F and F (No.1) - [2002] FMCAfam 410

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F (No.1)

[2002] FMCAfam 410

CHILD SUPPORT – Father liable to pay child support for child with special needs.

Child Support (Assessment) Act 1989, ss.117, 117(2)(c)(i), 117(2)(b)(I)

Gyselman v Gyselman (1992) FLC 92-279

Applicant:

K F

Respondent:

P F

File No:

MLM5976 of 2002

Delivered on:

18 July 2002

Delivered at:

Melbourne

Hearing Dates:

4 & 18 July 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr J St John

Solicitors for the Applicant:

Marshalls & Dent

Counsel for the Respondent:

Ms B Phelan

Solicitors for the Respondent:

McDonald Slater & Lay

ORDERS

IT IS ORDERED

THAT the Administrative Assessment of Child Support for the children E V F (“E”) born 30 March 1985 and S J F (“S”) born
19 October 1986 be departed from for the periods:
(a)18 July 2002 until 29 March 2003; and
(b)29 March 2003
until the completion of the school year in which each child turns 18 (“the relevant periods”)
THAT save for any terminating events as defined in the Child Support (Assessment) Act 1989 (“the Act”) which may otherwise bring Child Support to an end, the Husband pay Child Support for the relevant periods for E and S fixed by Administrative Assessment pursuant to the provisions of the Act, or in the sum of $1,000.00 per month whichever is the greater.
(a) THAT the Husband forthwith pay $7,500.00 to the Wife for the
school expenses for E for the year 2002;
(b)THAT for the year 2003, the Husband pay all school fees and levies, uniforms, prescribed books and stationary, local excursion fees and reasonable curricular activities for E at CAGGS or such other school as the parties agree.
THAT to facilitate payment of the liabilities specified in Order (1) of the Orders made on 25 March 2002, and these Orders:
(a)The Wife provide to the Husband a request for payment accompanied by a copy of the relevant invoice (or where there is no invoice) the receipt, and the Husband pay the account or re-imburse the Wife within 21 days after receipt;
(b)The Husband forthwith deposit the sum of $1,500.00 (“the fund”) into a bank account nominated by the Wife to be used as an “emergency” fund to meet any payment she is obliged to pay whilst awaiting payment by the Husband of liabilities he is obliged to meet pursuant to these Orders and/or the Orders made on 25 March 2002;
(c)The Husband renew the fund to the level of $1,500.00 upon being advised by the Wife that is has reduced below $750.00; and
(d)At the conclusion of the Husband’s liability for Child Support the Fund be applied firstly in payment of any outstanding liability of the Husband pursuant to these Orders and/or the Orders made on 25 March 2002 and secondly, in payment of any balance remaining to the Husband.
THAT the Husband keep the Wife advised in writing of full particulars of the health fund and level of coverage for each of the children and any changes thereto within 7 days of any such change.
THAT Order 1(a) of the Orders made on 25 March 2002 be varied to provide as follows:
“THAT the Husband meet all health insurance cover for the children and all reasonable medical, hospital, pharmaceutical and dental expenses as the children’s medical practitioners shall recommend and any other health related expenses to which the Husband has agreed to contribute.”

IT IS FURTHER ORDERED BY CONSENT

THAT in full satisfaction of all school uniform expenses of S incurred from 4 April 2002 to 2 June 2002, the Husband pay to the Wife the sum of $335.45 within 7 days.

IT IS DIRECTED

THAT all outstanding Applications be otherwise dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)MLM5976 of 2002

K F

Applicant

And

P F

Respondent

REASONS FOR JUDGMENT (1)

