PARKER & JACKS (No.2) - [2009] FMCAfam 743

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARKER & JACKS (No.2)

[2009] FMCAfam 743

CHILD SUPPORT – Application to vary or discharge child support agreement – whether agreement should be varied or discharged – claim for adult child maintenance – non disclosure.

Child Support (Assessment) Act 1989 (Cth) ss.98, 117, 117(2), 117(4), 117(5), 124, 129
Family Law Act 1975 (Cth) ss.66H, 66L, 66G

Wild and Ballard (1997) FLC 92-771
In the Marriage of Hickey [2003] FamCA 385
Luciano & Luciano [2000] FMCAfam 401
S & S [2005] FMCAfam 78
Gilmore & Gilmore (1995) FLC 92-951
Byrant & Byrant (1996) FLC 92-690
Gyselman & Gyselman (1992) FLC 92-279
Parker & Jacks (No.1) [2009] FMCA 290
Cosgrove v Cosgrove (1996) FLC 92-700
Chang & Su (2002) FLC 93-117

Applicant:

MR PARKER

Respondent:

MS JACKS

File number:

MLC 236 of 2008

Judgment of:

O’Sullivan FM

Hearing dates:

5 November 2008 & 19 March 2009

Date of last submission:

7 May 2009

Delivered at:

Melbourne

Delivered on:

22 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr M. Pavone

Solicitors for the Applicant:

Littleton Hackford & D’Alessandro

Counsel for the Respondent:

Ms B. Tulloch

Solicitors for the Respondent:

Jane M Curtis & Associates

ORDERS

That clause 3 of the Child Support Agreement dated 3 September 2002 be varied by deleting the words “one half of” therein appearing.
That the applicant and the respondent each pay half of the rental payments for a flat for [X] and [Y].
That the respondent and her solicitor separately file and serve submissions as to why an order as to the costs of the proceedings ought not be made against them within 14 days.
The applicant file and serve any submissions in reply within a further 14 days.
All extant applications be otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 236 of 2008

MR PARKER

Applicant

And

MS JACKS

Respondent

REASONS FOR JUDGMENT

Mr Parker (“the applicant”) has applied to the Court for orders concerning a Child Support Agreement (“the Agreement”) he made with Ms Jacks (“the respondent”).
In his application filed 10 January 2008 the applicant sought the following orders:
“1.That the Child Support Agreement made 3 September 2002 and accepted by the Child Support Registrar be registered with the Court as an Order, for the purposes of Part 5, made by consent under Section 124 of the Child Support (Assessment) Act 1989.
2.That paragraph 3 of the Child Support Agreement made

2 September 2002 be varied pursuant to Section 98 and Section 129 of the said Act to provide that the Wife pay or cause to be paid all reasonable [G] School fees and education expenses associated with the child [Z] born [in] 1994 for the 2007 academic year and continuing until any of the events referred to in paragraph 6 of the Agreement occur.”
The respondent sought that the Agreement be discharged, there be a departure order and that there be an order for adult child maintenance.
By her response filed 6 March 2008 the respondent sought the following orders:
“1.That the applicant pay maintenance to the respondent for continuing maintenance of the child [Y] born [in] 1989 such amount being equivalent to half of all of the said child’s education fees and living expenses incurred whilst she is undertaking tertiary studies and continuing until such time that the said child completes her tertiary education.
2.That the Child Support Agreement made the 2^nd of September 2002 be discharged.
3.That there be a nil assessment for periodic child support levied against the respondent in relation to the child [Z].
4.That the applicant pay 100% of the costs said [Z] attending the [G] School.
5.Such further or other order as this Honourable Court shall deem appropriate.
6.That the Applicant pay the Respondent’s costs of these proceedings.”

Background

The applicant is aged 61 years and the respondent aged 57 years.
The parties married [in] 1985. There are three children of the relationship, [X] born [in] 1987, [Y] born [in] 1989 and [Z] born [in] 1994 (“the children”).
The parties separated in October 2000. On 3 September 2002 there were final property orders made in the Family Court and the parties entered into a Child Support Agreement (“the Agreement”).
Shortly after entering into the Agreement the applicant advised the respondent he would not contribute to the private school fees for the children.
The parties returned to the Family Court in 2003. The respondent’s application to set aside the final property orders was dismissed[1]. In 2004 proceedings commenced by the respondent in relation to the Agreement were also dismissed.[2]
[1] see decision of Brown J in MLF 4992/2001 on 1 October 2003
[2] see decision of Brown J in MLF4922/2001 on 18 March 2004
The respondent paid the school fees for the children to attend [G] School until 2006. By then [X] had finished year 12 and later that year [Z] moved to live with the applicant.
At the time of the hearing [X] and [Y] were studying at [university omitted] and living away from their parents. [Z] was in Year 9 at [G] School.
The applicant is a farmer and the respondent is a teacher.
Sadly, and as will become clear presently, the conduct of the parties either in relation to the Agreement or the litigation (that it appears has consumed their lives) since the Agreement was made reflects poorly on them both. The Court was left with the impression that to (at least one of) the parties the end excused any means.

Current proceedings

There were interim orders made on 20 February 2008 fixing the matter for final hearing on 5 November 2008.
At that hearing the applicant was represented by Mr Pavone of Counsel and the respondent by Ms Tulloch of Counsel.
The applicant relied on:
i)his application filed on 10 January 2008
ii)his affidavit sworn 20 December 2007;
iii)his affidavit sworn 21 April 2008;
iv)his financial statement sworn 12 March 2008;
v)his affidavit sworn 16 October 2008; and
vi)his outline of case dated 24 October 2008.
The respondent relied on:
i)her response filed 6 March 2008;
ii)her financial statement sworn 19 February 2008;
iii)her affidavit sworn 19 February 2008;
iv)her affidavit sworn 24 October 2008;
v)affidavit of [Y] sworn 28 October 2008; and
vi)affidavit of Mr B sworn 28 October 2008.
Both the applicant and the respondent gave evidence and were cross examined. The other witnesses were not required. However it is necessary to note that one of the children was on affidavit for the respondent and was kept waiting all day in the event she was required to give evidence. Sadly she was so visibly upset by the prospect of doing so Counsel was able to eventually get instructions to excuse her. That she was put through what was so clearly for her an ordeal is something her parents (for whose respective reasons she subjugated to same) will have to explain to her in due course.
The orders the applicant sought at the hearing in November 2008 were those contained in his application filed 10 January 2008. The respondent sought the following orders:
“1.That pursuant to section 136 of the Child Support (Assessment) Act 1989 (“the Act”) the child support agreement made 3 September 2002 and accepted by the Child Support Registrar be set aside as at 1 January 2007.
2.That the husband pay all private school fees and school expenses for [G] School or any other private school agreed to by the parties for the child [Z] from 1 January 2007 to the conclusion of his secondary school education.
3.That pursuant to section 116(1)(b) of the Act there is a departure from the administrative assessment of the child support pursuant to section 117 of the Act which provides that for the period from 1 January 2007 to the day on which the child attains the age of 18 years, completes year 12, or other child support terminating event (whichever occurs last) the assessment of child support for each of the parties is as follows:
(a)the husband to pay the wife the sum of nil per annum; and
(b)the wife to pay to the husband the sum of nil per annum.”
4.That the husband pay the sum of $11,334 per annum by way of adult child maintenance for the child [Y] born [in] 1989 during each year in which she undertakes tertiary studies and to effect the payment of such sums:
4.1.within 14 days of the date of these orders the husband pay the sum of $11,334 to the wife being a reimbursement for his share of such adult child maintenance during 2008; and
4.2.The husband pay to the chid [Y] the sum of $944.50 per month commencing on 1 January 2009 and concluding on 1 December in the final year of her tertiary studies.
5.That all extant applications be otherwise dismissed.
6.Certify for advocacy.”
At the conclusion of the hearing of the evidence there were directions made for the filing of submissions. However before the timetable for those submissions had closed, the Court was approached on an urgent basis by solicitors for the applicant requesting the matter be mentioned in Court.
At a mention on 5 December 2008 Mr Pavone appeared for the applicant, Ms Tulloch for the respondent. There were orders and directions made and the matter returned to Court on 12 December 2008.
On 12 December 2008, the matter could not proceed as Counsel was unavailable and was adjourned to 20 February 2009 and then again to 19 March 2009, where Mr Pavone appeared for the applicant and

