HUBER & OVESEN (No.2)

[2019] FCCA 269

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUBER & OVESEN (No.2) [2019] FCCA 269

Catchwords:
FAMILY LAW – Interim parenting – school fees – where the child is attending a private school and school fees are in arrears – urgent application.

Applicant: MR HUBER

Respondent: MS OVESEN

File Number: SYC 4336 of 2012

Judgment of: Judge Kemp

Hearing date: 4 February 2019

Date of Last Submission: 4 February 2019

Delivered at: Sydney

Delivered on: 8 February 2019

REPRESENTATION

Applicant: Self-represented

Respondent: Self-represented

THE COURT ORDERS, PENDING FURTHER ORDER THAT:

1. By consent, all necessary requirements for the hearing of a child support departure application in terms of the child, [X] born … 2002, with respect to her school fees are, otherwise, dispensed with.

2. The parties do all things and sign all documents and authorities reasonably necessary for the monies held in a controlled monies account with A Bank being account number … 37 (“the Controlled Monies Account”) to be disbursed as follows:

   (a)$12,980.00 to Mr B of C Solicitors;

   (b)$14,850.00 to Mr D of E Superannuation.

   (c)$35,256.88 to F Ltd (being F School).

3. The wife’s application in a case filed 29 August 2018 (sealed on 3 September 2018) be, otherwise, dismissed.

4. The husband’s application in a case filed 21 December 2018 be, otherwise, dismissed.

5. The wife’s response to an application in a case filed 3 January 2019 be, otherwise, dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Huber & Ovesen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4336 of 2012

MR HUBER

Applicant

And

MS OVESEN

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has had some history and complexity. 

2. The Court is, currently, reserved with respect to its decision in relation to the property proceedings between the applicant husband and the respondent wife. 

3. Notwithstanding that the property proceedings are, currently, reserved, the husband has filed an application in a case on 21 December 2018 seeking various orders.  The first order that he seeks is the release of funds held in the Controlled Monies Account of $317,000.00.  Further, he seeks an order to release documents used in these proceedings as listed, being the affidavit of his auditor dated 18 October 2012, the affidavit of the wife’s auditor dated 10 April 2018 and his affidavit of 28 May 2018 for use in Court proceedings commenced by him in Court G against the H Bank and I Bank.  The husband, in fact, filed 2 affidavits dated 28 May 2018.  In those circumstances, the Court treated his application as relating to both of those affidavits. 

4. Accordingly, the Court, having heard from the wife that she has no objection to the release of the documents identified by the husband for the purposes of the said Court G proceedings authorised the release of those documents to the H Bank and I Bank and their lawyers in relation to the said Court G proceedings by way of an order made on 4 February 2019.

5. In support of the husband’s further application, he relied on his affidavits sworn on 20 December 2018 and 3 February 2019 (filed in Court).  The husband’s first mentioned affidavit raises his concerns in terms of the payment of school fees for the parties’ child, [X] born … 2002 (“[X]”), who commences at F School in Year 11 in 2019.  The husband acknowledged that there were some 3 terms of school fees unpaid, together with (or including) the current fees for term 1 of 2019.  His initial concern was that without the payment of school fees [X] would be unable to attend at that school.  The husband indicated today, however, that he no longer sought to proceed with his application (which was an oral one, given that it was not specifically referred to in his filed application) so far as the release of moneys for school fees was concerned, given that he understood [X] was now in attendance at the school. 

6. The respondent wife’s position is set out in terms of her response to the application in a case filed on 30 January 2019.  That responsive position sought orders for the Controlled Monies Account to be utilised to pay outstanding moneys to Mr D of E Superannuation, to Mr B of C Solicitors, to Mr J (“Mr J”) for the management of the Controlled Monies Account and for the remaining balance, after those orders had been effected, to be distributed as between the parties 70% to the wife and 30% to the husband. 

7. The Court notes that while the wife seeks that moneys be paid to the solicitor, Mr J, for the management of the Controlled Monies Account, given that Mr J is holding the moneys in trust pending further orders and there was no particularisation of any moneys owing to him, no order will be made, in that regard.