This Application concerned some discrete issues regarding child support payable by the Husband for the children, E V F, born 30 March 1985 and S J F, born 19 October 1986.
The hearing concerned the determination of discrete child support issues remaining after the parties have, fairly recently, reached agreement about property settlement and about much of the child support payable by the Husband. The Property Orders have some financial relevance to the position of the parties in these proceedings. On 9 April 2002 the parties reached agreement about property and Orders were made by consent. In summary, the Orders provided as follows:
a)The Husband pay to the Wife the sum of $25,000 on or before
24 April 2002, and $100,000 on or before 8 October 2002.
b)In the event that the payments were not made by the due dates two properties were to be sold to provide funds for the payment.
c)The parties otherwise retained the assets, including superannuation, which were in their respective possession.
On 25 March 2002, the parties reached agreement in relation to most of the issues concerning child support for the children. The Orders that were then made by consent were as follows
(1)That in addition to any payments made by the Husband to the Child Support Agency pursuant to assessment with respect to the children of the marriage, E V F, born 30 March 1985, and S J F born 19 October 1986, the Husband pay the following additional amounts;
(a)Health insurance and all reasonable medical and pharmaceutical expenses as recommended by the children's medical practitioners, being eligible service providers, and other expenses, in any event, or as in consultation with the Husband;
(b)Reasonable orthodontic expenses for the children in consultation with the Husband, he being permitted to discuss with the current orthodontist the fees to date and treatment proposed;
(c)Reasonable school expenses for the child, S, at C Gi S C including fees, levies, uniforms, required books, excursion fees and reasonable extra curricula activities payable from this day onwards within 14 days of submitting invoices to the Husband.
(d)The cost of microwater to be consumed by the child, E, payable within 14 days of invoices being submitted to the Husband.
(2)That on or before 25 May 2002, the Husband provide to the children a computer, printer and scanner appropriate for their educational requirements.
(3)That on or before 8 April 2002, the Husband pay to the Wife a sum of $5000 in full and final settlement of any claim the Wife has for past medical, educational, and like expenses as detailed in Schedules A and B initialled this day by counsel.
(4)That the Wife be at liberty to apply for a further order for the payment of private school fees for the child, E, after the conclusion of counselling now being undertaken with R W concerning (inter alia) issues relating to the children's education.
(5)The Form 63 Application of the Wife filed 17 December 2001 be otherwise dismissed.
The present Application came before the Court by way of the provision for liberty to apply for a further order for the payment of private school fees for the child, E, after the conclusion of counselling. The Application, however, included other matters.
The Orders sought by the Wife are set out in her Amended Application filed 4 June 2002. The Application sought:
(1)That irrespective of the Husband's employment status the Husband continue to pay child support at the existing top level of assessment for the two children, E V F born 30 March 1985 and S J F born 19 October 1986, until such time as the children complete their secondary education.
(2)That the Husband pay the following:
(a)Health insurance cover in respect of the children and pay for each of the children all hospital, medical, pharmaceutical, dental, orthodontic, optical, physiotherapy, psychologist and/or psychiatric expenses (this was subsequently amended at the hearing);
(b)All school fees, school levies, prescribed books and stationery, local excursion fees and reasonable curricula activities;
Such payments to continue until the children complete their secondary education.
(3)That the Respondent pay for the support of each of the children, a lump sum amount of $5000 per child, a total of $10,000 within 30 days.
(4)That the Husband provide security for his child support obligations pursuant to the Orders of this Honourable Court made 25 March 2002 and any further Orders by depositing the sum of $6000 into a bank account nominated by the Wife ("the fund"), such money is to be applied by the Wife towards the Husband's obligations arising from time-to-time pursuant to the Orders.
(5)That the Husband renew the fund to a level of $6000 within seven days of being advised by the Wife in writing that the balance has reduced below $1000.
(6)That the Wife account to the Husband every two months by forwarding to the Husband copies of all relevant accounts and withdrawals made from the fund.
(7)That the Husband keep the Wife advised in writing of full particulars of the health fund and level of coverage for each of the children and any changes thereto within seven days of any such change.
(8)That the Husband forthwith provide a written authority to the health fund appointing the Wife as his agent to make direct claims and enquiries on his behalf in relation to each of the children.
(9)That the Husband forthwith pay all periodic and non-periodic child support arrears in accordance with the Orders of 25 March 2002.
(10)That the Husband provide such further lump sum security for his periodic child support payments that this Honourable Court deems appropriate in the circumstances.
(11)That the Respondent pay the Wife's costs of and incidental to these proceedings.
(12)Such further or other Order as the Court deems fit.

