L and L
[2003] FMCAfam 223
•23 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & L | [2003] FMCAfam 223 |
| CHILD SUPPORT – Whether husband should pay education expenses, both past and future. Family Law Act 1975 (Cth), s.66L |
| Applicant: | S L |
| Respondent: | R M L |
| File No: | MLM 9572 of 2002 |
| Delivered on: | 23 June 2003 |
| Delivered at: | Melbourne |
| Hearing Dates: | 20 February & 7 March 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms Colla |
| Solicitors for the Applicant: | Moores Legal |
| Counsel for the Respondent: | Ms Stoikouska |
| Solicitors for the Respondent: | Landers & Rogers |
ORDERS
That pursuant to s.66L of the Family Law Act the husband pay maintenance to the wife for the maintenance of M W L (M) born
20 March 1984 until the completion of his existing course at H T or M University in the sum of $100 per week from the commencement of the first term in 2003.The husband pay to the wife the following sums for the maintenance
of M:(a)The sum of $2600 within seven days being maintenance for M from his 18th birthday to 30 December 2002.
(b)The cost of any necessary and reasonable upgrade of M's computer for the purposes of his existing tertiary course.
That within 14 days of the date of these orders the husband pay all fees now due to K C for A N L (A) born 3 October 1985 and pay her fees for the remainder of 2003 when they fall due and or reimburse the wife any fees paid by her.
In the event that A completes Year 11 and is able to commence Year 12 at K C in 2004, the husband to pay her fees as and when they fall due.
The husband pay to the wife within seven days a sum of $5500 in respect of her uniform, books and stationery.
The husband pay one half of A's medical, hospital and dental treatment not covered by Medicare and/or other private health insurance as and when requested by the wife to do so and upon presentation to him of all relevant accounts from the date of these orders.
The husband pay the school fees (after any deduction to which the wife is entitled) for M C L (M) born 26 August 1987 (approximately $6370) for the year 2003 at K C as and when they fall due.
the husband pay to the wife within seven days the sum of $450 in relation to books, stationery costs and uniforms for M at K C in 2003.
The payments made pursuant to orders (3) to (8) are made pursuant to s.124 of the Child Support (Assessment) Act 1989 and the child support so paid is not to be credited against the husband's liability under any relevant assessment.
The wife's applications dated 15 November 2002 and 19 December 2002 be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM9572 of 2002
| S L |
Applicant
And
| R M L |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two applications brought by the applicant (the wife) in this matter. The first is an application for adult child maintenance for the child M W L born 20 March 1984. M is aged 19. The wife seeks from the respondent (the husband) adult child maintenance to enable M to complete a three year undergraduate degree in information technology software course at H TAFE through which he hopes to transfer to
M University.
The second application is brought pursuant to the provisions of s.124 the Child Support (Assessment) Act 1989 in relation to the children
A N L born 3 October 1985 and M C L born 26 August 1987 by payment of their private education costs and other expenses. Those applications are opposed by the husband in part.
Background
The husband and wife married in October 1987 and separated on
13 April 1991. Prior to their separation each of the children attended the V P School in C N, an independent private school, and when secondary school later was reached later went to K C, B H. It is common ground that shortly after separation the parties concluded a property settlement. As to their financial arrangements in relation to child support thereafter, there was little agreement between the parties. The wife contends that she was the victim of violence at the hands of the husband throughout the marriage and that she feared him. She asserted that due to her fear she obtained an exemption from Centrelink not to have child support collected by the Child Support Agency and that even her consent to the property settlement was in large part brought about by the husband; violent conduct by trying to strangle her in front of the children after separation.
The wife asserted that the husband offered her $800 per month for the children despite the fact that the assessment of his liability under the administrative provisions of the Child Support (Assessment) Act (“the Act”) would have required him to pay $1341 per month. She asserts that notwithstanding the husband's offer he was tardy with his payments.
The children have continued to attend K C. M completed his secondary education in 2003 and commenced an information technology software development course at H TAFE in February 2003. M continues to attend K C.
A has been gravely ill for some time. She has significant psychiatric problems and was recently diagnosed as being depressed and having a borderline personality disorder. Her physical problems include being an unstable diabetic. She has spent a considerable deal of time in psychiatric hospitals in the last couple of years and in 2001 she spent 141 days in hospital. In 2002 she spent over 80 days and in the later part of the year was in the youth psychiatric section of M Hospital. She has made many attempts on her life. At the time of the hearing she was living in accommodation provided by the B B C. She pays for her rent and food and spends two or three days per week with the wife. She is living away from home because of the difficulties she posed in management for the wife and other children. The stresses on A have caused her to indulge in acts of self-mutilation such as wrist slashing, overdosing and trying to hang herself.
