Knowles and Green

[2016] FamCA 1008

FAMILY COURT OF AUSTRALIA

KNOWLES & GREEN [2016] FamCA 1008

FAMILY LAW – Enforcement and costs

APPLICANT: Ms Knowles

RESPONDENT: Mr Green

FILE NUMBER: MLC 1172 of 2007

DATE DELIVERED: 8 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1.The husband pay to the mother by way of arrears owing under the Child Support Agreement dated 9 August 2006 and registered on 7 May 2007 and interest thereon fixed in the sum of $6,125.05 such payment to be made within 7 days into the mother’s account no. BSB … Account No. ...

2.The evidence given by the mother and the father this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

3.My reasons for decision this day be transcribed and when settled a copy be sent to each of the parties and the original be placed on the Court file.

4.The Application in a Case of the wife filed on 29 August 2016 be and is hereby otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Knowles & Green 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 1172 of 2007

Ms Knowles

Applicant

And

Mr Green

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me in the judicial duty list. It is the return date of the wife’s amended enforcement application in which she seeks moneys owing to her by the father pursuant to paragraph 1 of the Order made on 7 October 2015 (“the Order”). The Order quantified an amount of arrears owing under a child support agreement entered into between the parties on or about 7 May 2007 and required payment of $15,000 in five equal instalments on dates specified therein, into an account described therein. It is the wife’s case that the husband has failed or neglected to pay some $5,750 under the Order, and she claims those moneys, together with interest thereon.

2. As mentioned, this matter comes before me in a busy duty list. I will order a transcript of the evidence given by the mother and the father in the course of these proceedings so I do not repeat it in these reasons.

3. The mother represents herself today, as does the father. The mother is employed as a senior manager. The father is employed in a professional capacity on his own account. He asked to be excused from attending court yesterday because he was working. That indulgence was extended to him.

4. Essentially, the dispute is that the father contends that he has paid $6,000 to the mother in recent times, that being the amount that he was required to pay by instalments due on 21 January 2016 and 22 February 2016 in accordance with the Order.

5. The mother concedes that, referable to the attendance of the parties’ daughter, Y, at B School, the father has paid several instalments to B School, totalling some $5,671.50. The mother says, however, that they are school fees payable to the school and not payments in lieu of or on account of her entitlement under the Order. The father says that those are payments which ought to be offset against his liability for payments owing pursuant to the Order, and, in particular, those owing on 21 January 2016 and 22 February 2016.

6. The parties entered into the Child-Support Agreement (“the Agreement”), which I have had the experience of seeing earlier in 2015 when I made the Order. It is an unusual agreement. It appears as Annexure “A” to the mother’s affidavit sworn on 3 October 2016.

7. I do not accept the contention of the father that any payments made by him to or intended to be for B School are offset against his liability under paragraph 1 of the Order. There are two distinct streams of liability that the father has; one is under the Order and the other is under the Agreement.

8. In terms of his liability under the Order, the father has attended court today without the most fundamental of documents which would be relevant to him presenting his case. He has not brought with him a copy of the mother’s Amended Application, nor a copy of relevant financial documents, including a Statement of Financial Circumstances which he was, pursuant to the rules of court, required to file not less than seven days prior to this hearing.

9. The father originally sought an adjournment of the hearing today. However, when pressed, he said the purpose of his adjournment was so that he could put on a brief affidavit of the facts upon which he relied. I invited him to go into the witness box and give evidence, which he has.

10. The father’s liability under the Agreement is not capable of being precisely quantified. That is because part of the obligations of the father to make a contribution towards the expenses referred to in paragraph 4.2 of the Agreement which are expenses for clothing, medical, dental therapy, child care, out-of-school hours care, health insurance, kindergarten, agreed school expenses, fees for agreed extracurricular activities and other agreed costs with respect to the children are calculable in proportions referable to the respective incomes of the mother and the father. Income is determinable by income tax assets.

11. Paragraph 4.1 of the Agreement requires the parties to “exchange copies of their respective income tax assessments for the previous year ended 30 June by 31 March in each year”. Accordingly, the father should, by 31 March 2016, have provided the mother with a copy of his income tax assessment for the previous financial year ended 30 June 2015. He failed or neglected to do so. He did not lodge his income tax return until much later than 31 March 2016; I understand it was lodged sometime in October 2016. The father’s evidence is that he does not yet have an income tax assessment.

