George and George (No 2)

[2016] FamCA 857

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE (NO 2) [2016] FamCA 857

FAMILY LAW – ENFORCEMENT – Where a declaration is made as to an amount outstanding under final orders – Where that amount can be taken from the proceeds of sale of a property – Where orders are made to facilitate the wife’s access to Medibank records.

FAMILY LAW – COSTS – Lump sum costs order made.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms George

RESPONDENT: Mr George

FILE NUMBER: SYC 7612 of 2011

DATE DELIVERED: 6 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 27 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton, SC

SOLICITOR FOR THE APPLICANT: York Family Law

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Order 1 made 27 July 2016 be discharged (with the effect that the amount in that order be replaced with the amount in order 3 made this day).

2. Order 3 made 27 July 2016 be varied so that the words “The amounts that have been declared as owing” be changed to the words “The amount referred to in order 2”.

3. Pursuant to rule 20.07A Family Law Rules 2004 (Cth), a declaration be made that pursuant to order 18 of the orders of 27 January 2015, a sum of $30,116.99 is payable by way of non-periodic child support payments.

4. The amount of $30,116.99 to be paid to the wife from the husband’s share of the sale of the property situated at B Street, Suburb M.

5. Within seven (7) days from the date of these orders, the husband do all acts and things and sign all documents necessary as requested and required by both or either of the wife and Medibank Private to authorise Ms George to have all permissions, consents and authorities to:

   5.1.Make inquiries with Medibank Private about the level of cover of the children with Medibank Private Health Insurance cover accounts;

   5.2.Update the level of cover of the children’s Medibank Private Health Insurance accounts so that the children have top extras cover, as provided in order 18 of the orders made 27 January 2015;

   5.3.Receive copies of all tax invoices and payment requests in relation to the Medibank Private Health Insurance premiums payable in respect of the children’s Medibank Private Health Insurance cover amounts;

   5.4.Make payments to Medibank Private for the private health insurance premiums payable in respect to the children’s Medibank Private Health Insurance cover accounts in the event of default of compliance by the husband with order 18 of the orders made 27 January 2015;

   5.5.Receive copies of all private health insurance policies relating to the children’s Medibank Private Health Insurance cover amounts;

   5.6.Submit applications for rebate claims for all medical expenses incurred by the wife for the children and receive rebate claims from medical expenses incurred by the wife for the children.

6. The husband do all acts and things and sign all documents necessary as may be requested and required by both or either of the wife and Medibank Private from time to time in relation to the permissions, consents and authorities to be given to the wife, Ms George, in relation to the Medibank Private Health Insurance cover accounts required to be maintained by the husband pursuant to order 18 of the orders made 27 January 2015.

7. In the event the husband fails, omits or neglects to comply with order 5 and/or order 6, then the wife be appointed pursuant to s 106A Family Law Act 1975 (Cth) to execute on behalf of the husband any documents to give effect to order 5 and/or order 6 hereof.

8. The husband pay the wife’s costs of and incidental to the wife’s Applications in a Case filed 17 June 2016 and on 8 August 2016 in the sum of $6,000.

9. The amount of $6,000 referred to in order 8 be paid to the wife from the husband’s share of the proceeds of the sale of the property situated at B Street, Suburb M.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7612 of 2011

Ms George

Applicant

And

Mr George

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter has had a long running history which may end one day. Final orders were made by me on 27 January 2015. This is an application by the wife for enforcement of part of the final orders.

2. Order 18 made 27 January 2015 provides for:

   2.1.The husband to meet 75 per cent of certain expenses by way of non-periodic child support until the children complete their Higher School Certificate;

   2.2.The husband is to maintain the children’s private health insurance with top extra cover with Medibank Private.

3. The wife initially filed an Application in a Case seeking enforcement orders. The matter was listed before me on 27 July 2016. The husband did not appear at that court event. An error in the wife’s application was identified and absent an appearance by the husband, orders were made which provided, inter alia, that pursuant to order 18 of the orders made on 27 January 2015, the sum of $16,733.74 is payable by way of non-periodic child support payments by the husband whilst reserving the husband’s ability to seek extra payments. I made some further directions that the parties file and serve any further application in a case within 7 days (the wife filed an Amended Application on 3 August 2016 and then to better comply with the direction, filed an Application in a Case on 8 August 2016). That is the application with which I now deal. That application was served on the husband by email and express post on 11 August 2016.

4. The application seeks that a declaration be made that the amount owing under certain expenditures covered by order 18 of 27 January 2015 be in the sum of $13,342 and that that amount be taken from the husband’s share of the proceeds of the sale of the property at B Street, Suburb M (“the Suburb M property”). Those items are referrable to 2015 and 2016 tuition fees for the child D; 2015 tuition fees for H; 2015 school uniform for H ; 2015 school uniform for D; chiropractic expenses for D; orthopaedic surgeon’s account for D; 2015 dance tuition fees for H; and 2015 dentist and orthodontist fees for the children.

5. The wife seeks the amounts owing be paid from the proceeds of the sale of the Suburb M property. Contracts for the sale of Suburb M were exchanged on 2 September 2016 for a sale price of $661,000 and the settlement of that sale is scheduled to take place on 14 October 2016.

6. The wife further seeks orders aimed at allowing the wife to access the children’s Medibank Private insurance cover in circumstances where the wife complains that she has had difficulty in obtaining the husband’s permission, consent and authorities to do so.

7. Finally, the wife seeks an order for costs in relation to the applications filed on 17 June 2016 and 8 August 2016.

SERVICE

1. I am satisfied that service of the relevant applications has been adequately effected and the husband has not participated or filed any effective response. The husband was sent the orders I made on 27 July 2016 which gave him 21 days from the date of receiving any further application in a case (which the wife filed on 8 August 2016) to file and serve any response.