Because of her difficulties, poor attendance record at school, and her poor academic record, A wanted to change schools and have a new start in 2003. She wants to do well enough in her last two years of secondary school to obtain admission to a nursing degree course. The wife consulted the staff at the M P Hospital and K C and considered a number of schools which might be appropriate for A for 2003. K C was the school chosen and A has been enrolled in K C in 2003.
The wife's case
At the opening of her case the wife contended that:
a)She had been intimidated by the husband into accepting a private arrangement of child support at $800 per month which was significantly less than she would have received had there been an assessment collected by the Child Support Agency (the Agency);
b)That the payments of $800 per month were not made on time; and
c)As a result of the husband’s intimidatory behaviour the wife was precluded from seeking a departure from the provisions of child support by which she could have sought payment of private school fees.
The financial result, it was contended by the wife, was that she has borrowed significantly to meet the children's expenses and that the arrears of school fees which she has been unable to pay , and the loans that she has taken out during this period arose because the husband has not paid adequate child support.
Specifically, she sought the following.
For A:
a)All health costs not covered by health insurance;
b)School fees at K C for the year 2003 being $13,020;
c)Uniform, book and stationery costs at K C in 2003 of approximately $1100;
d)Fees for A at K C in 2002 of $6197; and
e)Uniforms, books and stationery costs at K C in 2002 of $500;
f)Arrears of fees to K C, (pre 2002) $3098.
M
a)School fees at K C in 2003, $6370;
b)Uniforms, books and stationery costs in 2003, $900;
c)Fees for K C in 2002, $6197;
d)Books and stationery in 2002, $500;
e)Arrears of school fees (pre 2002) $3098.
The wife also sought that child support pursuant to the provisions of the Act from 19 December 1991 to date be calculated and paid (after deductor of the sum of $800 per month which the wife asserted had been paid). Having regard to all these figures and the husband’s ongoing commitment she sought a lump sum of $70,000.
In support of these orders the wife relied upon s.117(2) of the Act that:
a)In the special circumstances of the case the application of the provisions of the Act relating to administrative assessment would result in an unjust and inequitable determination of the level of financial support because the costs of maintaining the children has been significantly effected by the children being educated in the manner expected by their parents; and
b)That in the special circumstances of the case the application of the provisions of the Act relating to administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided for A because she has grave life threatening health problems which have required significant expenditure by the mother; and
c)That the child support was not collected by the Child Support Agency, although assessed in 1991 because the mother was granted an exemption by Centrelink as a result of threats by the father and that the child support was not collected at a rate which was just or equitable.
M
Insofar as M's support in concerned, the wife relied upon s.66L of the Family Law Act that the father pay maintenance for M:
a)At the rate of $250 per week from 21 March 2002 until completion of his information technology course at H or M University such sum to be increased in accordance with CPI increases each year;
b)School fees for M due to K C for tuition in 2002 of $6197;
c)The cost of school books, stationery and incidentals in 2002 at $400; and
d)The cost of upgrading a computer and purchasing software books and stationery for M in 2003 – $2500.
The Husband’s case
The husband proposed to pay the following for the children:
A
a)To continue to pay family health cover;
b)To contribute to 50 per cent of her school fees in 2003 but with no admission that there is an ongoing need for payment.
M
c)No contribution towards school fees.
He will pay the current child support assessment for both children of $19,849 per annum ($381 per week) for the period 1 November 2002 to 2 October 2003 and for the period 3 October 2003 to 31 January 2004 (for M only) the annual sum of $13,233 or $254 per week.
M
In relation to M's maintenance, he conceded that he had not paid for M in the latter part of last year and that he would meet 26 weeks of arrears of $2600. In addition he agreed to pay for a necessary and reasonable upgrade of M's computer. Because M is entitled to Austudy of $95 per week and is capable of earning some income he opposed any order for payment of a weekly sum to M.
The husband contends that after separation he and the wife reached agreement and that in accordance with that agreement he has made regular monthly payments of $800 up until 2002 (when the wife obtained a child support assessment). In addition he contends that he has made other payments to the wife:
a)From 1991 to 1994 between $2000 and $3000 per annum;
b)From 1995 to 1996 between $3000 and $4000 per annum;
c)Between 1997 and 2000 between $6000 and $7000 per annum;
d)In 2001, $12,000; and
e)In 2002, $3800.
He contends that originally it was agreed he would pay $180 per week and that he would assist the wife with cash payments from time to time. Shortly after the periodic payment was increased to $200 per week by agreement.
He rejects the assertions by the wife that she was afraid to seek a child support assessment and contends that they reached the agreement that he would make regularly weekly payments (which he did) and additional cash payments which would be significantly greater than an assessment. For these reasons, he does not accept that he is responsible for any arrears of school fees, any ongoing school fees for M or any "arrears" of child support. He contends that it was never agreed that the children would attend private schools and that the wife enrolled them at private schools notwithstanding that he counselled her against it.