12. The father also failed or neglected to bring to court a copy of the income tax return which he filed, or caused to be filed on his behalf. He did mention it was prepared by somebody else. It is elemental to assume that a calculation of income tax would have been made at that time and his taxable income estimated.

13. Paragraph 4.2 of the Agreement provides that the father will pay 25 per cent of school fees and school uniform expenses for the children. The husband contends that an amount equivalent to 50 per cent of school fees has been extracted from him by “blackmail”. That is not a light-hearted assertion. The father is a lawyer who practises in the State of Victoria. He says that the mother presented him with an unwarranted demand, with menace, and, therefore, she blackmailed him into paying money. I do not accept his submissions in that respect.

14. The facts appear to be that, last year, in anticipation of the parties’ daughter going to school, the mother made application to one school, which was not accepted. The mother then discussed with the father what alternative school Y could attend.

15. The parties’ son, X, is in year 10 at C School, which is a non-fee-paying school, which charges approximately $1,000 to $1,500 by way of fees. Upon discussing whether C School would be appropriate for Y, the father says that the mother said that it was an inappropriate school, and he agreed. The father then suggested B School in Suburb D. The mother said that the she would proceed with enrolling Y at B School (which is a fee-paying school) if, and only if, the father paid one-half of the costs of her tuition at that school. The father then proceeded to do so by making the instalments to which I have earlier referred, and which, I understand, have totalled, to date, $5,671.50.

16. I do not find that to be blackmail. I also do not find that the father’s payments should be a set-off against his liability under the Order.

17. In any event, on my roughest calculations of the amount owing by the husband under the Agreement, on the terms most favourable to him, it seems to me that he has still underpaid the mother on the amounts that he owes pursuant to paragraph 4 of the Agreement, without any regard whatsoever for the moneys owing under the Order.

18. After failing to exchange of income tax assessment, the father apparently offered the mother a contribution based on an income amount for himself of $120,000 in the last completed financial year. His previous income had been in the vicinity of $145,000 to $150,000 (according to the evidence of the mother). The mother refused to take an estimate of $120,000 and requested his income tax assessment per the Agreement, which, as I have already indicated, has not been forthcoming. 

19. However, even if the father does have a taxable income of $120,000 in the last completed financial year, the wife calculates that his liability for all of the expenses which I have referred to above at paragraph [10] hereof would equate to 40 per cent.

20. Doing the best I can with the figures provided by the wife, it seems to me that by way of all of the extra expenses for the children, the father would have had to pay 40 per cent of $6,850.40 which I calculate is $2,740. The father would have had to have paid 25 per cent of X’s school fees and uniforms at C School which amounted respectively to $256.25 and $125 respectively. That’s a total of $3,121.25.

21. In addition, the father would have had to pay under the Agreement 25 per cent of the school fees for Y to date (which fees have been $11,343) and his 25 per cent share would have been $2835.75 plus 40 per cent of her uniform costs which would have been $580 (her totalled uniform costs were estimated by the wife to be $1450).

22. The father’s liability, therefore, under paragraph 4 of the Agreement is some $6,537 of which I understand he has made a payment of $5671.50. But I stress again that I do not regard that payment as being on account of these fees. It does show, however, that even the father’s argument taken to its conclusion and in its most favourable light does not support the position that he takes.

23. I am satisfied that the father has paid no moneys on account of the $3,000 due on 22 February 2016 under the Order. I am further satisfied that of the $3,000 which was due on 21 January 2016, he has paid only $225, and, therefore, there is $2,775 outstanding in respect of that payment. Interest should be calculated on those amounts. I mention that my calculation of the amounts due have been on the basis of the mother’s evidence which was uncontested in that respect. It does seem to me that she has been somewhat lenient because she makes no claim for interest in relation to the other payments which were not made.

24. The mother is clearly under the impression that when she discussed the enrolment of Y at B School and agreed to the father’s choice of school, he agreed to pay one-half that the Agreement was, effectively, varied. It may be necessary for the mother to take proceedings to obtain a variation of child support in a formal sense lest she in the future encounter difficulties in recovering against that. It will be proper for her to rely upon the evidence that each party gave today in relation to the basis upon which the child was enrolled in that school.

25. The father says he has the money to pay the instalments under the Order. He also owes the mother monies under the Agreement but they are not quantifiable until he has provided his tax assessment.

26. For the above reasons, I make the Order set out at the commencement of these reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 November 2016.

Legal Associate:

Date: 25 November 2016