Ms Tulloch for the respondent.
On that date the Court dealt with an application in a case filed on
9 December 2008 by the applicant. That application sought the following orders:
“1.That the husband be granted leave to re-open the Hearing of this matter.
2.That the Court grant leave to the husband to adduce evidence as the Court deems appropriate.
3.That the wife pay the costs of the husband of and incidental to this proceeding.
4.Such further Order or Orders as this Court deems fit.”
That application was accompanied by an affidavit of the applicant’s solicitor, Mr D’Alessandro, also filed on 9 December 2008.
There was a response filed on 10 December 2008 which sought that the application in a case be dismissed.
For the reasons set out in Parker & Jacks [2009] FMCAfam 290 the applicant was granted leave to re-open the hearing.The respondent was recalled and cross examined. The Court then made the following orders:
“1.…
2.The wife file and serve submissions on or before 20 April 2009.
3.The husband file and serve submissions on or before 4 May 2009.
4.The wife file and serve any submissions in reply on or before 18 May 2009.
5.The question of all parties costs of this day be reserved.
6.The matter be otherwise be adjourned to a date to be fixed.”
The respondent and the applicant filed submissions after the further hearing.[3]
[3] respondent’s submissions filed 22 April 2009 and applicant’s submissions filed 7 May 2009

Further necessary background

In order to properly contextualise the current proceedings it is now necessary to provide further background of the disputes between these parties over the Agreement over the last number of years.
The following overview is taken from submissions filed by the respondent after the further hearing on 19 March 2009 which provided that:
“7.On 23 December 2002, the wife filed a form 63 application seeking orders that the husband pay or cause to be paid by way of non-periodic child support for the children one half of school fees and education expenses for [G] School, such payments to be made directly to [G] School. The wife’s form 63 application was heard by the Honourable Justice Brown of the Family Court at Melbourne on 30 September 2003, 1 October 2003 and 2 October 2003. Her Honour gave an interim judgment on 8 December 2003 and a final judgment was delivered on 18 March 2004. Her honour dismissed the wife’s application. There was a subsequent judgment delivered by the Honourable Justice Brown on 1 July 2004 (following the making of written submissions for the husband and the wife) with respect to the question of costs. Her Honour determined that the husband’s application for costs be dismissed.
8.On 8 September 2005, the wife as plaintiff filed a writ in the County Court of Victoria at Melbourne against Clancy and Triado as first defendants and Stanley Fookes as second defendant. The first defendants were the firm of solicitors who acted for the wife in the original family law property settlement proceedings (which had been resolved on 3 September 2002 by way of consent orders and the child supported agreement). Stanley Fookes was counsel acting for the wife on that day. In the writ filed on 8 September 2005, the wife made a claim for damages against the defendants in relation to one half of the school fees for the children at [G] School and the legal costs incurred by her in the matrimonial proceedings. The County Court proceedings were ultimately settled in November 2005. Pursuant to the terms of a deed of release entered into by the wife and the defendants, the defendants agreed to pay the wife the sum of $50,000.00 by way of a settlement. The said terms also included a confidentiality clause. The wife’s legal fees associated with the claim for damages were $15,003.50. Following payment to the wife of the settlement sum, in or around December 2005 she received a net amount of $34,996.50.
…
11.On 10 January 2008, the husband commenced these proceedings seeking orders to the effect that the wife be responsible for the whole of the school fees and expenses for [Z] at [G] School until the conclusion of his education. In her response filed 6 March 2008, the wife sought orders for adult child maintenance for the parties’ child [Y], that the husband pay all of the costs associated with [Z] attending [G] School and that the wife’s liability to pay periodic child support be assessed as nil.”
In submissions filed on behalf of the applicant after the further hearing these issues were canvassed at paragraphs 27-30 as follows:
“27.It is common ground between the parties that shortly after the agreement was entered into the Husband forwarded to the Wife a letter indicating that he did not have the capacity to pay any of [Z]’S school fees and accordingly the Wife would have to meet the totality of those fees. The Wife subsequently issued proceedings in which she sought to set aside final property orders pursuant to s. 79(A) of the Family Law Act and a departure order that “the Husband pay or cause to be paid by way of non-periodic child support of the children one half of the reasonable school fees and education expenses associated with their attendance at [G] School (“the payment”).
28.Both applications were dismissed by Her Honour Justice Brown.
29.It is common ground that the Wife paid for all of the children’s school fees at [G] School until the commencement of the 2007 academic year in which year she only paid the fees payable in respect of [Y]’S attendance. [Z]’S fees were not paid in 2007 or 2008 and accordingly as at the 16^th October 2008 the sum of $18,053.22 remained due and payable (see annexure GLP-1 of the Husband’s affidavit sworn 16 October 2008).
30.The Wife on the 15^th September 2006 forwarded a letter to the principal of [G] School advising the withdrawal of [Z] from [G] School. In her letter the Wife stated “I have the means to support one, but not both of my children at [G] School in 2007” (exhibit A of the Wife’s affidavit sworn 19 February 2008).”