Background

The parties were married in June 1980 and separated on 19 October 1990. A decree nisi was granted on 26 July 1995. Since separation the children have lived with the Wife.
At the time of separation, the Husband was operating a business in the computer industry. The parties had mortgaged their home to establish the business. However, it was not successful and by 1989 had got into serious financial difficulties. Shortly after, the parties lost everything, including their matrimonial home, and were left with significant debt. At the time of separation they were living in rental accommodation and the Husband was working in the computer sales area.
Following separation the Wife was in straitened circumstances for some time and for a period of time the children lived with her parents while she lived with her sister. During this time, E developed asthma and suffered severe emotional problems.
In December 1992, the Wife was diagnosed with non-Hodgkins lymphoma. She had chemotherapy until mid-1999 and was severely ill on many occasions during that period.
The Wife was unable to obtain and hold down employment, and in 1994 commenced retraining as a counsellor. Her parents assisted her to a significant degree with the children.
The Husband commenced living with his present wife and her children and re-married in 1998 but despite some counselling arranged at the Family Court, he chose to have little contact with the children.
As the chemotherapy did not seem to be working, the Wife was advised that her only option was to have a bone marrow transplant. She had the bone marrow transplant in October 1999 but has suffered numerous side effects ever since from the immuno-suppressant drugs required.
In 2000, she commenced work for a friend as an office manager of A D. She is still working but her health requires her to be away from work unexpectedly from time-to-time. Recent tests have indicated that she is not free from the lymphoma, despite the bone marrow transplant, and her capacity to continue to work now and into the future is very much dependent upon the maintenance of her health, which is fragile.
The Husband has been employed since separation and his last position was as chief executive officer of E C A. His position from that company was made redundant in May 2002.
Since late 2000, E experienced health problems which have become increasingly more severe. The symptoms include progressively painful aches in joints and muscles, sore, dry and itchy eyes, sneezing, coughing, skin rashes, dizziness, nausea, diarrhoea, extreme lethargy and tiredness, depression and mood swings. She has been diagnosed with various conditions including rheumatoid arthritis, palanidromic rheumatism, hayfever, asthma, hormonal/menstrual problems, depression, chronic fatigue syndrome and myopia. She has been treated by a variety of medical professionals including allergists, psychologists, physiotherapists and orthodontists. She presently has an orthodontal problem which requires treatment. She has been in a poor physical and mental state and, in addition to her own problems, is worried about the Wife's health and future. Due to the Wife's financial position, she has been unable to afford extra curricula activities which E would have liked.
S is currently completing Year 10 at CGSC. She is progressing well.
The Wife and children live in a modest small rental house. The cost of obtaining larger accommodation nearer to their schools is too expensive for the Wife to afford. In December 2001, the Wife changed E's doctor who seems to have referred her to a more appropriate specialist for investigations and tried to coordinate appropriate treatment. She seemed to be improving slowly but became depressed and agitated at the commencement of the 2002 school year at SSSC.
The Wife was advised by professionals that she would benefit if she was able to attend a private school. The Wife was able to secure a position for her at CAGGS, who have a strong reputation as a caring and supportive school. She commenced on 4 February 2002 but within a short time had become severely depressed, with panic attacks. The intervention of a psychiatrist, Dr P J, had been sought and she was diagnosed with severe depression and panic attacks and placed on