The evidence
There were many facts in dispute between the parties. Findings on many of these matters must be made.
Did the wife not seek to enforce the child support assessment because she was intimidated by the husband’s violence and did the husband make lump sum payments to the wife?
The wife prepared a summary based upon the husband's group certificates showing his salary and allowances from 1991 to 2002. She did a calculation of child support notionally payable based upon his assessable income compared to what he actually paid, leading to a conclusion that there was a short fall of $69,500 together with interest foregone of another $18,223. She produced a statement dated
17 December 1993 which she had made to Centrelink in which she advised them that as at 18 November 1993 her maintenance would be reduced from $190 to $150 per week.
She also produced a report of an interview from the Centrelink file dated 16 December 1991. The notes made as a result of her interview with Centrelink indicate that the wife had recently separated and was experiencing difficulties with their present contact. The file noted that she had sought legal advice and had asked the Child Support Agency to collect child support payments. The notes indicate that she complained that the husband had damaged the family home during the weekend of 7 and 8 December 1991 and the notes indicate:
“An unusual outburst S stated however client now believes - further child support action may provoke her former partner further and jeopardise family members.”
It appeared that following this she withdrew the child support request.
The summary recommendations on the file note:
“S's present situation as she outlined meets with consideration for temporary exemption from child support action. Some time allowed at this stage for family members to adjust to changed circumstances would be appropriate. The isolated incident which occurred (former partner threatening and damaging property) may be further stirred by child support action now.
The client expressed a fear of violence for and on behalf of the children and herself and in addition believes child support action now would jeopardise legal negotiations between partner and self.”
The child support assessment which was raised but then not collected at that time indicates that the monthly amount payable was $1341.25. The wife said in her evidence that at that time, that is 1991, she did not pursue the issue of child support by collecting the assessed amount because she was in fear of losing the children and in fear of physical violence by the husband. She said that in April 1991 (pre separation) he had tried to strangle her and that the children were there. She conceded there was no violence after 1991. She asserted that there was some emotional violence later by verbal abuse by the husband that she was not looking after A properly. The only physical violence was one incident in which the property referred to was damaged.
About one and a half years after separation the parties attended mediation at Dandenong and came to an agreement regarding contact. On 19 October 1993 contact orders were made as a result of mediation which provided for the husband to have contact each alternate weekend during the holidays and special days. The wife conceded that after a number of years at the husband's request he had one week at Christmas and one week in April. The arrangement between the parties was that the husband would collect the children from the wife's home at the commencement of the contact period and that she would collect them at the end. She conceded that coming to the door of each other's homes and collecting the children had been a feature for a number of years. She conceded that no other violent incident had occurred other than the property damage in 1993.
She asserted in her evidence that she was threatened at the time of property settlement that the husband would remove the children, then aged three, five and seven, unless she settled on his terms. She said that he told her she would never see the children again and she thought he would remove them. However, the parties reached agreement on property settlement which was signed in October 1991. Nevertheless, orders were not made until April 1992. She had legal representation at all relevant times. She conceded that although she had originally talked about two incidents, there was only one incident of physical violence either before or after separation in early 1991 when the husband tried to strangle her.
In 1992 she went to the Child Support Agency and complained that the payments had not been regular and asked them to collect the assessed amount of child support. When challenged about the apparent contradiction in her capacity to go to the Child Support Agency in 1992 given her alleged fear of him, she responded that she had –
come a long way
since the separation. She also indicated that the pressures of A and meeting the children's fees and expenses had not enabled her to have had –
space in my head
to do this earlier. The wife further asserted that in 2001 she asked the husband for $18,000 and he agreed to pay her half that sum. She conceded that in 2001 she received $9500 from him. However, she asserted that other than this sum apart from birthday presents, he paid nothing. When challenged, however, she conceded that there was a sum of money given to her via M. It was put to her that it was $3800. She said that she did not know how much it was but conceded that she had given it to K C.
In relation to the payments made by the husband to the wife in addition to the weekly sum I prefer the evidence of the husband in this respect. The husband said that the parties reached a private arrangement between them and he had no reason to believe what he paid was too little or unacceptable. He agreed to an increase from $180 to $200 per week and she requested money from him from time to time and he paid her in cash when he was asked. The $9500 in 2001 was paid to the school at her request. He said that he had made other cash payments to her beyond those mentioned in his affidavit but given the effluxion of time he did not have records for all of the payments. The sums however, he said, were significant.