Credibility and non disclosure

As was made clear in Parker & Jacks [2009] FMCAfam 290 the applicant alleged the respondent had failed to disclose money she had received. It is now clear these monies were received by the respondent as a result of the settlement of a professional negligence claim she made, (with her current solicitor acting for her), against her former legal representatives over events leading up to (and associated with) the making of the Agreement. In submissions filed on behalf of the applicant it was said that:
“…the non disclosure by the wife casts a shadow over all the evidence she has given in this Court. The Court ought to be very concerned in accepting any of her evidence given the blatant non disclosure by her …particularly when she swore affidavits to the effect that she paid school fees without any reference being made to the Court that the wife utilised the settlement moneys (sic) in that regard.”
Submissions filed by the respondent addressed the issue of the veracity of the applicant’s evidence at paragraphs 51-55. Those submissions then went on to audaciously ask (in light of the respondent’s conduct before the Court) to make a finding that the applicant was not a witness of truth. In the circumstances the Court is not prepared to make such a finding. However that is not the end of the matter given the issue of the respondent’s non disclosure.
In Luciano & Luciano [2000] FamCA 401 O’Ryan J provided the following summary, at [373], of principles from the non-disclosure cases.
·In proceedings in the family law Courts in relation to financial matters there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto;
·The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party;
·The obligation is not created by the rules or practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled;
·If there is a deficiency in the practice adopted for the purpose of making such a disclosure mere compliance with the requirements of the relevant rule, if deficient, is not enough;
·If there is non-disclosure, in the relevant sense, then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters;
·A finding of non-disclosure may, in appropriate cases, depending upon the circumstances, result in the other party being granted, without more, the relief sought.
There is also the decision In the Marriage of Hickey [2003] FamCA 395 at [40] where the Full Court said:
“... each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.” (Emphasis added)
The applicant made the following submissions regarding the impact of the respondent’s non disclosure on her credibility at paragraph [61] to [66] of his submissions:
“61.The application to re-open the case was based on the fact that after the hearing had concluded on the 5^th November 2008, Counsel for the Husband became aware of the fact that on the 6^th September 2005 the Wife caused to be issued out of the County Court of Victoria a Writ in which she alleged that her previous legal practitioners, Clancy & Triado and Stanley Fookes, were negligent in the manner in which they had represented her in “relation to her matrimonial disputes arising from the break up of her marriage to Mr Parker (the matrimonial proceedings).” See paragraph 3 of the Writ.
62.    In paragraph 13 of the Writ the Wife alleged:
“By reason of the matters aforesaid, the Plaintiff has suffered and will continue to suffer loss and damage.
Particulars
(a)one half of the school fees for the attendance of the Plaintiff’s children at [G] School;
(b)the legal costs incurred by the Plaintiff in the matrimonial proceeding.”
63.Exhibit “CDA-1” of Mr D’Alessandro’s affidavit is a letter sent by him to the Wife’s solicitors Jane Curtis dated the 26^th November 2008 in which he sought from Ms Curtis the following:
(i)confirmation that proceedings were instituted by your client in respect to the Child Support Agreement;
(ii)the amount and date of the compromise/settlement or judgment in respect of these proceedings.
64.Exhibit “CDA-2” of Mr D’Alessandro’s affidavit is a response forwarded by Ms Curtis dated the 27^th November 2008. In that letter Ms Curtis advised:
(i)our client is not in a position to respond to your first request as she has agreed to be bound by a confidentiality clause in respect of this issue.
(ii)any information that has come to your attention in relation to our client instituting proceedings for professional negligence must have been provided to you in breach of a confidentiality clause contained in the terms of settlement which finalised those proceedings. There is no lawful basis for that information to have been provided to you. In any event, the terms of settlement referred to in paragraph (i) in herein are not relevant to the matters the Court is required to determine in this case.
(iii)Furthermore our client has made full and frank discovery of all relevant financial matters in respect of the current application. The failure by your firm or your counsel to read and consider our client’s discovered documents (which were provided to you well prior to the commencement of these proceedings) is not a proper basis upon which to re-open the proceedings.
Our client will strenuously oppose any application made by you to re-open this matter and this letter will be produced to the Court on the question of costs.
65.The application to re-open the hearing was heard on the 19^th March 2009 and after submissions, the Court acceded to the Husband’s application. The Wife was cross-examined. It is submitted on behalf of the Husband that the following arises from that cross-examination:
(i)The Wife received the sum of $34,996.50 (net of costs) in settlement of the Writ filed 6^th September 2005 on the 22^nd December 2005 and the 28^th December 2005.
(ii)The damages related solely to reimbursing the Wife for “one half of the school fees for the attendance of the Plaintiff’s children at [G] School”.
(iii)The only plausible reading of the Writ is that the Wife complained that as a result of the manner in which she was represented by her previous legal representatives that she was left with the full burden of paying the children’s private school fees when she had “instructed the Defendant that she was prepared to settle the child support proceedings between herself and the said

Mr Parker (“the Husband”) on the basis, inter alia, that she and the Husband each respectively pay one half of the reasonable school fees and education expenses associated with the attendance of the children at [G] School (“the Plaintiff’s instructions”).
(iv)The Wife incurred legal costs of $37,228.07 in respect of the matrimonial proceedings. Annexed to her affidavit sworn the 9^th December 2008 in annexure B were copies of accounts from Clancy & Triado as follows:
24/4/2001                    $962.20
29/6/2001                $1,927.86
9/10/2001                $3,354.16
18/12/2001             $3,270.08
29/8/2002             $18,913.54
13/9/2002              $8,836.23
(v)The Wife conceded in cross-examination that the overwhelming proportion of those accounts related to the property proceedings and that the only accounts that included any items relating to child support occur in the account dated 19 August 2002 in which there are 8 items claimed. As such any attempt by the Wife to rely upon the fact stated in the Writ the second head of damages claimed namely the recovery of legal costs incurred in these proceedings is relevant, has no substance whatsoever. The costs incurred in relation to the property proceedings were properly incurred and as such could not have formed the basis for any claim of damages. It is also interesting to note that in the submissions filed by Counsel for the Wife at no stage in those submissions is it submitted by her Counsel that in reality the sum received by the Wife in late 2005 is in any way referable to her legal costs.
(vi)The legal costs incurred in the matrimonial proceedings were all paid as at 22/12/2005.
(vii)All school fees in relation to the children were paid as at 22/12/2005.
(viii)The Wife conceded the funds received in respect of the negligence claims were the funds used by her to pay private school fees. At no time in the proceedings conducted on the 5^th November 2008 or in the two affidavits sworn by the Wife was there any evidence that the school fees were in fact funded from this source of funds.
(ix)The Wife accordingly was in breach of Order 3(c) of the Orders of FM O’Sullivan dated the 20^th February 2008, namely that she make discovery of all documents relevant to these proceedings and in particular but not limited to (c) evidence of the source of payments of the children’s fees for the period 2004 until the present time.
(x)The Wife offered the following excuses for the non-disclosure of the negligence claim:
(a)     her counsel submitted she failed to do so, as if she had she could have jeopardised the settlement;
(b)     in cross-examination she stated the reason was she wished to protect the reputations of the solicitor and barrister who acted on her behalf;
(c)     in the letter from Jane Curtis dated 27^th November 2008:
(1)     a confidentiality clause;
(2)     irrelevant;
(3)in any event full and frank disclosure had been made and if those representing the Husband had been competent they would have discovered the settlement.
(66)None of those reasons bear scrutiny. The Deed of Release dated November 2005 was tendered in evidence. The relevant clause in the Deed dealing with this issue of confidentiality is clause 8 which read as follows:
“8.Subject to clause 7 the parties to this Deed agree to keep the terms of this Deed confidential and shall not disclose those terms to any third person without the prior written consent of the other parties to this Deed, save that they may disclose the terms to their legal advisers, accountants, auditors and insurers (or where they are required to do so by law.)”

The respondent has failed to disclose certain aspects of her true financial position to the applicant and to the Court. The Court will not for the purposes of these reasons further rehearse the reasons the respondent gave for this in her most recent affidavit.[4] However suffice it to say the Court does not accept her evidence. Moreover the Court rejects the submission advanced on behalf of the respondent that she did not have to disclose the settlement or that including entries from a bank statement was adequate.
[4] see affidavit filed 19 December 2008 and paras 66-71 of submissions
As the applicant’s submissions put it:
“Apart from the application for adult child maintenance for [Y] this whole case was about private school fees and in particular who in all the circumstances should be responsible for their payment. The fact that in late 2005 the wife received $35,000 as damages for “one half of the school fees for the attendance of the parties children at [G] School” and then adopts the position in these proceedings that notwithstanding having received those moneys (sic) the husband should be solely responsible for the payment of [Z]’S school fees at [G] School for the years 2007 to 2012 inclusive absolutely make the proceedings and subsequent settlement highly relevant.”
As a result of the respondent’s conduct the Court is in the position of having no confidence about the respondent's true financial position. However the Court is driven to the ineluctable conclusion that in these proceedings she has at various times deliberately portrayed it as less favourable than it really is.
In the circumstances the Court is satisfied notwithstanding the submissions advanced on her behalf [5] that there has been deliberate non-disclosure on the respondent’s part. It will be necessary to return to this issue and what action should be taken against those involved in it at the end of these reasons.
[5] see paragraphs 66-71 of respondent’s submissions
Before turning to consider the submissions of each of the parties against the background of the orders they now seek it is convenient to set out the Agreement which it appears has been at the centre of so many disputes between these parties.