anti-depressant medication. She was not able to leave the house without extreme anxiety without the Wife. She would not let the Wife out of her sight and spontaneously burst into tears and deep sobbing and refused any social contact even with people she knew and trusted. When people came to visit the Wife, she would panic and hide. This created difficulties for the Wife who was unable to work much over this period.
In late February 2002, E consulted a new rheumatologist, Dr M T, who appears to be making progress with her condition. At about the same time, she consulted Dr N S, a consultant allergist who tested for allergens and prescribed a course of desensitisation injections once a fortnight for four months and thereafter over four months a year for the next three years. E is apparently feeling more positive about the treatment of these related problems. Although she is slowly commencing to improve, her day revolves around medical appointments and work.
Although the Wife would like to be available full-time for E, her financial position requires that she work as much as she can.
E's medical treatment includes the following:
a)Consultations with Dr P J, which are $150 per session. After the rebate from Medicare it amounts to something in the region of $32.30 per session.
b)The cost of serum for E's injections from the consultant allergist is $210 for the four month period.
c)Consultations with the rheumatologist, Dr , $140 per session and E sees him regularly, at least every two months. The Wife anticipates further costs associated with the program, including exercise regime, dietary modification, physiotherapy, massage, hydrotherapy and yoga.
d)E sees Dr D W, an ophthalmologist every three months.
e)E is seeing B S of H H C, who is a homoeopath. E has been having bio-energetic feedback enhancer treatment with alkaline water therapy. She received considerable benefit from this and the Wife has acquired a micro-water system which attaches to her normal household plumbing and changes water from acidic to alkaline and alters the chemical balance of the body. Since providing this water to E, her pain levels have decreased significantly.
E takes the following medications:
a)Voltarin morning and night, which is an anti-inflammatory for the arthritis.
b)Multimax vitamins and minerals.
c)Plaquenal which is an immune suppressant.
d)Luvox, which is an anti-depressant.
e)Moodlift and San-E which is an anti-depressant.
f)Stilnox which is a muscle relaxant and mild sedative for the panic attacks.
g)Allergy eye-drops.
h)Claratyne for systemic allergies.
i)Analgesics for the arthritis.
j)E requires multi-vitamin and mineral supplements to assist with minimising the negative side effects of her medications.
Both E and S require orthodontic treatment. They have attended upon Dr Hilton Katz, orthodontist, for initial consultations. Dr Katz has estimated his fees for E will be approximately $4950 and for S, approximately $4750. Surgery for the girls to remove wisdom teeth has been necessary.
The Wife has incurred school expenses for E at S S C and CAGGS. Fees for Year 11 are $11,295. In addition to the fee, there are books at a cost of almost $600 for E, and purchase of a uniform. S's school fees are much more modest, $743.50, plus some elective fees. In addition there are books and uniforms and a laptop has been suggested by the College.
The background to the parties' position and in particular, the Husband's acceptance of a retrenchment package from his employment which was effective from 9 May 2002, provides the context for the Wife's Amended Application. The Amended Application seeks orders which would require the Husband to continue to pay child support at the existing top level irrespective of his employment status, medical and health expenses for E together with school fees, that is, books, stationery, excursion fees and reasonable extra-curricular activities, a lump sum payment for the children, and as security for periodic child support and the establishment of a fund of $6000 to be maintained and applied by the Wife towards the Husband's obligations from

time-to-time arising from Orders for child support.
Notwithstanding the fairly detailed Orders that the parties had reached agreement about on 25 March, as a result of the combination of the Husband's retrenchment on 9 May 2002 and what the Wife alleged was difficulty in obtaining payment from him, the determination of the present Application was of a more expanded nature than the Orders made in March envisaged.

Determination of issues

I intend to deal with the evidence of the parties and the findings in the context of each of the issues to be determined.

Prerequisites to the exercise of jurisdiction

In this case there are Orders being sought in the form of payment of school fees and a lump sum which is beyond the capacity of the Child Support Agency to adjust with an administrative assessment and requires an application to the Court.

The Law

The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act 1989. Section 3 contains the obligation that parents maintain their children.
The objects of the Act include the object that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents and that the parents share equitably in support of their children.
When considering a Departure Application, the Court must follow the three step process described in Gyselman v Gyselman (1992) FLC

92-279. The Court must be satisfied that in the special circumstances of the case, the current assessment would amount to an unjust and inequitable determination in the level of support provided by the liable parent for the children on one of the grounds set out in s.117 of the Child Support (Assessment) Act. In this case the Applicant Wife relies upon the following grounds:
a)That in the special circumstances of the case, her capacity to provide financial support for the children is significantly reduced because of the special needs of the children and her commitments to enable to support herself;
b)That in the special circumstances of the case, application of the administrative formula would provide an unjust and inequitable determination of the level of child support because of the income, earning capacity, property and financial resources of the Husband; and
c)That in the special circumstances of the case, the costs of maintaining the children are significantly affected because of the special needs of the children.

