Kerrigan and Janes (No. 2)

[2018] FamCA 329

FAMILY COURT OF AUSTRALIA

KERRIGAN & JANES (NO. 2) [2018] FamCA 329

FAMILY LAW – PROPERTY- Child support departure order – order made that the father pay the child’s psychological counselling costs for a specified counsellor

Family Law Act 1975 (Cth)

APPLICANT: Ms Kerrigan

RESPONDENT: Mr Janes

FILE NUMBER: MLC 2591 of 2016

DATE DELIVERED: 16 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 22 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Berger Kordos

Orders

1. That pursuant to section 116 of the Child Support (Assessment) Act 1989 there be a further departure from the administrative assessment of child support for the period ending 31 December 2018.

2. In addition to the child support payable by the father pursuant to paragraph 1 of the orders made 22 March 2018 during the calendar year ending 31 December 2018 the father pay the out of pocket expenses for the child’s attendance upon Ms Q for counselling.

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 Kerrigan & Janes (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 2591  of 2016

Ms Kerrigan

Applicant

And

Mr Janes

Respondent

REASONS FOR JUDGMENT

1. The father and mother in this case are aged 46 and 47 years respectively. They commenced cohabitation in 2003 and were married in 2004. They separated in September 2015. R, who is 12 years of age, is their only child.  Pursuant to the final parenting orders, R lives with the mother and spends time with the father. 

2. On 21 November 2017 I made final parenting orders by consent. Paragraph 11 of those orders provided as follows:

   That [R] continue to attend upon [Ms Q], psychologist, for supportive counselling to assist [R] with her anxiety engendered by her experienced abuse trauma.

3. On 22 March 2017 I made orders by consent departing from the child support assessment. Those orders provided inter alia as follows:   

   That pursuant to section 116 of the Child Support (Assessment) Act 1989, during the 2018 calendar year the Father pay child support in respect to [R] as follows:

   a)periodic child support in the sum assessed by the Department of Human Services (Child Support) or in the sum of $417 per week (whichever is greater);

   b)secondary school education costs at [S School], tuition fees and levies, camps/excursions, books and stationery, as invoiced and/or required by the school;

   c)school-related, agreed extra-curricular activities;

   d)private health insurance premiums at the current level of cover; and

   e)agreed out of pocket medical, dental, orthodontic, optometry, psychological and pharmaceutical expenses.

4. I otherwise reserved the question of the payment of Ms Q’s fees to a date to be fixed for judgment. This was because although the orders provided for the father to pay agreed out of pocket psychological expenses for the child, there was an outstanding issue with respect to whether or not the father should be required to pay for the child’s attendance upon Ms Q as envisaged by the parenting orders.

5. Counsel for the father submitted that the father, as referred to in his trial affidavits, objected to the child continuing to attend upon Ms Q and notwithstanding that he had consented to the order, maintained that objection, it being his case that if the mother wanted the child to attend upon Ms Q, she should pay for her to do so. That in so far as the orders require the parties to agree upon the child attending a particular psychologist for treatment the father does not agree to Ms Q and therefore submits he should not be required to pay.

6. Counsel for the mother submitted that in circumstances where the father has consented to the child continuing to attend upon Ms Q, he cannot now resist paying for any out of pocket expenses arising from those attendances on the grounds that there has been no agreement.

7. The parties have already agreed and consented to orders that there should be a departure from the assessment. The only question the Court is being asked to determine is whether that departure extends to payment of Ms Q’s fees. The argument in this case was not put on the basis of the parties’ respective capacity to pay and in these circumstances, neither party made submissions with respect to there being grounds for a departure, whether it would be just and equitable to make the order sought by the wife or proper to make that order. Their respective cases were put on the basis of there being consent to a departure if it was determined that the father should be required to pay the out of pocket expenses for Ms Q.  

8. In any event I am satisfied that there were grounds for the departure to which the parties consented and that the orders they agreed upon were just, equitable and proper orders for the Court to make. In my view, that is similarly the case with respect to the order the wife seeks that the husband pay Ms Q’s fees.  

9. In so far as the orders with respect to the payment of child support require that the parties reach agreement, I am satisfied that the parenting orders do just that with respect to the child attending upon Ms Q and in all of the circumstances, I propose to make a further order departing from the assessment so as to include payment of Ms Q’s fees for the purposes of the child continuing therapy as agreed by the parties and as embodied in those parenting orders.

10. As with the departure order agreed upon by the parties this will similarly remain in force until the end of the 2018 calendar year.    

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 May 2018

Associate: 

Date:  16 May 2018