The Agreement

It was agreed the Agreement should be treated as a consent order for the purposes of the Child Support (Assessment) Act 1989 (Cth).[6] Omitting for present purposes the recitals, the Agreement provided:
[6] see paras 4 & 14 of applicant’s submissions and para 18 of respondent’s submissions
“1.The terms of this agreement:
1.1.   are operative from 3 September 2002;
1.2.   replace any administrative assessment of child support payable by the wife; and
1.3.   are binding on the heirs, executors, administrators and assigns of both parties.
(Sic)
Non-Periodic Child Support
3.The wife shall pay or cause to be paid for the support of the children one half of the reasonable school fees and education expenses associated with their attendance at [G] School.
Manner of Payment
4.The wife shall pay the child support directly to [G] School.
Duration
6.The wife’s obligation in respect of each child and in accordance with the provisions of this agreement will continue until the occurrence of one of the following events, whichever shall last occur:
6.1.the conclusion of the academic year in which each child attains the age of 18 years;
6.2.the child attains the age of 18 years;
6.3.the child leaves school and obtains full time employment; or
6.4.the child dies.
Credit against Assessment
7.The payments made by the wife in accordance with the provisions of this agreement are to be credited to her liability under any relevant administrative assessment of child support as 100% of the annual rate of child support payable by her pursuant to such administrative assessment of child support.
Current Child Support Arrears
8.To the extent (if any) that the Child Support Agency may consider that there is a current administrative assessment in arrears, the parties agree that such an administrative assessment as a nil value as at the date of this agreement and the husband agrees to discharge all arrears (on the basis that the payments have been made directly to the [G] School) and do all such acts and things necessary and sign all such documents as may be required by the Child Support Agency in order to do so.
Registration
9.This agreement is to be registered in the Family Court of Australia at Melbourne pursuant to Order 31B Rule 33 of the Family Law Rules and at the Child Support Agency pursuant to the provisions of Part 6 of the Child Support (Assessment) Act 1989.”
As is pellucidly clear from the orders sought by both parties they have used these proceedings to continue to ventilate their dispute over a lacuna in the Agreement. The positions of both parties could be characterised as an attempt to obtain vindication, after the event and through the Court process, of the unilateral action they have each taken at various times. In doing so they have been prepared to expose the children to that conflict and appear not to have realised the effect that conflict could have visited on the children let alone the impact their actions could have on others involved in their dispute.

Orders sought in final submissions

After the further hearing on 19 March 2008, Counsel for each of the parties filed submissions broadly in accordance with the timeframe set out above.
In submissions filed on 22 April 2009 the respondent sought the following orders:
“(a)The Child Support Agreement dated 3 September 2002 be discharged from 1 January 2007;
(b)The wife be assessed to pay child support in the sum of nil per week for the benefit of the child [Z] from 1 January 2007 until he turns 18 years, completes school or earlier child support terminating event;
(c)Pursuant to the provisions of Section 98(2) of the Child Support (Assessment) Act 1989 (as amended prior to 1 July 2008) the husband pay all of the school fees and expenses arising from [Z] attending [G] School from the 2007 academic year until he completes his secondary education;
(d)That the husband within 14 days pay the wife the sum of $11,300 to reimburse her for his share of adult child maintenance paid by the wife for the benefit of [Y] during 2007;
(e)That the husband within 14 days pay the wife a sum equivalent to $200 per week from 1 January 2008 to the date of these orders to reimburse her for his share of adult child maintenance paid by the wife for the benefit of [Y];
(f)From the date of these orders until the completion of her tertiary education the husband pay directly to [Y] the sum of $200 per week by way of adult child maintenance;
(g)That the husband pay the wife’s costs of these proceedings.”
In his final submissions the applicant sought the following orders:
“1.That clause 3 of the Child Support Agreement dated 3 September 2002 be varied by deleting the words “one half of” therein appearing.
2.That the Husband and Wife each pay one half of the rental payments for the children [X] and [Y]’S flat.
3.That otherwise the Wife’s application filed 6 March 2009 be dismissed.
4.That the Wife pay the Husband’s costs of and incidental to his application filed 10 January 2008.”

Approach to the Agreement

At the hearing both parties proceeded on the basis that the Agreement could be varied or discharged under the Child Support (Assessment) Act 1989 (“the Assessment Act”). Part 6 of the Assessment Act governs the operation of child support agreements.
There have been a number of changes to the Assessment Act over the last couple of years. Item 73 in Schedule 5 of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 provides:
“(1)The amendments made by this Schedule (other than item 58) apply in respect of:
(a)a child support agreement if the application for acceptance of the agreement is made after Division 3 of Part 1 of this Schedule commences; and
(b)subject to sub-item (3), an application made to a court after that division commences.”
Sub-paragraph (3) provides:
“(3) To avoid doubt, if:
(a)an application is made to a court before Division 3 of Part 1 of this Schedule commences; and
(b)immediately before that Division commences, the application has not been finally dealt with by the court;
the Assessment Act and the Registration and Collection Act, as in force at that time, continue to apply after that time in respect of the application (including in respect of an appeal to another court in relation to any order made by the court).”
The application was filed on 10 January 2008. The matter was heard on 5 November 2008 and 19 March 2009, final submissions closed on 18 May 2009.
Section (2) of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 provides that the commencement date for Schedule 5, Part 1, Division (3) is 1 July 2008. Hence in relation to this application, the Court intends to apply the Assessment Act as in force prior to 1 July 2008.
The applicant’s submissions addressed how the Court should approach the Agreement at paragraphs [18]-[26]. The respondent’s submissions addressed the issue and in particular the impact of the amending legislation to the Assessment Act referred to in the earlier paragraphs on the Court’s approach to the Agreement at paragraphs [13]-[23].[7]
[7] In those submissions Counsel for the respondent also sought to distinguish her current position before the Court from that before the Family Court in 2004 at paras 24-26
Section 95 of the Assessment Act provides that periodic payments due under a child support agreement are to be treated as if they are due pursuant to an order made by consent under the Assessment Act.
As it was prior to the recent amendments, Section 98 of the Assessment Act provided as follows:
“98(1) (Where Court may vary etc. agreement) where:
(a)under s.95, provisions of a child support agreement have effect, for the purposes of Pt 5, as if they were a Court order of a particular kind; and
(b)the agreement, or those provisions of the agreement, are registered in a Court having jurisdiction under this Act;
the provisions may be discharged, suspended, revived or varied by the Court in the same manner and in like circumstances as the Court could discharge, suspend, revive or vary an order of that kind made by it.”
The authorities of the Family Court make clear that in any application pursuant to s.98, the Court should apply the provisions of s.117 of the Assessment Act in determining whether there should be any variation or discharge of the agreement (see Wild and Ballard (1997) FLC 92-771).
The provisions of section 117 of the Assessment Act empowers the Court to make an order for departure from an administrative assessment in special circumstances. Given this to vary a consent order made under Part 7 of the Assessment Act, a Court must be satisfied that a ground for departure mentioned in s.117(2) of the Assessment Act exists, and that it would be "just and equitable" and "otherwise proper" within the meaning of s.117(4) and (5), to make an order changing an existing order.
In S & S [2005] FMCAfam 78 at [59] Riethmuller FM said:
“59. In the cases leading up to Gilmore & Gilmore (1995) FLC 92-591 there was some uncertainty as to the law relating to an application to change a child support agreement. The Court in Gilmore's case made clear that a child support agreement is not to be varied or discharged merely by way of showing some specific changed circumstance by reference to sections of the Family Law Act 1975 or section 141 of the Child Support (Assessment) Act 1989. Rather, the change of circumstance must be a ground under section 117 of the Child Support (Assessment) Act 1989.
60. Furthermore, as was made clear in Bryant & Bryant (1996) FLC 92-690, there must be some difference in circumstances from the time that the agreement was made in order to show a `special circumstance' under section 117 of the Act. This is because the agreement takes effect as if it were an order of the court (see s.98 of the Act). An order of the court will not be varied or discharged unless there is some change in circumstances to show that that order is no longer appropriate as was discussed. This issue was discussed in Bryant & Bryant at pages 83,169 to 83,170.
61. The considerations relevant when determining whether or not the agreed amount ought to be altered are those set out in the departure process provisions available under section 117 of the Act, using the approach set out in Gyselman & Gyselman (1992) FLC 92-279. In Gyselman the Full Court of the Family Court said (at 79,078):
As we have already indicated, the exercise under s 117 involves three steps. The first, which we have already examined, is whether one or more of the grounds in sub-section (2) has been made out. The legislation then requires the Court to consider whether any proposed order is `just and equitable' and `otherwise proper'.
Earlier, at page 79,065 the Court said:
Whilst it is not possible to define with precision the meaning of that term [`special circumstance'], as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. ... That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. ... In Savery's case [1990] FamCA 30; (1990) FLC 92-131 (p 77,897), Kay J ... said that ´´special circumstances'' were ´´facts peculiar to the particular case which set it apart from other cases''.
In the case of Bryant[8] the Full Court said as follows:
“In the case of a child support agreement which has been accepted by the Registrar, and which provides for the payment of periodic child support, such an agreement takes effect as a departure order made by consent (s95(2)), and before the agreement can be varied by the Court, the Court must, again in our view, be satisfied that there has been some change which would give rise to one of the grounds for departure in paragraphs 117(2)(a), (b) and (c).”
[8] Bryant (1996) FLC 62-690
The parties accepted the provisions of s.117 are relevant regardless of whether the Agreement is discharged or varied.[9]
[9] see para 23 of Respondent’s submissions
In summary, each of the following steps must be addressed by the Court as a separate issue:
a)whether one or more of the grounds of departure in section 117 is established; if so
b)whether it is just and equitable within the meaning of section 117(4) to make a particular order; and
c)whether it is otherwise proper within the meaning of section 117(5) to make a particular order.
Given this it is timely to turn first to the evidence of the parties’ financial circumstances.