He said that he initially started off giving her $180 per week and that it subsequently went up to $200 by agreement. When the children started primary school she told him she was having trouble with bills and she asked him for extra sums which he gave her. He said that she told him that she did not want her pension effected by payments. He said that there was animosity between them but there was no violence on his part and it was absurd to suggest that their property settlement or the contact orders they had were in any sense negotiated in an environment of intimidation.
He recalled that when A first started having difficulties he gave the wife $5000 in cash. He produced statements from the Commonwealth Bank which to the best of his recollection indicated payments that he had made directly to K C on 20 July 2001 $2000, on 9 April 2001 $2500, on 24 January 2001 $5000. He said that in 2001 the wife had phoned him and told him that she could not afford the children's schooling and would need to take them out of school. He talked to the children who were upset. He said that he spoke to her and said that he would have to do more overtime to be able to assist her further and that he would have to reduce his contact with the children to do overtime on a Saturday. At that time he was working nightshift on Friday and Saturday concluding Sunday at 1 pm. He went to work on Sunday evening so that he could provide some extra funds for the children's schooling. He stopped when the child support assessment was made in August/September 2002.
He said that he gave her money for schooling and wrote it on an envelope and asked M to give it to the wife. The envelope contained $3800. This was not long after he started doing extra overtime. He conceded that he had once been in an argument in which he had pulled the phone out of the socket but denied that there was any occasion on which he had tried to strangle the wife. He said that they did not get on for many years and had arguments where they both yelled at each other but that there was no verbal abuse, no threats and no damage to property save for the one incident with the phone. He said that they had argued for about seven years before they separated.
I do not accept the wife's evidence that she was intimidated by the husband or that the agreement that was reached between them was reached only as a result of intimidation. There are a number of facts which lead me to this conclusion: -
a)The wife conceded that there had only been one incident of violence and it occurred before separation. This is inconsistent with an assertion that she was intimidated subsequent to separation and in 1992 when property orders were finally made.
b)The wife had legal advice in relation to all of the negotiations regarding property settlement and intimidation by the husband in the course of those negotiations is simply not indicated.
c)The parties were able to attend mediation and reach agreement in relation to contact which was ultimately the subject of a consent order in 1993. This is inconsistent with the intimidation asserted by the wife.
d)Following separation, the contact put in place involved the parties going to each other's front door to collect the children at the commencement and conclusion of contact. Again, this is inconsistent with the wife's expressed fears of the husband.
e)Although the wife conceded that the husband had made one payment of $9500 her case was premised on the basis that she was receiving only $800 per month as a result of the husband's intimidation of her. Clearly, on her own evidence, this was not the case. At her request, the husband paid a significant sum towards school fees at K C of $9500. She conceded in cross-examination that money had been given to her in an envelope towards payment of school fees by M. The payments are not consistent with the picture of a man who had intimidated his wife into accepting only $800 per month. Indeed, the reverse is true. When the wife asked the husband to help her with expenses he did so and he did so in 2001 by working a nightshift, which meant that he was not able to see the children during that time. I find that the husband did make cash payments to the wife from time to time. I find that the arrangement reached between the parties was a mutually satisfactory one and that all of the dealings between the parties was inconsistent with the wife's version of intimidation.
f)I accept that in early years after separation the wife did not approach the husband for the sort of child support he might have been required to pay. However, I do not accept that it was because she was afraid to do so. It was more likely that the frustrations and difficulties that she was having with A simply made negotiation of these issues, which I accept may have been difficult for her, with the husband unpalatable and she did not therefore take up the issue. At one stage in her evidence the wife said:
“I have known all along he wasn't paying the correct amount but that she had not had the space in my head to do anything about it.”
This I understood to be a reference to the difficulties that she was encountering with A and the reticence on her part to have an argument with the husband about financial matters.
Was there an expectation that the children would attend private schools and/or any legitimate expectation on the part of the wife that the husband would pay their fees and expenses?
Although it was contended on behalf of the wife that there was an expectation that the children would be educated at private schools and ergo that the husband would contribute to the children's expenses, there was little evidence about this from the wife in her affidavit in support of her application sworn on 11 November 2002.
In par 4 she says:
“During the marriage it was agreed that the children would attend private schools. Each child attended the V P S in Croydon North, an independent private school, and, when secondary school age was reached, went to K C B H.”
In her evidence-in-chief the wife said that she had made the decision to send the children to K School and that she had not discussed with the husband where the children would go. She asserted, however, that his contribution of $9000 to their school fees in 2001 was essentially an implicit acceptance that the children should be educated at private schools.
When cross-examined the wife conceded that she had not discussed the children's enrolment with the husband and said that it was
presumed
that the children would have a private schooling for their secondary education. When asked how she thought that the fees could be afforded on $200 per week (or $180 as she was then receiving) she responded that at the only time the question of fees had come up was in 2001 when she asked the husband for money. She said that:
Prior to that I was managing from my mortgage.
