons. 

6. The husband made an application for costs incurred in circumstances where he had successfully opposed the wife’s application.

APPLICATIONS

1. The wife sought orders in the following terms, in accordance with her Application in a Case filed 7 July 2010:

   1.    I seek that [the father] be ordered to pay the amount of $845.96 as a direct credit to my Bank of Queensland account immediately.

   2.    I seek that the wording of Paragraph 3 of the Order of Justice Watts dated 21^st January 2010 be changed to incorporate any incidentals required by the [G Private School].

   3.    I seek that an order be made that the school book list is forwarded direct to [the father] and arranged for collection by [the father] by the first week of January each year.

   4.    I seek that Paragraph 3 of the Order of Justice Watts dated the 21^st January 2010 regarding the payment of incidentals requested by the [G Private School] be backdated to 2008 instead of only backdated to 2009. The reason for this order is that I have receipts for approximately $1200.00 from incidentals purchased in the 2008 year.

2. In his response of 18 August 2010, the husband sought:

   1.    That the application in a case filed on 7 July 2010 be dismissed.

   2.    That the applicant wife pay the respondent husband’s costs of and incidental to this application.

DOCUMENTS RELIED UPON

1. Wife’s Application in a Case filed 7 July 2010;

2. Husband’s Response filed 18 August 2010;

3. Wife’s Affidavit filed 7 July 2010;

4. Husband’s Affidavit filed 18 August 2010; and

5. Reasons and Orders of 21 January 2010 and 17 June 2010.

DISCUSSION

Orders 1 and 3 sought by the wife

1. I deal first with the interpretation of order 3 of my orders of 21 January 2010 which states “The husband pay school fees for [R] and [A] at [G Private School] or at any other secondary school each attends, including any incidental charges contained on invoices received from the school from time to time from 1 January 2009 until each completes his secondary school education…”

2. The mother contends that the correct interpretation of the order is that the husband pay the boys’ invoiced school fees and that he also pay any invoice of incidental costs issued by the school or with the school’s imprimatur.

3. The husband contends that the correct interpretation of the order is that the husband pay the boys’ invoiced school fees and that he also pay incidental costs that are included on the school fees invoice, but not those invoices that arise separately.

4. The husband considers that costs which arise separately to invoiced school fees should be paid out of the child support he provides to the wife for the care of the boys. The wife says that child support is for the day-to-day care of the boys, including lodging, food and clothing.

5. For reasons I detail now, the husband’s interpretation is correct.

6. In Order 20 of the wife’s Amended Application relied on by her in the substantive hearing, the wife differentiates at 1(d)(i) and (ii) between ‘school fees’ and ‘other education costs’ (see paragraph 20 of my Reasons dated 21 January 2010). She states that ‘school fees’ includes fees, enrolment deposits, administration fees, tuition fees, parent association levies, school levies, and costs of non-optional extra-curricular activities including camps, excursions and other trips.

7. In contrast, ‘other education costs’ were listed in an extensive list, including uniform, shoes, bags, textbooks, stationary, music tuition in the following terms:

   (ii)“other education costs” means all other costs of the children’s education including:

   (A)school and sports uniforms;

   (B)school and sports shoes;

   (C)school bag;

   (D)requisite text books and stationery ;

   (E)music instruments and tuition fees;

   (F)fees payable for the children’s school sporting activities once they commence attending school, whether optional or non optional sport;

   (G)all other optional extra curricular activities currently undertaken by the children or agreed between the husband and the wife;

   (H)application fees for extra curricular exams including but not limited to:

   (i)    registration for [J] to sit for the under graduate medical admission test (UMAT) – cost $150.00;

   (ii)   the MedEntry program (a two-day workshop in Brisbane, beginning 12 June 2007);

   (iii)     Trinity College London speech and drama exams for [J] in October 2007;

   (I)the accommodation or other incidental costs of sitting the exams in (H);

   (J)all costs incidental to the sitting of the exams referred to in (H) above;

   (K)transport to and from those exams;

   (L)accommodation while sitting those exams in the event that those exams are not held in Townsville;

   (M)costs for equipment necessary for study including computers and computer equipment.

8. In the substantive hearing, the husband opposed an order that he pay either “school fees” or “other educational costs”, but in final submissions made a concession that he would pay the “school fees and incidental charges contained on invoices from the school from time to time” (see paragraphs 24 and 400 of my Reasons dated 21 January 2010). In accordance with the definitions in the wife’s own application, this included such things as levies, but not things such as school uniforms. The husband did not consent to paying the wife’s list of ‘other education costs’ and I did not order him to do so.

9. I discussed the husband’s capacity to pay child support as well as other non-periodic payments at paragraphs 395 to 421 of my reasons. I refer specifically to paragraph 419 which states:

   “[the wife] wishes the husband to pay all school fees and all other education costs and private health insurance premiums.  I have already discussed the terms to which the husband consents to an order.  It follows from the discussion above that after the husband has fulfilled his responsibilities for paying school fees as he has agreed to and made the periodic payment for child support that I will order the husband has no further capacity to make more extensive payments as sought by the wife and having regard to s 124(2)(b) Child Support (Assessment) Act 1989 (Cth) in particular I conclude that it would not be just and equitable to require the husband to make any further payment.” [emphasis added]

10. My reference to the “more extensive payments as sought by the wife” is clearly a reference to the “other education costs” sought in the wife’s application. If my orders were to include school fees, other fees attached to invoiced school fees, and any other invoices issued by the school, then my reference to “extensive payments” sought by the wife which the husband could not afford, would be limited to private health insurance and extra-curricular exams. I would not characterise these costs as ‘extensive’ given the length of the full list sought by the wife.