The parties financial circumstances

The applicant’s submissions on this issue were:
“6.The Husband’s amended Financial Statement sworn the 12^th March 2008 set out the Husband’s income as follows:
Family tax benefit A              $75.00
Family tax benefit B             $38.00
Military Pension                 $116.00
Total  $229.00
7.In cross-examination the Husband was not in any way challenged as to the veracity of the above figures.
8.Insofar as the rental income received by the Husband from “the farm” and the investment properties, the Husband tendered in evidence the financial statement of [M] Pty Ltd and the [G] Station Property Trust. Those records are as follows:
[G] Station Property Trust          2005 profit - $51,706
2006 profit - $14,343
2007 loss - $57,256
[M] Pty Ltd  2005 loss - $1,099
2006 taxable income   $1,518
2007 taxable income   $3,108.
9.Insofar as the year ending 30^th June 2008 was concerned the Husband prepared a written statement of the estimates of the income and outgoings from the farm and the investment properties. The Husband estimated that the total gross income would be of the order of $248,000 and his expenses would be $250,400, an overall loss of $2,400.
10.Whilst the Husband was asked a series of questions by Counsel for the wife about his estimates, it is submitted on behalf of the Husband that his estimates were in no way shaken. The Husband conceded in the year ended 30^th June 2009 he anticipated receiving a dairy refund of approximately $30,000 whereas in the financial year ending 30^th June 2008 he received a refund of $7,000. On the other hand he gave unchallenged evidence that he is likely to lose the tenant at Property T, meaning a loss of rental income of $39,000. The Husband also gave unchallenged evidence that whereas in early 2008 there were no vacant shops in the commercial district in [T] but there are now 6 vacant shops. It is submitted on behalf of the Husband that the Court ought accept that for the relevant periods he received little or no net rental income from the farm or investment properties.”
The respondent’s submissions addressed, in minute detail, the assets of the applicant (in most cases without reference to the actual ownership of those assets by the [G] Pastoral Company Pty Ltd).[10]
[10] see para.38-39
The respondent then argued by reference to what it was contended the applicant had retained at the time the Agreement was made (as a result of the property settlement)[11] that the applicant had since then “managed to service his extensive debts from his income and investments” and his net asset position had improved significantly.[12]
[11] see paras.40-41
[12] see para.42
The respondent’s submissions were the applicant’s net assets and financial resources were “approximately $4.7m.” The respondent then submitted:
“44.It is submitted on behalf of the wife that whether the court finds that the husband’s net assets and financial resources are now $4.7m, $1.5m or something in between, any of these net values represent a significant improvement in the husband’s net global financial position between late 2002 and late 2008. Further as will be argued in more detail below any of those net values being attributed to the husband place him in a financial position which is vastly superior to the wife. Her current net assets and financial resources (including her superannuation entitlements) are now less than $100,000. The wife’s assets and financial resources being called upon between 2003 and 2007 to meet private school fees and expenses for the parties’ children.”
The respondent’s submissions were that the applicant was better able to meet private school fees for [Z] and tertiary expenses for [Y] and he could restructure his assets to generate a greater income.[13] However those submissions was made in advance of the acknowledgement that the applicant’s financial affairs and investments (were structured in such a way that) requires him to meet significant expenses each financial year and his income was minimal.[14]
[13] see paras.72-74
[14] see para/48
Notwithstanding that acknowledgement the respondent submitted the Court could find the applicant could substantially improve his income if he restructured his financial affairs and he had significant income earning potential even if he had minimal taxable income.
The applicant had made repeated references in his affidavit material to his deteriorating financial position.[15] The respondent in submissions acknowledged that the applicant’s income had not increased and the applicant had rejected the suggestions put to him in cross examination about selling assets.
[15] see eg. Affidavit filed 28 October 2008 at para 14, 18
At this point it is important to recall that in financial proceedings the authorities make it clear that a Court “should not be unduly cautious about making findings in favour of the other party of it is not satisfied that proper disclosure has been made (see Chang & Su (2002) FLC 93-117)”.

The Court rejects the respondent’s criticism of the applicant’s evidence regarding his financial position and in light of the matters already referred to cannot be satisfied the respondent’s financial position is as she would have the Court accept.
Whilst the Court accepts the applicant has a better asset position, the respondent has better income and it appears the ongoing financial assistance of her elderly parents to draw on.