This was a reference to the wife having drawn down on her mortgage to meet school fees. Further, she conceded that she had expected to go into more debt to meet the children's fees and had no expectation that the husband would meet them. Her request to him in 2001 came at a time when her financial position was such that she feared that the children could no longer attend K C and would have to leave.
The husband's evidence was that he was only aware the children had started at K C two weeks after their commencement there.
Despite the wife's initial position, in the end the evidence as to the expectation that the children would be privately schooled, and that the husband would pay for it was reasonably clear. In final submissions, the counsel for the wife submitted that as a result of the children attending private kindergarten and primary school it was reasonably foreseeable that they would go to a private school. She conceded the wife took responsibility for their enrolment but said that:
a)By allowing them to be enrolled the husband had acquiesced in them attending (and presumably it was contended thereby made himself liable for fees); and
b)That by making at least one payment to the school he thereby acknowledged a responsibility for an ongoing contribution.
I reject these submissions.
It was clear from the evidence that the wife took the responsibility for enrolling the children at private schools. The husband had expressed concern that the fees could not be afforded. Until 2001 the wife paid the fees herself. She acknowledged that she expected to pay the fees herself. The husband's assistance in payment of fees was made at a time when he was asked and when it appeared the children would have to live the schools they had then been attending for some time. The fact that he was prepared to contribute does not place on him a retrospective responsibility for the fees that had been paid by the wife.
In any event, there is a logical inconsistency in the wife's contentions. On the one hand, she contends that by virtue of her fear of the husband she accepted an amount of child support which was less than that to which she would have been entitled if the provisions of the Act had applied. That is the gravamen of her claim that the husband should be retrospectively required to make payments to her of support that he otherwise ought to have been paying. The contention that she was frightened to ask the husband for even the correct amount of child support is inconsistent with the contention that she had an expectation he would meet the school fees. But in any event, her clear evidence was she had no such expectation and anticipated that she would meet the school fees herself.
I accept the husband's evidence that he has made lump sum payments to the wife in the sum of at least $27,000 as set out by him in par 2 of his affidavit sworn 13 December 2002. This was in addition to the weekly sums that he was paying which I am satisfied he paid on a regular basis. There is no justification in my view for any requirement that in periods prior to this application the husband should be required to reimburse the wife any sums for what she asserts is child support foregone.
Similarly, I reject any claim that the husband should be required to pay school fees for past years when he did not ever accept financial responsibility for the children attending K C and the wife acknowledged that she accepted that responsibility herself.
However, the position in relation to the children's present schooling and circumstances is a separate matter as it raises different issues and needs to be considered.
The proper needs of the children
A
A has been in receipt of a disability pension of $186 per week but she is living in independent accommodation and spending two to three days per week with the wife. The wife pays for all her school related expenses, and all travel passes, and all medical bills and insurance, very significant expenses connected with A's hospital stays and ongoing specialist psychiatric treatment. Because A missed so much school in 2002 she did not achieve her VCE standard. Most of her friends were moving on from Year 11 to Year 12. A wants to complete her secondary education but there must continue to be some doubt about whether she will be able to do so. Nevertheless, the husband accepted that she should be given the opportunity. The issue was really the expense of the new school, K C, as it is more expensive than K C. The wife was challenged about the reason for the choice of this C in cross-examination. I accept her evidence that consideration to a number of schools was given by A, the staff at the Maroondah Hospital and the wife.
I accept the wife's evidence that A needs order and structure and also that it is important that A is content with the choice of school, otherwise the likelihood of her being able to complete her secondary education must be small. The wife relied upon the expertise and advice of those who were assisting A and in view of the difficulties with A
I am satisfied that the choice of K C was a reasonable choice in all the circumstances. It has small classes, a nurturing environment and nursing counsellors on site. A is seriously unwell and I am satisfied has special needs which will be met by her attending K C. Whether her illness enables her to attend to her studies remains to be seen but there was no issue between the parties that she should have the opportunity. The husband conceded that it was important that A liked the school and had a choice in it.
It is the case that the husband was not consulted about A's attendance at K C. However, this was largely because of the relationship between A and her father at that time. The decision was made by the wife in a responsible manner having regard to A's needs.
The estimated fees for A at K C are $3255 per term or $13,020 per annum. The cost of her estimated books, uniforms and stationery is approximately $1100, making a total of $14,120 being the cost of her school expenses in 2003. A will be required to repeat Year 11.
The wife is presently paying family health insurance of $192.35 per month which covers A. Medication costs approximately $50 per month.
M
M is in Year 10 and has three years left of schooling. He has attended K C for all of his secondary schooling to date. M struggles at school and I accept that K C have been caring and nurturing to him. The wife was concerned about how he would cope if he had to change schools. Both boys had a difficult year last year as A was living at home for much of the time. M passed his VCE but had a special exemption because of A. Undoubtedly, the position was difficult for the boys and depending upon how A fares in the next year or so, those difficulties potentially remain.