11. I made order 3 on the basis of the husband’s concession that he would pay ‘school fees’ only and on the basis that he did not have the capacity to pay anything more than the child support and the identified ‘school fees’. The correct interpretation then, is that the husband pay the boys’ invoiced school fees and any incidental costs issued by the school on that same invoice.

12. The list of items the mother seeks as payable under order 1 sought in her Application in a Case filed 7 July 2010, includes textbooks, stationery, school photos, fees for lost books, uniforms, a formal ticket, and a school excursion. The only two items that could arguably come within the mother’s list of ‘school fees’ in order 1(d)(i) of the mother’s Amended Application are R’s school formal and the school excursion as ‘non-optional extra-curricular activities’. The mother has not made out a case that the formal was a non-optional extra. I have no evidence about R’s obligation to attend. The school-excursion might come into the category of a non-optional extra (although I have no evidence of that); however as it is not an incidental fee attached to the invoice for school fees, it is not covered by order 3 of my orders of 21 January 2010.

13. Order 1 of the wife’s Application in a Case for enforcement is without merit and is therefore dismissed.

14. Proposed order 3 of the wife’s Application in a Case hinges on the same interpretation of order 3 of my orders of 21 January 2010. As outlined above, this order does not include the payment of school books. Order 3 sought is therefore not able to be made and is consequently dismissed. A rehearing of the wife’s proposal that the husband pay for school books would be dealt with the same way as order 2 below.

Order 2 sought by the wife

1. Order 2 sought by the wife seeks to relitigate an issue which has already been determined at the substantive hearing (order 3 of my orders of 21 January 2010).

2. The wife has not convinced me that there has been a change of circumstance that would be sufficient to justify me entertaining a new application to change the order made. The husband points to my reasons of 17 June 2010 where I considered the wife’s employment and her earning capacity. In my reasons at paragraphs 27, 31 and 32, I note that the wife claimed then that she had not been on the roster since December 2009, and that she was unsuccessful in gaining another position. I noted that the wife gave no objective evidence of this and referred to my findings from the judgment of January 2010 that the wife had the capacity to maintain regular employment. The husband claimed at that time that the wife was deliberately avoiding work so as to maximise her welfare benefits. Whatever the reason for the wife’s lack of employment, I maintain my findings that the wife has shown she is able to earn regular income. Her continued absence from the workplace is not a significant change of circumstances justifying my rehearing of the application. The wife has not demonstrated that the husband now has an increased capacity to make payments at a level higher than his current court ordered obligations.

Order 4 sought by the wife

1. The wife seeks that the husband’s payment of incidentals be backdated to 2008. There are two reasons not to do this. The first is the wife’s lack of entitlement to be paid all expenses relating to the boys’ education. The second is that the issue of retrospective payments was already dealt with in my primary judgment. In my judgment of January 2010 at paragraph 420, I discussed the payments made by the husband to the wife in terms of child support and non-periodic payment of school fees at the time of the hearing. Disputes in relation to such payments at that time were dealt with by the Child Support Agency (CSA) to whom the husband unsuccessfully appealed. The husband had arrears of child support at that time, which were to be repaid; I have not heard that he did not do so and I infer the wife would have mentioned it if these arrears had not been paid by the husband.

HUSBAND’S APPLICATION FOR COSTS

1. Section 117(1) FLA provides that each party to shall bear his or her own costs.  Section 117(2) FLA provides that if the court is of the opinion there are circumstances that justify it in doing so, the court may make such order as to costs as the court considers just. In considering what cost order (if any) should be made, the court is to have regard to the matters set out in s 117(2A) FLA. 

2. The husband seeks costs for the current Application in a Case.

3. The wife resists an order for costs on the basis that she has no capacity to pay any further costs. She claims that she receives ‘nothing’ for two of the children and they ‘come home here to me’. I note that one of the children she receives ‘nothing’ for usually lives in Brisbane and not in Townsville with the wife (J), and the other receives youth allowance and has the ability to work part-time (R).

4. The wife has been wholly unsuccessful in her application. I refer to my costs orders of 17 June 2010 in regard to the parties’ financial circumstances and note that very little has changed. The husband remains in a better financial position than the wife, an updated financial statement showing his income has increased somewhat. He still has a large debt owing for legal fees and pays rent, child support, school fees and other expenses which outweigh his income. The wife still says she is not working and cannot find another job, but I only have the wife’s untested claim about that. The husband maintains that she is deliberately avoiding work to maximise welfare benefits, and I have noted in paragraph 54 of my costs judgment of 17 June 2010 that this has occurred in the past. Neither party is in receipt of Legal Aid.

5. There is no issue regarding compliance or offers for settlement. In relation to conduct, I note that the current case primarily turns on the interpretation of my order 3 of January 2010, and the wife was advised twice in correspondence from the husband’s lawyers what the correct interpretation of that order was. Bringing an application to court that has already been heard does also not reflect well on the wife.

6. I note too that the wife seeks payment for invoices that do not accord with her interpretation of order 3. Seeking reimbursement of items which so clearly lie outside the ambit of order 3, even on the wife’s interpretation, is a waste of the Court’s time and resources.

7. During oral submissions, the husband sought that the quantum of costs be assessed by the Court. There was subsequent communication received on 17 November 2010 from the solicitor for the husband saying it was not the solicitor for the husband’s intention to ask me to quantify costs, but he wanted an opportunity to lead further evidence as to their quantum. Given the financial resources of the parties I do not intend for this matter to continue further. I consider that in the circumstances, the wife should pay costs of $1,000. I note that the wife is already paying $7,800 in costs over a three year period of $50 per week. The further $1,000 in costs I order will be paid in 100 instalments of $10 per week. This is in addition to the $50 per week the wife has already been ordered to pay by way of costs on 17 June 2010.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 December 2010.

Associate: 

Date:  22.12.2010