Issue 1: Should the Husband be required to pay child support at the existing top level of assessment until such time as the children complete their secondary education whether or not he is in employment which would, on an administrative assessment, provide for the top level of payment?

The relevant assessments were an assessment for the period 1 January 2002 to 29 March 2003 which required the Husband to pay a monthly figure of $2182.33 based upon a child support income of $108,732 (above the maximum rate). This was recalculated between 11 June 2002 and 20 June 2002 to a figure of $2290.58 per month based upon a child support income of $113,352. The Wife seeks a continuation of child support at the top rate.
It is common ground that the Husband was earning in excess of the child support income amount which is the maximum amount upon which an administrative assessment of child support is made. The Husband's income for the 2000/2001 financial year was a net income of $394,000. His gross income was in excess of $700,000. When he initially completed his financial statement on 25 February 2002 he revealed a gross income of $253,000 per annum. Clearly that sum was significantly different from the $700,000 gross he earned for the year ended 30 June 2001.
The Husband said that he thought the financial statement required him to put in information about the last completed year of tax, which was the 2000 year. He said that when he changed his advisers this was brought to his attention by his new solicitors and he corrected it. I do not accept the Husband's evidence in this respect. The information he put into his financial statement was 20 months out of date and the financial statement itself is not suggestive of anything other than current income. It is disingenuous, in my view, for the Husband to suggest that he believed he had to put an outdated 20 month old figure for his income because his tax return for the previous year had not then been completed.
I find that the Husband was well aware of the amount he had earned in the previous financial year and the figure placed in the financial statement by him, although higher than the maximum amount on which an administrative assessment of child support would be made, was done in order to conceal from the Wife and the Court the real income he was earning.
Nothing turns upon this particular fact at this stage, however, in view of the Husband's attitude to the completion of his financial statement, I must approach his evidence in relation to financial matters with some caution.
For the year ended 30 June 2002, during which period the Husband was employed until 1 May, he received income of $148,750 together with commissions. The amount of those commissions is uncertain. In his Affidavit sworn 8 May 2002, the Husband said he had earned $304,125 in commissions. The Husband was cross-examined about this amount and claimed that it was lower. During and adjournment the Husband was requested to obtain copies of quarterly statements or statements in relation to the commissions he received. He did not in the end produce such statements but gave evidence about what he had been told in relation to his own position.
In view of the Husband's unreliability in revealing his true financial position, I am reluctant to accept his evidence without the provision of statements or some form of group certificate from the company which would reveal his position and find that it is more likely his commissions were as he had previously deposed, namely, in the sum of about $300,000.
The problem however is that on 1 May 2002 the Husband was retrenched from his employment. The Husband was cross-examined about whether his retrenchment was voluntary or not. Having heard the evidence I accept that the Husband's employment was not voluntarily ceased and that he was made redundant against his wishes. I find that the Husband was genuinely surprised and upset when his position was terminated. I also find that the Husband has met his child support liabilities in the past and there was no benefit to him in relinquishing his employment as he has proposed that he will continue to meet child support payments at a reasonably high level. This is not a case in which the Husband will, as a result of loss of his current employment, be left with no child support liability and therefore there is no advantage to him in leaving his employment, and a considerable disadvantage in leaving a job which was so remunerative.
Despite the fact that there was some reference in an inter-company newsletter that the Husband had left voluntarily, I find that this was simply a means of allowing the Husband to save some face with the other employees of the company and that his employment was terminated by the company.
The Husband received a retrenchment package of $165,000. He has spent that money in the following manner:
·Legal fees, $30,000
·Legal fees, $7500
·Payment off his mortgage, $39,000
·
Payment for the children in accordance with the Orders of