The husband contended that M's educational progress was not such that it could be found that educationally he could not fare equally well at another school. I accept that is the inference from the evidence to be drawn in relation to M, however his educational progress is only one aspect of his development and I accept the wife's evidence that the school are familiar with M's family history and A's problems and nurturing to M because of it.
The husband accepted that M would like to stay at K and that there would be pastoral benefits to him remaining there. His concern was whether that benefit was cost effective in view of the financial position of the parties. M's school fees at K C for 2003 are $6370; uniform costs total $600; and books and stationery $300, making a total of $7270 per annum.
M
M has commenced a course in information technology software development at Holmesglen TAFE. He wishes to transfer to Monash University if he gets the opportunity, a possibility which is available to students achieving a certain level. He receives a Youth Allowance of about $95 per week and has no other income. The enrolment was $345 at a concessional rate and the cost of upgrading a computer and purchasing software et cetera was $2500, making a total of $2845. In addition there are fees for books and stationery of approximately $500. Thus the total costs of M's educational expenses this year is $3345.
The wife has set out the necessary commitments for the children in her financial statement filed in November and in an application for adult child maintenance filed in December. She was not challenged about the amounts set out. The expenses for the children there do not include school fees and do not include education expenses for M or extra expenses for example, involved in running his car. The amount which the wife asserts she expends on the three children is $408 per week. She did not break this down into expenses for a particular child. A is spending about two thirds of her time living away from home and during this period she is in receipt of assistance. Although this pension should not be taken into account, it does in my view, reflect at least that A's expenses away from the home are being met by that pension and that therefore I should take into account her expenses in the home as being less than those attributable to the other two children. However, many of the household expenses are ongoing.
If I apportion the $408 which the wife asserts are the expenses for the children on a weekly basis and attribute 25 per cent of that to A, then her expenses would be $102 per week leaving $306 being the expenses of the other two children or $153 per week per child. In addition to the expenses set out therein, M has the expense of running a car and paying $10 board to his mother. He is however using his Youth Allowance for these expenses and the cost of some of his clothing. He was not working at the time of the hearing but he was seeking part time work in retail sales or packing or shelf stacking. His study commitments will only enable him to take on part time work for a few hours on Friday or on the weekend. His work hours have to fit in with his study. The wife considered that M probably had the capacity to earn about $100 per week.
I accept that M has the expense of running his car and clothing which is not set out in the wife's financial statement or at least not to the extent that M would obviously require. I will regard M's extra expenses as being met currently by his Youth Allowance and therefore not taken into account. To the extent that he earns an income, his Youth Allowance will be adjusted in any event and the expenses he says he has those listed by the wife I find would be able to be met by him from either his Youth Allowance or his earned income. I propose to take into account M's expenses in the household to the wife as being $153 per week. This sum of course does not include the cost of his education.
The wife's financial position
The wife's income consists of a sole parent's pension and education allowance of $183 per week, family payment allowance of $48 per week and salary before tax of $244 per week. In addition, her employment conditions make provision for an additional bonus payment based on performance which is assessed annually and paid in June last year she received $12,000. However this year she did not receive any performance bonus due to significant time away from work to support and care for A during her extended time in hospital and youth psychiatric facilities.
She is a part time administrator at a primary school. She works five days a week but has 10 weeks enforced leave without pay. I accept that she has had to take a great deal of time off due to A and that her present employer is sympathetic to these needs. Given the responsibilities to the children, particularly A, it would be unrealistic to expect that she could find a better paying position and hope to retain it. The relationship between A and her father has also meant that the wife has had the major responsibility for A's emotional support.
Section 117(7)(b)(2) of the Act requires me to disregard any entitlement of the wife to an income tested pension, allowance or benefit when considering her income and earning capacity. I must therefore take into account her income as being $244 gross per week.
The wife is the sole registered proprietor of property at D Street, B H N. The property has a value of $280,000 and a mortgage of $72,689. The wife has met the children's education expenses by increasing the mortgage. In addition, in 1997 she received a payment from the C C T of $22,000. This also went towards school fees. Following settlement with the husband, she sold the former matrimonial home which was too far away from K C and purchased her present residence which is closer to the school she had chosen for the children. She had to borrow about $50,000 to complete the purchase of the new home and expected that she would go into more debt to pay the school fees.
