Golberg and Golberg

[2009] FamCA 1382

FAMILY COURT OF AUSTRALIA

GOLBERG & GOLBERG [2009] FamCA 1382

FAMILY LAW – CHILDREN – Undertakings to pay school fees

APPLICANT: Ms Golberg

RESPONDENT: Mr Golberg

FILE NUMBER: SYC 4627 of 2007

DATE DELIVERED: 14 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 28 September 2009 and by written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Youssef

SOLICITOR FOR THE RESPONDENT: Mr Wahhab

Orders

1. The husband and wife are to do all things and sign all documents necessary to:

   (a)Enrol the child, L, born … January 2006, to attend S Private School from the commencement of his schooling until he concludes his high school education.

   (b)Continue to enrol Z, born … September 2000 to attend S School until he concludes his high school education.

2. The Court notes the undertaking given to the Court by the husband in paragraph 1 of the document titled “Undertaking” and dated 23 October 2009. The Court also noted the undertaking of the husband’s parents, the paternal grandparents, dated 9 October 2009.

3. The wife is not to charge any expense to the school account for either child, or enrol either child in, or nominate either child for, any activity which may generate a charge on the school account, without the written consent of the husband.

4. The parties are to agree on a method of acquiring the children’s school uniform requirements which enables the wife to be at least equally involved in the selection and fitting of the uniforms.

5. A copy of these orders may be published by either party to the Child Support Agency and a relevant person holding an office at S School responsible for the issue of accounts to parents and/or for the enrolment of students attending the school.

6. The husband is to cause each of his parents to file with the Court and serve upon the wife within twenty-one (21) days from the date hereof an “Undertaking to the Court” in the form volunteered by each in their affidavits filed in the proceedings on 7 September 2009.

7. In the event of the husband failing to comply with Order 6 hereof the wife has leave to immediately apply to the Court to discharge the Orders made herein.

8. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. All outstanding applications and responses which seek orders are otherwise dismissed.

10. The husband’s application for costs is dismissed.

notations:

(a)The Court notes that the Orders made herein are not “child support orders” made pursuant to the Child Support (Assessment) Act 1989 or any other associated child support legislation.

(b)The Orders made herein are not intended to relieve the wife of an obligation to contribute to every conceivable cost associated with the education of the children. Each of the parties should contribute to the acquisition of items such as writing instruments, writing paper, exercise books etc. in the same manner as they might be expected to contribute individually if the children were attending a government public school.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       SYC 4627 of 2007

MS GOLBERG

Applicant

And

MR GOLBERG

Respondent

REASONS FOR JUDGMENT

1. On 29 September 2009 I made orders, having concluded a defended hearing between the parties.  Nearly all of the issues between the parties had been agreed however, the question of the schooling of the children (private or public) was left to be determined.  Having considered the evidence and the argument I determined that the father’s orders sought were to be preferred.

2. The decision had financial implications for the parties and part of the determination required the husband to be responsible for the payment of school fees.  As a further assurance that the children would not have to change schools at a later time because the father could not meet the payment of school fees (which are considerable) the husband said his parents would make any payment which he could not meet.

3. When it came time to sign the orders in the matter I brought to the attention of the parties that I could not make an order in relation to the payment of school fees which was in effect a child support order. I accordingly sought undertakings from the husband to pay the school fees which could be lodged with the Court.

4. The husband has now provided undertakings by himself and each of his parents.  The undertakings are satisfactory to the Court.

5. An issue arose between the parties about the wording of a notation which the husband had added to the undertaking given by him.  The wife opposed the notation being included in any order or notation by the Court.  She also sought further wording for the husband’s undertaking.

6. Each party has provided written submissions.

7. I conclude that it is not necessary for the Court to note the “notation” appended to the husband’s undertaking.  I could not, by noting the “notation”, give any force or effect to the content thereof.  Matters of child support need to be determined by the Child Support Registrar and I would not, in the absence of the determination of an application made pursuant to the Child Support legislation seek to bind the Child Support Registrar.

8. The additional words sought to be added to the husband’s undertaking are, in my view, unnecessary.  It is a clear requirement of the husband to pay the school fees.  Whether he does that by the provision of his own funds or those of his parents is entirely a matter for himself.  Further, the orders provide for parties to be able to publish these orders to the S School and so the school will know to bring the occurrence of non payment of school fees to the attention of the husband’s parents should that be required.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  14 December 2009