M and M
[2000] FMCAfam 75
•28 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2000] FMCA fam 75 |
| COSTS – Circumstances justifying order CHILD SUPPORT – Enforcement |
| Applicant: | A M |
| Respondent: | D J M |
| File No: | ZM 3022 of 2000 |
| Delivered on: | 28 November 2000 |
| Delivered at: | Melbourne |
| Hearing Date: | 31 October 2000 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Mawson |
| Solicitors for the Applicant: | Stedman Cameron |
| Counsel for the Respondent: | Mr Fookes |
| Solicitors for the Respondent: | Clancy & Triado |
ORDERS
THAT the wife’s costs fixed in the sum of $1,200.00 by order of
18 August 2000 be paid by the husband to the wife’s solicitors within 30 days.THAT the Form 63 Application of the husband filed on 17 August 2000 be dismissed.
Certify.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM3022 of 2000
| A M |
Applicant
And
| D J M |
Respondent
REASONS FOR JUDGMENT
Transfer
This matter came before the Federal Magistrates Court on the 18 August 2000, having been transferred by the Family Court of Australia for this Court to hear and determine the wife’s Form 46 Enforcement Summons filed the 27 July 2000 and the husband’s Form 63 Application filed the
17 August 2000 together with his Form 3 Application filed the 17 August 2000.
Orders by consent
An Order was made on the 18 August 2000 by consent such that the husband pay a sum of $4,130 to the student account department of M College by 4.00pm on the 25 August 2000 and that otherwise the further hearing of the Form 46 Enforcement Summons be adjourned. The wife’s’ costs were fixed in the sum of $1,200 and the question of payment by the husband was reserved and is a matter to be determined by me.
The husband’s application
The husband relied upon his Form 63 Application filed the 17 August 2000 together with his Form 3 Application filed the 17 August 2000. In support, the husband relied upon his Statement of Financial Circumstances filed the 17 August 2000; his Affidavit filed 17 August 2000 and a further Affidavit filed the 27 October 2000. The husband abandoned his Form 3 Application as it became unnecessary given the hearing of the Form 63 Application.
The wife relied upon her Form 46 Enforcement Summons filed the
27 July 2000 together with an Affidavit in support filed the same date, and her Statement of Financial Circumstances filed the 31 October 2000. The Enforcement Summons had been dealt with on the earlier occasion but the question of the payment of the wife’s costs remained outstanding.
Background
The husband was born on the 20 April 1953 and he is aged 47 years. The wife was born on the 27 February 1956 and she is aged 44 years. The parties married on the 21 January 1977 and separated on the
16 March 1997 after a marriage of some 20 years duration. A Decree Nisi of Dissolution of Marriage was granted on the 2 March 1999. The wife remains engaged in home duties and the husband is a self-employed engineer. He is a Company Director of IQC (I Q C) Pty Ltd. The wife resides in B S and the husband in E.There are two children of the parties marriage, namely K J M born 18 November 1984 aged l6 years and L D M born on l7 June 1988 and he is aged 12 years. K is in Year 10 at M College and L is in grade 6 at L Primary School. It is intended by the parties that L attend Y V G School next year for his secondary education. His father has paid a deposit in relation to his proposed attendance.
Final property orders were entered into between the parties on the
18 November 1998. A child support agreement was signed by the husband on the 23 August 1998, by the wife on the 18 November 1998 and registered on the 13 January 1999. The husband was to pay for each of the children of the marriage the sum of $100 per week by way of periodic payments of child support, together with any CPI increases. Currently the husband’s liability is in the sum of $104.38 per week per child. This is $904.67 per month. In addition, the husband is to make payments in a form other than by periodic amounts. He pays and/or will pay the private school fees for the children’s attendances at M College and Y V G School and all books and uniform expenses. Furthermore, the husband is to keep the children covered by private health insurance and he is to pay dental insurance costs. With respect to the latter I note the agreement signed by the parties referred to dental insurance/costs but in any event the husband is paying all dental costs including $3,800.00 orthodontic treatment for K at the present time. The husband has not regularly made payments of child support in accordance with the agreement and in April, May and June 2000 made a monthly payment to the wife of $500 in respect of both children. He has made other small periodic payments but as at 11 September 2000 his arrears of period payments totalled $10,846.66 including penalties. He negotiated with the Child Support Agency and paid an agreed amount of $9,610.66 by credit card advance on 19 September 2000 to avoid enforcement proceedings issuing.In addition to those matters in relation of which the husband is required to make payment pursuant to the child support agreement, it is agreed between the parties the husband has voluntarily paid the following expenses:
a)The wife’s medical insurance;
b)Tennis and piano lessons for K and a trip for her to the U.S.A. in December 2000;
c)L’s guitar lessons.