The school fees have thus been paid so far by increasing the mortgage, and application of the money received from the C C T and moneys paid by the husband for school fees upon request by the wife from time to time. The wife does not live in a de facto relationship, however she has a relationship with someone who has been prepared to assist her. Her borrowings are in fact more than $72,689. Her partner has deposited $60,000 into her mortgage account to reduce the interest but she is required to re-pay the $60,000 to him. She asserts, and I accept, that she is no longer able to borrow to meet the school fees. She owes $14,000 to K C and has another loan of approximately $18,000 from which she was able to buy a new car and help M with the purchase of his car.
The husband's financial position
The husband's child support assessment shows his taxable income for the year 2001/2002 as $85,256. The husband asserts that his current income is approximately $65,000. He is employed as a maintenance technician with B T and has been there for about 13 years. He suffers from some nerve deafness and has no hearing in his left ear and considerably reduced hearing in his right ear. He works in an environment with heavy machinery, however he has had this disability all his life. At present he does a standard 38 hours per week from 11 pm to 11 am (the nightshift). He has not asked to have his job changed although the heavy machinery impacts on his hearing. He asserted in cross-examination that he fixes machines and could not see any role that would reduce the noise level.
The wife's analysis of the husband's group certificates (exhibit W4) indicates his salary from 1991 to 2002. 2002 was the year of highest income. Between 1996 and 2001 the husband's income fluctuated between $67,000 and $78,000. It has not been consistent in each year. From 1996 onward he has earned the following:
·1996 – $73,310
·1997 – $67,070
·1998 – $67,070
·1999 – $69,473
·2000 – $76,652
·2001 – $73,390
·2002 – $86,408
In 2001/2002 the husband agreed to assist the wife with school fees and as a result he agreed to do overtime on Saturday to assist in payment of fees. This required him to cease his contact with the children on Saturdays. The husband is no longer doing the same amount of overtime although he has the capacity to overtime from time to time. I accept that his hearing is getting worse but nevertheless, as he himself indicates, while he remains in this job it seems to be an inevitable consequence.
Whilst the husband has been able to do overtime in the past it does not seem to me to be reasonable to expect that he should necessarily have to do overtime to the same extent as he was in 2001/2002 year. Nevertheless, he has demonstrated that over a period of about 10 years he has the capacity to increase his income if he wishes by doing overtime.
The husband has a property of a present value of $170,000. The property is unencumbered. The only liability he has is a loan to D L of $10,000. He has superannuation of approximately $39,500. He originally purchased the property in 1992 for $101,000. He had a mortgage of $50,000 which he paid out two or three years ago.
The husband is not responsible for the support of any other person. In addition, he has or had at the time of the hearing $11,000 in the C Bank and $5000 in the Bank of. He has T shares worth at least $5000. Between December and the date of hearing, he reduced the funds in the bank from $17,000 to $11,000 by paying house insurance, vehicle insurance, registrations and some renovations on the house. He has a Honda motor vehicle and an old 1992 Ford Falcon.
Are there special circumstances which would justify any departure?
A
I am satisfied that pursuant to s.117(2)(b)(i)(B) that in the special circumstances of the case the cost of maintaining A are significantly effected because of her special needs. In this case her special needs are her medical expenses such as are not covered by medical insurance, and her education needs. Whilst A is not necessarily being educated in a manner expected by her parents, her illness makes it important that she is encouraged to attend school and for the reasons I have already dealt with, the school selected is K C. Her fees will be $13,020 in 2003. In the end, the husband offered to pay 50 per cent of A's school fees this year without conceding that there was an ongoing need. The wife no longer has the capacity to meet the school fees. She has already exhausted her funds and her capacity to borrow. Other than selling the house which has only a modest equity, there is no way that she can meet the school fees.
The husband on the other hand, has the capacity both from income and assets. At the present time his income is $1246 per week. He has fixed commitments including his child support of $764 leaving a total of $482. Whilst he asserted that his other expenditure was $554, some of those amounts seem to me excessive. For example, the husband spends $40 per week on the children's pocket money and $40 on medical and dental, and $40 on entertainment and hobbies. He spends $25 per week on gifts. I am satisfied that the husband can at the moment live within his means and he has the capacity if he needs to, to increase this income by working other shifts and obtaining overtime.
He has no mortgage on the home at the moment and approximately $16,000 in the bank. I am sure that in no small part the fact that he was not paying greater child support from separation onwards contributed to his ability to pay off his mortgage and put him in a relatively sound financial position. That is not to say that he should now be required after 10 years to make greater payments or that he should be expected to retrospectively pay for education expenses which he did not agree to undertake. Nevertheless, his financial position now is in no small part to the fact that he was for a number of years paying a fairly modest amount of support for the children.
The wife has been able to meet the majority of the children’s expenses since separation. However, the present position is that she can no longer do so and at this stage in the children's lives, the husband will have to contribute more. In particular, he can afford to pay A's school fees this year and should do so by an immediate payment. That payment should be an immediate payment of first and second term fees and the third term fees when they fall due.