8. The wife relies on her affidavit sworn 3 January 2019 and filed on that date and her affidavit sworn 22 January 2019 and filed on that date. 

9. The Court received in terms of Exhibits “Court 3” and “Court 4” referred to in paragraph 12 below, evidence as to the moneys owing to Mr D of E Superannuation and Mr B of C Solicitors. 

10. The Court notes that the initial orders whereby those persons were appointed to assist the parties in compliance with their taxation obligations, namely, the Court’s orders of 10 January 2017 provided that the costs of such expertise was to be paid out of the Controlled Monies Account and the parties were permitted to access the funds in the Controlled Monies Account in order to effect payment for the costs of effecting compliance with those orders.

11. The wife also says that there is, currently, an outstanding application in a case filed by her on 29 August 2018 and sealed on 3 September 2018 which was the subject of the final hearing which also sought the release of moneys for the payment of [X]’s school fees.  Her application also sought payments to both herself and the husband of $10,000.00 and a restraint in terms of accessing or dealing with any fund or asset in the Ms Ovesen Fund (“Ms Ovesen Fund”), except for payments to the Australian Taxation Office (“ATO”) on Mr B’s authority.  The Court notes, in that regard, that the wife indicated today that all moneys had been paid to the ATO and that, therefore, there was no necessity for further payments. 

12. The Court has received a number of exhibits: Exhibit “Court 1” being an email from the parties’ adult child, Ms A Ovesen (“Ms A Ovsen”); Exhibit “Court 2” being a request by the parties for the Court to deal with the matter; Exhibit “Court 3” being a letter from E Superannuation dated 13 June 2018; and Exhibit “Court 4” being an invoice from C Solicitors dated 17 September 2018. 

13. The document being Exhibit “Court 1” was a plea from the parties’ adult daughter, Ms A Ovsen, to be able to become involved in some way to assist her parents resolve the outstanding issues for her sister’s education.  The wife indicated that Ms A Ovsen was, presently, overseas and had some health issues.  The husband indicated that Ms A Ovsen was potentially aligned to the wife.  The Court is of the view that she does not need to be involved in these proceedings, given its proposed orders.

14. The wife indicated that she had recently met with F School on 24 January 2019 for the purposes of ensuring that [X] was able to commence there in 2019 and to continue there.  She did so on the basis of representing to the school that the matter was going to be before the Court for some determination on today’s date, being 4 February 2019.  The Court was unclear as to the position concerning the school and directed that the parties confer with the duty solicitor for the purposes of approaching the school, so that the Court could obtain some direct and objective evidence. 

15. The duty solicitor was able to engage with the parties and the school bursar was contacted.  The school bursar being Mr K (“Mr K”).  The Court heard evidence from Mr K.  That evidence was to the following effect.  [X] has commenced Year 11 in 2019.  She has 2 years remaining of her high school education and she has been at F School since the beginning of 2017 in Year 9.  The school fees currently outstanding total $35,256.88.  Those fees are based on arrears of $26,047.88 together with the Term 1 fees of $9,209.00 for 2019. 

16. Mr K’s evidence was that as far as the school was concerned, it looked to both parties paying the fees.  There was an issue as to whether [X]’s enrolment form which had been completed, it would appear, by both parties, was provided on the basis that only the wife would be responsible for the fees.  That was the husband’s position.  Certainly, the exhibit attached to the wife’s affidavit filed 22 January 2019, attaches a tax invoice from F School addressed only to herself.  Mr K acknowledged that he had received correspondence from the husband in May and September 2018 indicating that the husband did not believe he was obligated to pay for any of the fees. 

17. Mr K indicated that he was unaware as to whether invoices were, however, separately sent to both the husband and the wife as separated parents. 

18. The wife’s position was that she had never signed any document with F School which made only her liable for the fees. 

