H and K
[2002] FMCAfam 268
•28 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & K | [2002] FMCAfam 268 |
| FAMILY LAW – Maintenance – interpretation of maintenance agreement – agreement to pay all school tuition includes drum lessons conducted at the school and the subject of the child’s school report – parole evidence rule – no exemption for agreements under Family Law Act 1975 (Cth). |
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-82) 149 CLR 33
Cabell v Markham 148 F 2d 737 at 739 (2nd Cir, 1945)
Muin v Refugee ReviewTribunal & Ors [2002] HCA 30
| Applicant: | LCH |
| Respondent: | MJK |
| File No: | ZA 3057 of 2002 |
| Delivered on: | 28 August 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 13 August 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| For the Respondent: | Respondent in person |
ORDERS
The respondent pay the applicant the sum of $545.00 within 14 days of the date of this order.
The respondent reimburse the applicant for the fees of a process server within 14 days of being provided with a copy of the invoice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ZA 3057 of 2002
| LCH |
Applicant
And
| MJK |
Respondent
REASONS FOR JUDGMENT
The applicant brings these proceedings for enforcement of an order made by consent in the Family Court of Australia on 5 September 2001 pursuant to Order 33, rule 3 of the Family Court Rules. That order provides for a person who is the beneficiary of a maintenance order to enforce the same by issuing an application in Form 46 of the Family Law Act 1975 (Cth) forms requiring the person alleged to be in default to appear at Court to be examined on all matters relating to the alleged failure to comply. In this case the applicant wife alleges that the respondent husband was in breach of the agreement when he:
a)Declined to pay certain fees for drum tuition for his son; and
b)Paid certain fees for drum tuition but deducted the amount of those fees from maintenance payments due to the applicant.
The dispute revolves around the interpretation of the maintenance agreement, the relevant extract of which is in the following terms:
“UPON APPLICATION by the above named parties, Mr Lindsay of counsel appearing for the wife and Ms Ross of counsel appearing for the husband
BY CONSENT IT IS ORDERED:-
1. That the husband do pay the wife child maintenance for [the son] … in the sum of ONE HUNDRED AND SEVENTY FIVE DOLLARS ($175.00) per week commencing on the 5th of September 2001, the first payment to be made within seven (7) days and fortnightly thereafter and the said payments to be made to the account of the wife with the [name of bank and account number] such payment to be made within seven (7) days of this Order and in addition thereto the expenses set forth in the schedule.
2. …
3. …
4. …
SCHEDULE
A. All school tuition fees
B. All school book fees
C. The maintenance of the existing level of medical benefits coverage
The applicant filed an affidavit dated 29 April 2002. The respondent filed an affidavit dated 3 June 2002. The findings of fact which I make from those affidavits are that:
i)At all relevant times the boy attended a private school in Adelaide;
ii)The school offered, and the boy took, a single studies music program;
iii)The boy’s area of study was percussion (the drums);
iv)The boy was taught by a Mr V who was employed in the Music Department of the school;
v)Tuition took place during school hours, upon school premises;
vi)The subject was included in the boy’s curriculum and a report upon his progress was contained within the normal school semester reports;
vii)Mr V was paid directly by the parents of any children whom he taught in this manner;
viii)An unknown percentage of the payment received by Mr V was paid by him to the school;
ix)Mr V made his own arrangements for the collection of the fees.
The applicant submits that the reasonable interpretation of the maintenance agreement set out above would include these fees as they are “school tuition fees”. The respondent argues that these fees are not school tuition fees as the bill was not rendered by the school and as the report form annexed to the applicant’s affidavit dealing with percussion states the following:
“Your son is taught under a private arrangement by a visiting teacher in the Single Studies Music Program.”
The respondent sought to make submissions about the matters which he took into consideration when he entered into the maintenance agreement. Although a barrister, he did not provide me with any authority which would suggest that the parole evidence rule as discussed by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-82) 149 CLR 337 per Mason J at 347-353 is not applicable to the interpretation of a maintenance agreement in the form set out above. I have found no such authority and I shall proceed on the basis that the rule applies. The terms of the order are clear and my duty is to interpret them.
Ever mindful of the strictures of Learned Hand J that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary” (Cabell v Markham 148 F 2d 737 at 739 (2nd Cir, 1945) quoted by McHugh J in Muin v Refugee ReviewTribunal & Ors [2002] HCA 30 at [104]) I considered the definition of “tuition” in the Oxford English Dictionary (2nd Ed.). The word is there defined as:
“The action or business of teaching a pupil or pupils.”
In the agreement the noun “tuition” is qualified by the word “school” and so any tuition provided to the son out of school and not connected with school would be excluded. I am of the view that any tuition carried on at the school under the aegis of a subject taught at the school and made the subject of a semester report constitutes “school tuition”. I do not think that it matters how the charge for this tuition is levied. It seems to me that this tuition is embraced by the school which takes educational responsibility for it. That, to me, is implied by the subject being offered and being reported on. The fact that different directions are made for payment for something which takes place entirely within the confines of the school does not detract from this finding.
It follows that the obligation to pay the fees for percussion lessons to Mr V belongs to the respondent. His action in not paying one set of such fees and in deducting from the maintenance otherwise due the value of another set of those fees was an action in breach of the agreement.
I order that the respondent pay to the applicant the sum of $545.00 within 14 days of the date of this order. The parties were self-represented. I make no order as to costs. I order that the respondent reimburse the applicant for the fees of a process server within 14 days of being provided with a copy of the invoice.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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