Consideration of competing claims regarding the Agreement

The applicant sought that the Agreement be varied. The respondent sought to discharge the Agreement.
As the Court understood the applicant’s case “there have been a considerable change of circumstances”. The applicant noted at the time the Agreement was made:
a)[Z] was living in a shared care arrangement;
b)the applicant was working [in the Education Industry];
c)[X] was living with the applicant; and
d)[Y] was living in a shared care arrangement.
The applicant noted that now [Z] was living with him and [X] and [Y] were both at university and living away from home.[16]
[16] see paragraph 24 of the Applicant’s submissions
The respondent’s claim for the Agreement to be discharged was made having regard to the matters set out in s.117(2)(c) of the Assessment Act.
The applicant’s submissions dealt with the grounds relied upon by the respondent under s.117(2)(c) to discharge the Agreement and submitted:
“52.It is hard to see given that the Wife earns at least $60,000 per annum, lives in rent free accommodation, has a car provided to her free of charge by her parents, that in all those circumstances it would be just and equitable and otherwise proper for the Wife to pay nothing towards the upkeep and education expenses of [Z].
53.Much was made in this case that the Husband has significant financial resources. On the Husband’s case he has net assets of approximately $1.5 million. On the Wife’s case that may be as high as $4.5 million. However, nowhere in this case is it asserted by the Wife that she does not have the ability to pay from her income the amount sought by the Husband in this case.
54.It is not the Husband’s case that the Wife ought to bear 100% of the costs of maintaining and educating [Z]. It is his case that in paying [Z]’S education expenses of approximately $9,000 per annum ($173 per week) that the Wife would be contributing less than 50% of the overall expenses and in this case that would be just and equitable and otherwise proper.”
In resisting the applicant’s claim that the Agreement should be varied and she pay for [Z]’s school fees (as he was now paying for everything else) the respondent argued she should not be liable for [Z]’s school fees as this would not be just and equitable as she had paid school fees from 2003-2006.
However she received a settlement from her negligence action which she did not disclose to the Court until her hand was forced. What she received as a result of those proceedings approximated what she would have got from the applicant by way of half the school fees over that period.
It was not disputed that during the time between when the Agreement was made and these proceedings were brought, the applicant’s assets have increased but so have his liabilities. The respondent did not suggest anything other than that the applicant had limited income.
It was also not disputed that the change in the circumstances for [Z]’s care meant the applicant was now responsible for all of that child’s expenses save for the school fees the subject of the Agreement.
In summary then the parties are in a very different financial and asset position from what they were when they entered into the Agreement. Those circumstances are not something that would have been in the contemplation of the parties at the time they entered into the Agreement. It is special within the meaning of the section as described in Gyselman (supra).
The orders sought by the applicant, given the change of circumstances, that occurred at the end of 2006 clarify the application of the Agreement. The Agreement as it presently stands provides for the respondent to be responsible for one half of the children’s educational costs until they finish school. The change of circumstances that justifies the variation is [Z] moving to live with the applicant.
The Court is satisfied there has been a change in circumstances of the children, the carer entitled to the child support or liable parent concerned since the order was made or last varied.
In addition the position of the parties before the Court and the way they have conducted this litigation also raises the issue as to whether the Agreement is still proper or adequate.
The next issue is whether it is just and equitable as regards the child the carer entitled to child support and the liable parent to make the orders sought.
Under the terms of the Agreement, the applicant does not contribute towards the school fees for [Z] and this has been a festering sore the parties have continued to pick over since 2002.
However the Agreement on its face does not appear to contemplate the circumstance of [Z] being only with one parent and that parent being solely responsible for his costs.
Notwithstanding the finding that the Court is unable to accept the respondent’s evidence regarding her financial circumstances it is common cause the respondent has a greater income than the applicant, but the applicant's asset position is superior to the respondent’s for the reasons as I have already set out.
Counsel for the applicant calculated the costs of half of [Z]’s school fees from 2006 until he finished would be around $41,000. From the settlement of the negligence proceedings the respondent received around $35,000 nett leaving a difference of around $18 per week over the period.
In the face of her acknowledgement of this in cross examination the respondent nonetheless maintained that she believed it was fair she make no contribution to [Z]’s school fees from 2007 onwards.
In submissions filed after the hearing the applicant’s position was:
“31. It is submitted on behalf of the Husband that the evidence clearly shows the Wife had the capacity and still has the capacity to meet [Z]’S fees at [G] School. The Wife in cross-examination conceded such. When asked why she had not paid [Z]’S fees in 2007 the Wife replied with words to the effect “I did not pay because I did not think it was fair as I had paid all of the kids fees in 2003, 2004, 2005 and 2006”. The Wife conceded insofar as [Y]’S fees were paid in 2007 they were paid in three instalments. It was suggested by Counsel for the Husband that in those circumstances the fees would probably have been paid in approximately February, June and October. The Wife agreed.
32.Tendered in evidence were copies of ING Direct Savings Maximiser Account No. [7] in the name of the Wife for the period 16 January 2007 to 10 June 2008. Those statements show that as at the 16^th January 2007 the account balance was $30,000, more than enough for the Wife to pay both [Y] and [Z]’S fees for the 2007 school year.
33.No significant withdrawals were made in this account until the 8^th July 2007 when the sum of $3,000 was withdrawn. In the period 8^th July 2007 to 31 December 2007 the total sum of $17,000 was withdrawn from that account. The Wife gave no real explanation as to where those moneys were spent. As at 31 December 2007 the account had a credit balance of $14,234.88, more than enough to pay [Z]’S 2007 fees. In the period 8 January 2008 to 31 March 2008 the sum of $16,061 was withdrawn from that account. It could not have all been paid to the benefit of [Y] as she would have commenced her tertiary studies in late February 2008 and certainly would not have been used to pay her university college fees for the total year. The Wife gave no such evidence, she provided no documentary proof as to what moneys she paid to University College. In all the circumstances, it is submitted that the Child Support Agreement dated 3 September 2002 ought to be varied and not discharged to the effect that the Wife be responsible for [Z]’S school fees as and from term 1 of 2007. Clause 7 of the said agreement should remain in full force and effect.
34.It is interesting to note that nowhere in the submission filed on behalf of the Wife on the 22^nd April 2009 nowhere is it asserted on her behalf that she currently does not have the capacity to pay the private school fees (approximately $9,000 per annum from her income). The Wife in paragraph 30 of her submissions seeks to rely on Mee v. Ferguson in support of her application that she ought not be responsible for the payment of [Z]’S school fees as she in September 2006 wrote to [G] School indicating that she no longer will be responsible for [Z]’S school fees thereby withdrawing her consent to his attendance at [G] School. The relevant question in this case is at the time [Z] was first enrolled at [G] School did both parents consent to his attendance at that school? The answer to that question is clearly yes.
…
76.The Wife in December 2005 received the sum of $34,996.50 from a settlement of the negligence claim. In effect it is submitted by the Husband that the Wife received 50% of the school fees from 1 January 2006 until the year 2012 when [Z] will conclude his secondary education. In all the circumstances of this case one wonders how it is that the Wife maintains her current position particularly when one takes into account the contents of paragraph 12 of her affidavit sworn 19 February 2008 which is as follows:
“I do not have the capacity to make any further contribution to [Z]’S private school fees. I would only be able to contribute if the Applicant was ordered to also equally contribute to [Y]’S tertiary expenses.”
The Court is also not convinced she does not have financial resources she could draw on to continue to meet her share (by way of school fees) of the costs of caring for [Z]. Moreover in the circumstances the Court is not satisfied the respondent can withdraw her consent regarding the school [Z] attends.
In varying the Agreement as sought by the applicant the result would see the parties sharing [Z]’s costs.
The Court accepts the applicant’s submission that having regard to the evidence before the Court the respondent would have available to her $415 per week which would enable her to meet:
a)[Z]’s school fees of approximately $173 per week; and
b)50% of the cost of a flat for [Y] and [X] to rent of $225 per week.
However the Court considers that given the current circumstances of the parties and the adult children that it is just and equitable that they each shoulder a share of the burden of the costs of the one child under

18 years and that the applicant who was meeting the costs of the child in his household should be assisted by the respondent in meeting the child’s school fees. In considering this matter the Court has taken into account the period of time that has elapsed since the application was made and the reasons for this. However, the Court is satisfied that the next ground under s.117 is made out and now it is necessary consider whether it is otherwise proper to vary or discharge the Agreement.
At the November hearing Counsel for the applicant put to the respondent that it would be equitable and fair for the parties to share the costs of the 3 children by sharing the cost of the flat (for the

2 eldest adult children) and share the costs of [Z].
The respondent rejected this as her evidence was she didn’t believe this was fair as she had paid all the fees and should have only paid half.
Her evidence was she used the money from the property settlement to fund the school fees. However she omitted to go on to say she had received an amount roughly equal to that half in settlement of the negligence claim.
At the time of the Agreement [Z] was living in a shared care arrangement. The variation sought by the applicant would apportion responsibility for [Z] (who is now living with the applicant) between his parents with the respondent meeting his school fees and the applicant his upkeep.
The respondent acknowledged in cross examination she had the capacity to meet the school fees. It was clear her objection to doing so was based on her belief the situation that had prevailed up to 2006 (where she paid all the fees) was unfair and she did not believe she could continue to meet the fees “right through.” However given her unsatisfactory evidence before the Court I cannot be satisfied that is the case. The Court is satisfied it is otherwise proper to vary or discharge the Agreement.
The next issue is what orders the Court should make. As the parties acknowledged there are at least two options. The Agreement could be varied or discharged.
As the respondent’s submissions noted a discharge would have the effect of enabling the parties to seek an administrative assessment. However, the Court does not accept the respondent’s submissions that the Court should consequential upon such an order (and in reliance on s.98(2) of the Assessment Act) make a nil assessment against the respondent until [Z] turns 18 years old.
The application of the respondent in 2004 was not an application to discharge the Agreement. In her submissions the respondent distinguished the fate of that earlier application from her current position and on that basis she contended s.98(2) could be relied on to make an order for a nil assessment of child support in her favour until [Z] turned 18.[17]
[17] In submissions her Counsel noted she had “been unable to find any…case which might be available to give the Court some guidance” on this submission
In what appeared to be a somewhat circular submission the respondent’s position was:
“32(d)The wife has sought an order in her response filed