It was also conceded with respect to the Enforcement Summons issued by the wife on the 27 July 2000 that the wife was not competent to bring an arrears of periodic payments of child support application. She could however bring an Enforcement Summons with respect to the question of outstanding school fees for K at M College.
Reserved costs
Prior to issuing the wife had approached the husband as to his disregard of the terms of the Child Support Agreement, in particular with respect to periodic payments. The husband instructed his Solicitors to respond, which they did by letter of 30 June 2000 wherein no mention was made of outstanding school fees at M College nor any proposal the husband was going to make to the school for payment of outstanding fees.
In a climate of accruing arrears on the periodic payments, the wife telephoned M College and queried the school as to the status of the payment of the school fees. She was told that as at 26 July 2000 the husband was in arrears with his payments in the sum of $8,330.00. The wife issued proceedings the following day but it was not until a letter dated 17 August 2000 was forwarded to the wife’s solicitors and annexed to the husband’s affidavit of same date that the wife became aware of the husband’s payment of one half of the arrears in the interim. On 18 August 2000 and whilst at Court, the husband proposed the payment of the balance.
The husband gave evidence that he was in arrears of school fee payments in 1999 but eventually paid them – that he would have done so this year. The husband puts his case that as a result of financial difficulty he falls into arrears. I am inclined to the view, having heard the husband’s evidence and observed him in the witness box, that his modus operandi is to gain time for payments due (always late and a saving to him) to the wife and the school.
The wife was successful in relation to this part of her Summons application and she did not pursue the other parts. The Court hearing could have been avoided if the husband had notified the wife of his part payment and his proposal for a timely payment of the balance. He did not so inform her thereby putting her to unnecessary expense.
The husband was in breach. He admits he did not keep the wife informed of his payment proposals and therefore her Enforcement Proceedings were properly issued and continued. I do not find that further costs were occasioned by that part of her application which was otherwise outside the Court’s jurisdiction.
I propose to order that the wife’s costs in the fixed sum of $1,200.00 be paid by the husband within 30 days.
Form 63 application
The husband sought that the Child Support Agreement between the parties be varied as to the periodic amount payable such that the husband’s current liability decrease from $904.63 per month to $400.00 per month (in total) until December 2001 conditional upon IQC obtaining a Project.
In the running of the matter the husband increased the sum which he was willing to pay to the sum of $675.00 per month and for a period of 8 months whereupon he hoped to be in a position to revert to the earlier agreed amount. The difference between the parties was thus -
a)$904.63 less $675.00 = $229.63;
b)$229.63 x 8 = $1,837.04.
The parties were unable to reach further agreement.
The wife’s evidence was that the husband is living a comfortable lifestyle and that he pays those expenses which he is not obliged to pay rather than meeting his entire obligation under the Child Support Agreement. Certainly the husband’s own evidence is that he pays L’s guitar lessons being payments “which I (he) desire to pay” and that he has been willing to pay for a trip to the U.S.A. for the parties daughter because he was of the view that the trip was “very important” for his daughter. Further he deposed to “purchasing clothes and shoes for my children as their mother was not meeting their needs”. Of course, he was not providing her with regular payments of periodic support.
The onus is on the husband to show that he can no longer comply with the terms of the Child Support Agreement. It is difficult to see how he can justify the payment of a trip the U.S.A. for K and not regular payments to the wife. He presented as a father who is committed to his children and making provision for them but one who likes to do so by direct payment rather than regular payments to the residence parent. When the wife made demands upon him for the payment of arrears he advised that he was agreeable to paying all arrears from either the tax return he was to receive or the sale of Level 12, 68 O Street C in the State of Victoria, whichever first occurs. At the time of hearing neither had occurred and nor did it appear likely that either was imminent. The husband had offered C for sale as two units for a purchase price of $730,000.00 but considerable expenditure and work was still required to convert the property into two units. However, the wife requires ongoing periodic payments in the interim.
The husband then withdrew that offer as a result of the litigation proceeding.
The husband’s evidence is that he has only been able to pay the school fees and arrears by use of a credit facility. Not doubt his taxation return will assist in his reduction/eradication of that debt. The husband uses his business credit card for numerous expenses and it would be fair to say it is a ‘usual’ means of payment for him. He agreed in evidence that various expenses were drawn down on the Company account in favour of his own personal creditors (e.g. legal costs of $1,442.00 and $440.00; Nike shoes and clothing for the children; child support; rent) but that subsequently they would be entered correctly as personal not business expenditure. Other items he could not explain, such as B K Printing and Office Supplies when Mr K is a dentist. The Company losses of $36,000.00 are derived by reason in part of claimed business expenditure in which currently there are substantial sums of money not related to business expenditure. It is impossible for me on the evidence to determine the current status of his Company operations.
I am therefore left in the position of concluding that the husband does have the capacity to pay an additional total sum, over some months, of $1,837.04 resulting in no variation to the current Child Support Agreement between the parties.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Hartnett FM
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