19. Mr K’s, further, evidence was to the effect that this afternoon, being 4 February 2019, he was to meet with the school’s principal and that the matter involving [X]’s unpaid fees was likely to go to a finance committee meeting of the school on 13 February 2019.  Further, that if the fees, being the fees in arrears and Term 1 fees, were paid, then the next term fees – given that there are 4 terms in the year – would be rendered on 15 April 2019, with payment not due until 29 April 2019.

20. Both parties were given the opportunity of asking questions of Mr K.  The husband indicated at one point that if an agreement could not be reached or an accommodation made in respect of the term 1 fees then [X] should not attend the school because it was likely that when the property proceedings had been dealt with and the husband was then placed in some funds that he would be able to reach an accommodation with F School for [X] to return in Term 2 and for that accommodation to cover the final 2 years of her schooling.  The Court accepts that this would be, potentially, very upsetting and unsettling for the [X].

21. The husband spoke of a potential solution being a “renegotiated” payment plan.  Mr K made it clear that so far as the school was concerned, issues concerning payment plans and, indeed, whether [X] could obtain a bursary which could reduce the ongoing fees were matters which had to be determined down the track after relevant submissions were made and the school had the opportunity to consider the same and make a decision.  However, of critical importance was the issue as to whether the child could continue her schooling in F School as a result of the arreared fees and the unpaid Term 1 fees.

22. The husband continued his submissions on the basis that the Court would find that the wife had ample assets and moneys to meet the fees and that she was electing not to do so.  Further, that she had failed in her disclosure obligations in respect of her asset position.  The wife’s position was that she could no longer meet the fees and that the only source of payment was the Controlled Monies Account.  Certainly, the position of the husband was that from his perspective he had no funds left and the Controlled Monies Account would be the only source from which he could pay those fees. 

23. Again, the wife disputes the husband’s disclosure in terms of his obligations and further says that he has funds including shares in his superannuation, being the Mr Huber Fund (“Mr Huber Fund”), which have not been adequately disclosed or have been potentially transferred to a third party, without disclosure to her. 

24. Notwithstanding those competing positions, the Court has, as said, only property proceedings before it. 

25. There is an immense urgency in trying to resolve this matter from the parties’ perspectives, given that both wish [X]’s education to be clarified.  Accordingly, the Court received a consent position in terms of Exhibit “Court 2”.  That was to the following effect, namely; that the parties requested the Court deal with the matter; they noted that the effect of the orders sought by each was to bring about a child support departure where there was in place an administrative assessment; both acknowledged that neither had brought any formal departure application in respect of the said child support but sought to proceed by way of applications for the release of sufficient funds to pay for the school fees for [X] at F School, noting also that the wife had brought her own application in a case to similar effect; that there had been no service, as required, on the Child Support Agency and that neither party sought to make any formal submissions as to departure matters, save as to how the said fees could be paid out of the Controlled Monies Account and that the Court was requested to dispense with the need or requirement to make any other findings, in that regard. 

26. Save for the abovementioned disbursements from the Controlled Monies Account, both parties sought, orders which were in effect final in nature.  The Court cannot deal with those final orders today as that is a matter for final relief in terms of its reserved judgment.  The Court will however make orders for the disbursal out of the Controlled Monies Account of the moneys due to both Mr B and Mr D and to F Ltd (being F School) for the arrears of school fees and fees for Term 1 2019. 

27. The Court will not make any further orders in terms of ongoing school fees, at this stage, as ultimately that is a matter that the parties can take up with F School in terms of the discussions that the husband wishes to have with that school about bursaries and the like and there is now sufficient time for that to occur given the date likely for the next Term 2 school fees and the timing of the Court’s final decision in the matter.

28. Accordingly, the application in a case filed by the husband on 21 December 2018 is, otherwise, dismissed and the response to that said application in a case filed on 3 January 2019 is also dismissed. 

29. In those circumstances, the Court is of the view that upon orders being made today, the wife’s application in a case filed on 29 August 2018 and sealed on 3 September 2018, will also be dismissed.  

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Associate: 

Date:  8 February 2019