6 March 2008 that the husband pay all of the school fees and expenses associated with [Z] attending [G] School. It is submitted on behalf of the wife that the court does have the power pursuant to section 98(2) to make such an order. The provisions of section 98(2) give the court a wide and far reaching power to make orders which may be necessary following a modification, including the discharge, of a child support agreement. It is submitted on behalf of the wife that the problems referred to by the Honourable Justice Brown in her judgment of 18 March 2004 which precluded her from making an order that the husband pay private school fees can in fact be overcome by the provisions of section 98(2). As determined by Her Honour, an order that the husband pay private school fees would have to be made under section 124, however this section only relates to making orders for a liable parent to pay non-periodic child support. As the husband is not a liable parent in the absence of a child support assessment, Her Honour found that she could not make an order against him. It is submitted on behalf of the wife that such a difficulty is precisely the kind of circumstance that Parliament envisaged when it enacted subsection 98(2).”
Given the absence of authority for the position the respondent contended for in this case the Court accepts as the applicant’s submissions said there cannot be a departure from an administrative assessment if there is no administrative assessment:
“55.It is understood by the Husband that what the Wife is seeking in paragraph 4 of her Application is a departure order pursuant to which the Husband is to pay 100% of [Z]’S attendance at [G] School. It is submitted by the Husband that this application is ill-conceived and must be dismissed. In her judgment delivered on 18 March 2004 Her Honour Justice Brown at paragraphs 41 and 42 stated the following:
“41. For the reason I am satisfied that if the Wife’s application is considered pursuant to ss.123 and 124 it must be dismissed. There is no evidence of a current assessment. The assessment. The assessment in force at the time the Form 63 Application was field on 23 December 2002 was a nil assessment. I am not satisfied that an administrative assessment is in force in relation to the three children, the carer entitlements to child support and the liable parent.
42.In my view this finding also precludes an order being made pursuant to s. 129. If an order made under s. 124 must relate to existing obligations so must the variation. There is no existing obligation.”
56.… that the current position is exactly as it was when Her Honour delivered her judgment in March 2004. There is no current child support assessment pursuant to which the Husband is obliged to make payments of either periodic or lump sum payments or education expenses in respect of the child [Z]. The Wife sought to rely upon the fact that she had received a child support assessment dated the 8^th October 2008 as the basis for this application. This cannot be the case. There is not now, as there was not in March 2004, any assessment of child support in which the Husband as the liable parent is obliged to pay child support for the Wife for the benefit of [Z].
57.There cannot be a departure order from an administrative assessment of child support when there is in fact no administrative assessment of child support.”
If the Agreement was discharged the applicant set out (at paras.47-57 in his submissions filed after the further hearing) that the parties could be referred to the Child Support Agency (“CSA”) for an administrative assessment as, contrary to the respondent’s submissions, there is not administrative assessment in place to depart from.
The Agreement has been a source of almost constant litigation between the parties since 2004. The disputes between the parties (and their positions before the Court) indicate it is likely they will continue to attempt to take advantage of any argument available to them against the other. Their respective positions before the Court made clear they were fixated on the lacuna in the Agreement and were prepared to involve their children in the dispute.
I am not satisfied that is just and equitable as between the applicant and the respondent to discharge the Agreement particularly where the application of any administrative assessment may impact more on the respondent who has greater income.
Because the Court is unable to be convinced the respondent’s financial circumstances are as she contends (by virtue of her deliberate non disclosure) and given the applicant has limited income but greater assets it is just and equitable as between the parents to vary the Agreement rather than discharge it.
In determining whether it would be otherwise proper to make a particular order I am satisfied that given the provisions of s.117 it would be otherwise proper to make an order varying the Agreement so that clause 3 of the Agreement has deleted from it “one half of” and it should be effective from the time the change of circumstances occurred.

Approach to claim for adult child maintenance

There is also a claim by the respondent for adult child maintenance but only for one of the adult children. Section 66B(1) states that the principal object of Division 7 of Part VII the Family Law Act 1975 (“the Act”) is to ensure that children receive a proper level of financial support from their parents. Section 66B(2) states that particular objects of Division 7 include ensuring that:
a)children have their proper needs met from reasonable and adequate shares of the income, earning capacity, property and financial resources of both their parents; and
b)parents share equitably in the support of their children.
Section 66L of the Family Law Act 1975 allows the Court to make an order for payment of maintenance for children over the age of 18. The section states:
“Children who are 18 or over
(1)A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a)to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
(3) A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.”

In Cosgrove v Cosgrove (1996) FLC 92-700 the Court considered an application for adult child maintenance and observed the provisions of the child maintenance sections generally apply to the maintenance of a child over 18 years. Thus, the Court must consider [Y]'s needs.
The word "necessary" does not mean "absolutely essential", but involves a consideration of "reasonableness."[18] In the present circumstances, that requires the Court to have regard to considerations such as that [Y] is a full time university student. However neither party suggested the [Y] was unable to work. It was accepted she could support herself at least in part by obtaining a part time job. The dispute between the parties appeared to be whether it was necessary for her to complete her tertiary education that she attend a residential college.
[18] (see Cosgrove(1996) FLC 92-700 at 83,389)
If "reasonableness" is the correct test, then the Court must also assess the adult child’s proper needs by reference to those of her expenses which are reasonably necessary to enable her to continue and complete her tertiary education.
Section 66H sets out the approach to be taken in proceedings for child maintenance. First, the Court must consider the financial support necessary for the child in accordance with s.66J. Second, the Court must determine the financial contribution that should be made by either party taking into account the matters set out in s.66K. Ultimately, s.66G authorises the Court to make such orders for child maintenance as it thinks proper.
In the case before the Court there is no dispute that the two eldest children are presently engaged in tertiary studies nor is it contested that they are likely to continue to pursue education at a tertiary level. However in this case and on this issue (which appeared to be sought as an after thought) the application only concerned [Y], not both adult children. The issue was whether either party could meet the costs of the additional support it was said she required.