25 March, $5000
·Computer
·
First payment to Wife in accordance with the Orders of

25 March 2002, $25,000
·Medical expenses on behalf of the children, $8000
·Purchase of motor vehicle for his wife, $44,000
Total: $158,500
The Husband said he had, at the time of hearing, limited cash reserves of between $3000 and $4000 and had spent the balance of moneys on other household bills.
The Husband has a half interest with his present wife in their home in E M which is encumbered. They have an interest in two other investment properties which are also heavily encumbered. The Husband has some superannuation and some shares. All of these matters were taken into account when the property settlement was reached between the parties on 25 March 2002 and pursuant to those Orders the Husband is to pay the Wife $125,000 in two instalments. Given the liabilities that attach to the assets of the Husband and the fact that the property settlement was so recently negotiated it would not be reasonable, in my view, for me to consider the assets of the Husband as an additional source of Child Support given that the Wife is to receive what is clearly a just and equitable share of those assets. The Husband's equities in the properties are relatively modest.
The Husband was cross-examined about an interest in some other properties in S G, G I, which are registered in the name of a company

F I Pty Ltd. The cross-examination was somewhat surprising given that the existence of the companies was known prior to the Orders being made on 25 March. In other words, they would have been taken into account in the property settlement which the Wife received. The Husband's evidence was that although he was a director of the company, the properties had been purchased in 1988 and 1999 and were mortgaged almost to their full extent. These were regarded as the property of his present wife and all expenses were paid out of her savings. The Husband says he receives no income generated by the properties and the income is used to support the mortgage payments. I accept the Husband's evidence in this regard and note that this matter was known to the Wife's advisers prior to the property settlement so that it was either taken into account or accepted that the Husband's explanation was an accurate one.
It is clear that in order to raise the $100,000 to pay the Wife the Husband will either have to sell and realise assets or borrow further funds.
The Wife's position is much less secure. She has an uncertain income for the reasons outlined and her assets will be virtually comprised of the $125,000 which the Husband is required to pay her, less any legal fees which she is required to pay.
The Wife contended that notwithstanding the termination of the Husband's employment his overall financial position and his capacity to earn employment at a high rate provided a special circumstance pursuant to s.117(2) of the Child Support (Assessment) Act which required the Husband to continue to pay child support at the maximum rate (which is at present about $27,000 per annum) notwithstanding that his income from time-to-time be in an amount which would not on the administrative formula, entitle the Wife to receive that sum.
The Husband acknowledged that he had an obligation to contribute to the support of the children to the extent that he could do so. He was optimistic about obtaining further employment although not necessarily at a level commensurate with that earned in his last position. He offered to pay periodic child support at the level assessed by the Child Support Agency but in any event at no less than $1000 per month, whatever the assessment might be. He contended that the Orders of

25 March require him to pay other expenses which deal with the children's special needs and he made a proposal for payment of school fees. Having regard to these matters, he contended that as he would be paying the other amounts whatever his financial position, it would not be reasonable for him to pay a greater amount of periodic support than his income would normally provide, save that he was prepared to ensure that it was not less than $1000 a month.
On the first issue of periodic child support, I am not satisfied that the Wife has established a ground pursuant to s.117(2)(c)(i) or on any other basis for payment of periodic support. The Wife is entitled to receive $125,000 from the Husband. The balance of that payment, namely $100,000, must be paid for by him. That will put pressure on his financial position.
I am satisfied that his employment was terminated without his consent and that he will be meeting a number of other expenses of the children including school fees, which are not inconsiderable. His offer is to pay child support in addition to those other sums at the rate assessed by the Agency on his income from time-to-time. In addition, he offers to ensure that that payment is never less than $1000 per month. In my view, that is a reasonable proposal and given that proposal, I am not satisfied that there are any special circumstances by reason of which I should require him to pay a periodic sum (beyond that which is offered) which his child support income would not otherwise require him to pay. Put another way, it would be unjust and inequitable, in my view, for him to be required to pay periodic child support at the highest level if he is not in employment which provides him with an income upon which child support at the highest level would be calculated.