If A completes Year 11, he should also meet her school fees for Year 12 on the same basis.
The wife is presently paying for A's health cover. The husband has offered to pay for the cover and it would no doubt assist the wife if he were to do so, although given that she has to cover M as well that saving money might be somewhat illusory. A requires treatment from particular doctors and it would be unfortunate if by changing her medical cover that in some way were effected, it would seem to me to be best for her that the wife continues to pay the medical cover that she has and that the husband pays 50 per cent of the medical expenses for A which are not recouped from the wife's medical cover.
A will be required to have new books, uniforms and stationery this year. The husband should make a contribution of one half of the costs which I will fix at $5550.
M
As far as M is concerned, the husband has agreed to pay the $2600 for M's maintenance which ceased last year upon him turning 18 but before he finished his secondary schooling. Having regard to his commitments and his capacity to do some overtime, in my view, it would be appropriate for him to pay maintenance in the sum of $100 per week for M. Up until M turned 18 last year, the husband was supporting the three children and has the capacity to continue to provide for M's support. Although the wife may not be able to assist M to any great extent, he has a capacity to work and to contribute to his own support to the extent that it is not met by the husband's payment and given the other imperatives in this family, M has the opportunity to work and add to his income.
M needs assistance with a computer for the course that he is presently doing. The husband is prepared to pay for any necessary and reasonable upgrade of M's computer and I propose to order he should do so. In addition the arrears that he will be required to pay for M's support last year will assist M with his computer.
M
M has attended K C for his secondary education and on the evidence they provide pastoral care to him. It has been particularly helpful to him to have the assistance of K C as they are aware of the difficulties at home with A. However, that position has slightly changed since A is no longer living at home full time. In any event, I would expect that similar assistance with exams would be available from other schools if the necessity arose. The problem for this family is that although it would be desirable for M to attend K C, it is a matter of prioritising the needs of the children. The wife enrolled the children in private schools without the husband's agreement that he would contribute to the fees.
A is in a unique position in that it seems highly likely that her capacity to complete her secondary education depends upon her attendance at a school which would acceptable to her and which she is happy to attend. Whether she does so through to the end of Year 12 remains to be seen but she is presently at K C and the fees should be paid.
M is in a different position. Whilst it might be desirable for him to attend at K C I am not satisfied from the evidence that M could not complete his secondary schooling at a non-fee paying school were it necessary. The husband is paying child support for M at the assessed rate. It is important that he contributes to M's expenses and to A's fees but in the list of priorities for this family on the evidence, M's continuing attendance at K C comes after other priorities. It would be difficult and potentially damaging to his education to remove him in the middle of the year and therefore I propose to order the husband to meet M's school fees for the current year. I do not however propose to order him to meet them from the end of this year and if the wife is not able to do so then she will have the rest of the year to arrange for M to attend a school for which there will not be fees or to make some other arrangement with this school.
The husband should also contribute to half the cost of books and stationery for M in 2003 of $450. I am satisfied that M has special needs while he is to continue K C this year which brings him within s.117(2)(b)(i)(B) of the Act.
Arrears of school fees
There are arrears of school fees for the year 2002 and for previous years. Having found that there was no expectation that the husband would contribute to the support of the children at private schools and having heard the wife's evidence that she had always anticipated she would meet the expenses herself, I cannot see that it is just and equitable in any way to now require the husband to meet the arrears of school fees. In any event, he has contributed to the fees by giving lump sums to the wife or the school directly from time to time when he was asked to do so.
Are the orders just and equitable pursuant to s.117(4) and otherwise proper pursuant to s.117(5)?
I am satisfied the husband has the capacity, from his income, earning capacity and assets to meet the obligations I have determined, as well as the periodic child support as assessed. In view of my finding about the immediate special needs of A and M and the wife’s lack of ability to further contribute to school fees I find it is just and equitable in terms of s.117(4) of the Act for the husband to be responsible for these education and medical expenses
I am satisfied that the husband has the capacity to make these payments. He has funds in his bank account; he has the capacity to borrow against the house although I accept that he will have to meet repayments; and he has a capacity to do overtime which would assist him in making payments. This is a case in which those fees ought to be paid in addition to the child support the husband is paying.
The wife seeks that the school fees be paid in a lump sum. Division 5 of Part 7 of the Child Support (Assessment) Act enables the Court to make an order under s.124 of the Act other than in the form of periodic amounts paid to the carer. The school fees, incidentals and A's health care expenses should be paid to the wife and in addition to any administrative assessment of child support. They are not to be credited against the husband's liability under any relevant assessment.
As far as M's payment is concerned, I am satisfied in terms of the Family Law Act that the husband should be making a contribution to M's maintenance.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 19 June 2003
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