2. I accept that the lawyers for the wife have not heard anything from the husband since the documents were served

ENFORCEMENT OF ORDER 18

1. The matter was before me on 27 July 2016. The application before me on that day was for a declaration that pursuant to order 18 of the orders made 27 January 2015 the sum of $16,733.74 was payable by way of non-periodic child support payments.

2. On that day the wife sought to amend her application to seek a declaration of a higher figure than that and I indicated that given that that application had not been properly served upon the husband I would not entertain that application but that I was satisfied on the basis of the material that at least $16,733.74 was outstanding and I made that order.

3. The wife now seeks a declaration as to an additional amount of $13,342.

4. I made a direction on 27 July 2016 that any further application clearly set out how any additional claim is calculated.

5. There is no attempt in the affidavits subsequently filed by the wife’s lawyer to reconcile the order for the payment of $16,733.74 made on 27 July 2016 with the amounts now subsequently claimed. The source of all the claims made are contained in the wife’s affidavit filed 17 June 2016.

6. The best I can do is go through the wife’s affidavit in an attempt to make an order based on the evidence in that affidavit.

Paragraphs 15 and 16 - School Q fees for D	$12,733.00
Paragraph 19 – School I fees for H	$15,427.50
Paragraph 20 – H’s school uniform	$164.63
Paragraph 21 – D’s school uniform	$167.25
Paragraph 22 – D’s chiropractor	$438.75
Paragraph 23 – D’s surgeon fees	$175.61
Paragraph 24  – H’s 2015 dance fees	$360.00
Paragraph 24– Children’s dental care bill	$609.00
Paragraph 26 – Further chiropractic expense	$41.25
$30,116.99

1. At [15] and [16] of the wife’s affidavit filed 17 June 2016, the wife gives evidence that she sought a statement of account from D’s school in relation to school fees as at June 2016. Annexure I to the wife’s affidavit is that statement of account. That statement indicates that the balance outstanding as at June 2016 was in the sum of $16,232.75. The current outstanding debt from the 2015 year was in the sum of $2,233.75. The wife deposes to the fact that she had paid her share of the 2015 school fees in November 2015 and that amount of $2,233.75 is referrable to a non-payment by the husband.

2. The wife says she does not know the exact dates when the husband paid part of the school fees he owed to the school in 2015.

3. The wife says that the husband has not paid any account to the school for 2016. The wife asserts that the fees payable in relation to the 2016 year are in the sum of $13,999 ($16,232.75 – $2,233.75). The wife has paid 25 per cent of the amount of $13,999, namely an amount of $3,499.75. The wife seeks a declaration that the husband owes $10,499.25, being 75 per cent of the 2016 tuition fees and the balance of the 2015 tuition fees in the sum of $2,233.75.

4. The wife seeks an amount of $15,427.50 being the husband’s 75 per cent contribution to the 2015 tuition fees to School I for H. The wife paid 100 per cent of H’s 2015 school fees in the sum of $20,570 when the husband was non-responsive to the school’s approaches for him to pay and the wife had received communication from the school that if school fees were not paid then H would not be able to attend any school functions or complete her Higher School Certificate.

5. I am satisfied the evidence provided supports the other lesser claims and I am prepared to make that enforcement order.

PRIVATE HEALTH INSURANCE

1. The wife says that since the final orders were made she has not been able to receive information about the children’s Medibank accounts. On 29 August 2014 the wife had emailed the husband enclosing an authority to Medibank for him to sign that would allow her to make such inquiries but he did not. On 29 April 2015 the wife’s lawyers wrote to Medibank enclosing a copy of the orders that had been made and requesting Medibank to update their records. Medibank informed the wife’s lawyers that they had attempted to obtain the husband’s consent to do so but he had not answered their calls. This is confirmed in email communication between Medibank and the wife’s lawyers in May 2015.

2. The wife gives further evidence of subsequent difficulties that she has had in accessing information from Medibank and being able to deal with Medibank in the context of various illnesses and injuries that the children have sustained. Given the history deposed to by the wife I am prepared to make the orders that she seeks.

COSTS APPLICATION

1. The wife seeks an order for costs in relation to her Application filed 17 June 2016 and in relation to the current application, initially on an indemnity basis to be quantified in a lump sum and if not, on an indemnity basis to be agreed or assessed and if not, on a solicitor/client basis at a fixed sum and if not, at a solicitor/client basis at a sum as agreed or assessed and if not, on a party/party basis to be quantified by the court and if not, on a party/party basis to be agreed or assessed.

2. There were difficulties with the initial application made to the court which necessitated a further application being made. I formed the view on reviewing the material that the application that was made on the second day has replicated the application made on the first day to some degree and I was in fact invited on the second day to make an order which would have to some degree double counted the order that had already been made. I intend to adopt a different approach to that submitted to me by discharging the original order and making a fresh order.

3. I take into account that the nature of this application is essentially an application for enforcement of orders in circumstances where the husband seems to have not complied with orders that the court has made and has otherwise been unresponsive to requests that he comply with court orders or unresponsive to the applications that have been made.

4. Ultimately the wife has been substantially but not wholly successful in the applications that have been made.

5. The material filed in support of the applications could have been more succinctly and clearly set out.

6. I am not satisfied that an order should be made on an indemnity or solicitor/client basis.

7. I am attracted to the submission that the court should set a lump sum in order to eliminate any further litigation by way of cost assessment between the parties.

8. I assess the wife’s costs of bringing this enforcement application in the sum of $6,000 and will make an order accordingly. That amount can be deducted from the sale proceeds of the Suburb M property.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 6 October 2016

Associate: 

Date:  6.10.2016