Issue 2: Should the Husband pay health insurance cover and expenses as sought plus all school fees, school levies, prescribed books and stationery, local excursion fees and reasonable curricular activities for E?

The first of these payments sought is really a variant of the Order made on 25 March. That Order provided the Husband pay:
Health insurance, and all reasonable medical and pharmaceutical expenses as recommended by the children's medical practitioners, being eligible service providers and other expenses, in an event, or as in consultation with the Husband.
The difference is that what is being sought is in addition to the matters specified in the Orders, the Husband pay hospital, dental, orthodontic, optical, physiotherapy, psychologist and/or psychiatric expenses. During the running of the matter, the Wife proposed to frame the Orders sought in a different way, which is as follows:
That from the date of this Order the Husband meet health insurance cover in respect of the children together with all hospital, medical, pharmaceutical, dental, orthodontic, optical, physiotherapy, psychologist and/or psychiatric expenses as the children's medical practitioners shall recommend save that (except for day-to-day illnesses or injury) no new course of treatment or medication be undertaken without prompt written notice to the Husband and the Wife giving all necessary consent and authorisation to permit the Husband from time to time to obtain reports and/or information as to such new courses of treatment from the relevant health professional.
In the end, I am not satisfied that there was really any significant area of disagreement between the parties as to what the Husband should pay. Given the parties have reasonably reached agreement and that there has not been any significant variation to the Husband's financial position, except detrimentally, I do not see any special circumstances by reason of which I should increase the Husband's obligations in this regard.
I propose to make Orders which will provide a mechanism for the reimbursement to the Wife of payments and to clarify the Orders so that it is clear that the Husband's obligation to pay pursuant to the Orders of 25 March 2002 will relate to health insurance cover or reasonable medical, hospital, pharmaceutical and dental expenses as the children's medical practitioners shall recommend, and any other health related expenses to which the Husband has agreed to contribute.
In relation to tuition fees for E, the Wife proposes that the Husband should pay all school fees, school levies, prescribed books and stationery, local excursion fees and reasonably curricula activities. The Husband did not dispute that E should attend a private school or that she had special needs which constituted a ground under s.117(2)(b)(i) of the Act. It was only the quantum of the payment which was in dispute. The Husband proposed to pay $7500 to the Wife for school expenses for the year 2002. On the evidence, that sum seemed to cover most of her expenses and I am satisfied that in the current year the Wife has had the capacity to meet any additional expenses. For the forthcoming years the Husband proposed to pay the amount of $10,000 per annum as a lump sum payment towards her educational expenses. The Wife estimated that the expenses for the year 2003 would be about $13,5000.
Having regard to the Husband's financial position there is not a great deal of difference between these two sums. Whilst the Wife may have some modest capacity at the moment to contribute towards the expenses I would be concerned that if the Wife becomes less well, which is quite possible on the evidence and the Husband's periodic maintenance support decreases, the difference may impinge in a more significant way on the Wife's capacity to contribute and therefore on E. The Wife's earning capacity is about $13,000 per annum and she really has little margin for any changes to her financial position.
In the circumstances, I am satisfied that E has special needs and that the Husband has the capacity from his income and financial resources to meet the amount of the fees in total.

Issue 3: Should the Husband pay a lump sum amount of $5000 per child within 30 days?

This sum was sought by the Wife in her original Application which was resolved by Orders made on 25 March 2002. The liberty to apply given in that Order was to apply:
For a further Order for the payment of private school fees for the child, E, after the conclusion of counselling now being undertaken with Robyn Weir concerning (inter alia) issues relating to the children's education.
The balance of the Form 63 Application filed 17 December 2001 was to be otherwise dismissed. I regard this Application as having been dismissed by the Orders made on 23 March 2002.

Issue 4: Should the Husband provide security for his child support obligations by depositing the sum of $6000 into a bank account nominated by the Wife and enabling the Wife to draw upon that sum?

The Wife's case is based upon the fact that she has sent invoices to the Husband for various expenses including orthodontal expenses and that he has not met all of those payments. She further asserts that although she has made claims on Medicare, the Husband has not paid the GAP payment to her. On this basis, she asserts that the continued chasing of the Husband for payment is stressful and that there should be a fund on which she can withdraw if the Husband is in arrears.
The Husband says that he has communicated with the orthodontist and at the time of hearing recently paid $4860. He says that he received from the Wife a list of payments required of him in the form of an invoice from the Wife but that as a result of some of the payments, he was not prepared to pay them without seeing the invoices. Some of the pharmaceuticals, for example, he says are not prescribed pharmaceuticals and are items which are purchased from a supermarket and for which he is not responsible. It was contended on his behalf that a regime of forwarding invoices so that the Husband could ascertain exactly what was being sought to be paid was only just being put in place and had now been agreed to. On this basis, it was contended it would be unreasonable to make any finding that the Husband was in arrears or to find that the Husband was unreliable in relation to payments because an adequate mechanism for seeking payment had not yet been established. In particular, the Husband pointed to items such as vitamins, a brace, public transport expenses and a school bag as being expenses which he was asked to pay but which did not fall within any of the Orders made.
At this stage I am satisfied that the Husband has not been given the required invoices with the particularity which makes it clear what he is required to pay. I accept that the parties are in the process of making some arrangements and I propose to make Orders which will ensure that that occurs. There are invoices for public transport and school bags, for example, which do fall outside the Orders and therefore at this point I do not see it as unreasonable for the Husband to have at least sought clarification. There seems to have been some discussion between the Husband and the orthodontist and again I am not satisfied that there are fees outstanding in the sense that the Husband may have reached some accommodation with the orthodontist for the payment of future fees.
The Orders for payment by the Husband are wide reaching and can be the subject of legitimate dispute unless carefully particularised. Thus at this stage, I am not satisfied that it would be appropriate for a lump sum fund as proposed by the Wife to be established.
On the other hand, there have been some delays in payment and there is some value in having a fund from which legitimate payments can be made if necessary. There may be times when the Wife is required to make a payment which has not yet been reimbursed to her or paid by the Husband. However, it would be sensible for the Wife to use that fund only if there is some delay in payment by the Husband and some necessity to pay without awaiting payment by him. The fund should not be $6000 but in my view should be $1500 which should be used by the Wife only in the event of some real need to call upon it. In addition, I propose to make Orders which will provide that the Wife provide to the Husband a request for payment accompanied by a copy of the relevant invoice or the receipt and the Husband reimburse the Wife within 21 days.
I am also satisfied that the Husband should keep the Wife advised in writing of the full particulars of the health fund and the level of coverage for the children.
I do not consider that the Wife has establish that at this stage it is necessary for her to be appointed as his agent to make direct claims. Because of the nature of the Orders, he ought to be in a position to know what claims are being made himself.

Issue 5: Should the Husband forthwith pay all periodic and non-periodic child support arrears?

This matter was an addition to the Amended Application and is in a sense a request for enforcement. There is, in my view, some dispute as to the precise amount that the Husband is required to pay. For example, the Husband has pointed out that some of the amounts he has been asked to pay include school bags, vitamins and a brace, and public transport, which he is not obliged to pay pursuant to the Orders. The resolution of what is outstanding and what is not should be more clear once the Wife has provided copy accounts to the Husband in accordance with the Orders I propose to make.

The Husband's case is that he is prepared to meet all payments required of him but that he is still awaiting clarification of some accounts.

I make no finding as to whether there are any arrears at the present time arising from the Orders of 25 March 2002 but in view of the manner in which payments have been sought and the Orders I propose to make, it is premature for that issue to be determined and I do not propose to make any Order in relation to it.

Issue 6: Should the Husband provide a further lump sum security for his child support payments?

In my view there is no need for any further lump sum security, for the reasons that I have already advanced in relation to the security sought. It is only a relatively short time since 25 March when the Orders were made and there are still some areas of legitimate disagreement between the parties as to whether there are arrears or not. The evidence does not, at this stage at least, in my view, support a need for any further security to be provided by the Husband.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 16 December 2002