Consideration of adult child maintenance claim

The respondent did not agree with the applicant’s position that sharing the cost of the flat for the two adult children and the school fees for [Z] was fair and equitable. The respondent’s position was this would not be fair and equitable because she had paid all the school and other fees for some time.
In relation to the respondent’s claim regarding maintenance for [Y], the applicant had contended he had “solely” provided for [X] (without any form of assistance from the respondent) and it would be unfair and unjust for him to be required to also contribute towards [Y]’s maintenance in addition to his sole financial assistance for [X].
The respondent’s submissions first addressed the relevant legislative provisions at paragraphs [33]-[36]. The respondent’s submissions then went on to review the applicant’s property and financial resources,[19] the applicant’s income and expenditure.[20] In doing so the respondent’s submissions acknowledged the income generated from the applicant’s investments was minimal and he is required to meet significant expenses each financial year.
[19] see paras.38-45
[20] see paras.46-50
The respondent’s submission was that requiring the applicant to pay $200 per week directly to [Y] for 2009 and until the completion of her tertiary studies was not unreasonable in all of the circumstances.[21] The respondent’s submission was that she was prepared to meet the balance of any shortfall.
[21] see paras.75-77 also
The applicant’s submissions addressing this issue were at paragraphs [36]-[46] and [77] of his submissions filed after the further hearing. The applicant’s submissions addressed the issue of the financial support necessary for [Y] in the following way:
“37.In this case [Y] is 19 years of age having been born [in] 1987 and in February 2008 [Y] commenced a Bachelor of [omitted] course at [university omitted]. Accordingly, the preliminary issues, namely that she requires maintenance to enable her to complete her education, is not an issue in this case. In relation to [Y] the application for adult child maintenance was filed on the 6^th March 2008. A different order was sought in the Application than was sought in the Final Hearing. The mother swore an affidavit in support of her application on 24^th October 2008. At paragraphs 4 to 6 of the affidavit the Wife sets out her understanding of [Y]’S income and expenses during 2008.
Expenses
College fees         $17,809
Living expenses       $11,500
Total  $29,309
Income
Part time work  $5,000
Centrelink payments                   $5,500
Commonwealth Scholarship      $2,000
Total  $12,500
Part time work
38.The Wife did not produce any documents to support the above analysis. In respect of [Y]’S income the Wife asserts that [Y] earns $250 net per week commencing the end of July 2008. It is common ground that [Y] will finish [university] in early November 2008 and accordingly for the rest of the year she can work full time. No proper explanation was proffered by the Wife as to why [Y] only commenced work in July 2008. No mention was made of the income [Y] earned in January and February 2008 whilst working at Sale.
Commonwealth Scholarship: estimate $2,000
39.Again no documents were tendered confirming that payment. It is up to the Wife to prosecute her case and provide to the Court documentary proof setting out precisely what moneys [Y] received in 2008 before the Court is in a position to determine what amount if any the parties ought to contribute to [Y].
40.In respect of her expenses a critical amount was the fees payable to University College of $17,809 (over a year $342.48 per week). It was common ground in this case that neither the Wife nor [Y] had any discussion with the Husband prior to [Y] being enrolled at University College. No request was made of him to contribute to those fees or her other weekly living expenses. The Wife conceded in evidence that in 2007 and 2008 [X] resided in Melbourne whilst completing a valuation course at [university] in a flat at a weekly rent of approximately $200 per week. The Husband contributed the sum of $100 per week for [X].
…
42.In this case the evidence is clear, the Husband was not consulted nor did he consent to [Y] attending University College. She could clearly have shared a flat with [X] as all the evidence showed she intended to do from the beginning of 2009. This has in fact occurred. There is no evidence of “reasons relating to the child’s welfare, which dictate attendance at that school rather than at a non private school”. In those circumstances it is submitted that in relation to the year ending 31 December 2008 the Court ought disregard the payment of the fees to University College in assessing the amount if any the Husband ought to pay (if any) by way of adult child maintenance for the child [Y].
43.It is submitted by the Husband that given his income in 2008 of approximately $229 per week, that it is not just and equitable or otherwise proper to require him to contribute the sum of $218 per week to [Y] when he is paying $100 per week to [X] and paying effectively all of [Z]’S weekly living expenses. It is accordingly submitted in relation to the calendar year ending 2008 no order should be made for the Husband to pay adult child maintenance to [Y]. In respect of the calendar years 2009 and 2010 the Husband submitted that he should contribute 50% of the rental for a flat in which both [Y] and [X] would live. He would expect the Wife to similarly pay 50% of the rental. In all other respects [Y] would support herself from her earnings.
44.At paragraph 4.2 of her affidavit of the 24^th October the Wife asserts that [Y] is earning $250 net per week and her weekly expenses (other than a accommodation costs) were $220 per week. It is conceded by the Husband that if [Y] lived in a flat her food expenses and payment of utilities would need to be factored into determining her weekly living expenses. Given the amount that [Y] earned in 2008 and is likely to be able to continue to earn throughout the course of her degree, it is unlikely that from those funds and the continuation of her Commonwealth scholarship that she would not be able to support herself. [Y] clearly would be able to work full time between the conclusion of the academic year and the commencement of the following academic year (at least 3 months in duration).
45.In the affidavits filed on behalf of the Wife and also in the submissions filed on her behalf nowhere is there any attempt made by the Wife to set out what she believes would be the reasonable living expenses of [Y] other than the year 2008. In those circumstances it is impossible to predict with certainty what if any will be the shortfall for [Y] in the years 2009 and 2010 at [university].
46.It is submitted on behalf of the Husband that the Orders as sought by him, namely that he would contribute one half of the rental of the girls’ flat which would provide her with security and certainty and enable her to support herself otherwise.”
The applicant’s evidence was inter alia:
“…it was my view I would continue to financially support [X] as I have throughout and the Respondent would support [Y] Indeed became [X] and [Y] are at the same Campus, I do not see any reason why they could not share a flat…”[22]
[22] para 20 affidavit filed 28 October 2008
The provisions the respondent is relying on in relation to [Y] are set out in s.60L(1) and are to enable the child to complete her education. The Court must be satisfied that the provision of maintenance is necessary. The dispute between the parties descended to the reasonableness of the costs of a residential college.
In cross examination the applicants evidence had been the respondent had indicated she would meet [Y]’s costs and he would pay for [X]. It was clear from the applicant’s evidence he believed [Y] should (like [X]) have worked for a year after finishing school to have greater access to social security benefits.
In cross examination the applicant’s position (that [Y] and [X] should share a flat and the rent be shared between the applicant and the respondent) was put to the respondent. The respondent agreed if that was the case the adult children’s (including [X]’s) needs and expenses would be met. The exception the respondent took to this argument appeared to turn on [Y]’s enrolment in a residential college. It is not disputed the applicant had not been consulted on this.
[Y] is working and the Court accepts that she does have an earning capacity during the holidays. It is not unreasonable to expect her to earn $250 per week over the year. The Court then has to consider how it should apportion the difference which it appears correlates with [Y]’s accommodation costs. Given the issues referred to above the respondent has not met the burden that fell to her to convince the Court that accommodation at a college was necessary for [Y] to complete her education, where it was acknowledged accommodation in a flat with her sister could also be obtained and funded by both parties.
The Court has to consider in these provisions as in the child support provisions the income, assets, and earning capacity of the parties.

The applicant is not currently paying any money towards support for [Y] but has been for [X]. The respondent has a greater income than the applicant, but the applicant's asset position is superior to the respondent's as the Court has already set out in these reasons.
On balance and on the information available to the Court, the parties should share in equal proportion in the support of the adult children including [Y] and therefore it is proper that there be an order they should each contribute 50% of the costs of any flat [Y] shares with [X].

Issues arising from hearing

As set out earlier in these reasons the applicant was given leave to re-open the case for the reasons given in Parker & Jacks [2009] FMCAfam 290 on 19 March 2009.[23] The applicant’s submissions filed 7 May 2009 set out the background that led to him filing the application in a case.[24] At paragraphs 68-74 of those submissions the position of the applicant was:
[23] Parker & Jacks (No.1) [2009] FMCAfam290
[24] Paras.61-65
“68.The Wife and her legal advisers deliberately misled the Court in concealing the evidence of the Writ and settlement. In the Affidavit filed on her behalf and in viva voce evidence the Wife swore that she paid the school fees post 2003 from her income, the assistance of her parents and by utilising scholarships. No mention was made of the settlement.
69. Ms Jane Curtis, the solicitor for the Wife in these proceedings was also the solicitor for the Wife in the negligence proceedings.
70. A legal practitioner’s duty to the Court is paramount. It overrides any duty owed by the client. See Giannerelli and Rake (1988) 165 CLR 543 at pages 555 to 556. As Parker J. said in Kyle and The Legal Practitioner’s Complaints Committee (1999) WASCA 115 at 66:
“The duty of Counsel not to mislead the Court in any respect must be observed without regard to the interests of the Counsel or of those whom the Counsel represent. No instructions of the client no degree of concern for the client’s interests can override the duty which Counsel owes to the Court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by Counsel is essential to maintain and justify the confidence which every Court rightly and necessarily puts in all counsel who appear before it.”
71.His Honour Maxwell P (with whom Callaway and Chernov JJA agree, made a similar observation in Gus v. The Law Institute of Victoria Limited (2006) VSCA 88 at paragraph 39:
“It is difficult to overstate the importance to the administration of justice of the paramount duty of a legal practitioner not to mislead the Court. Where there is any conflict, or risk of conflict, between a duty and what the practitioner perceives to be his/her duty to the client, the duty to the Court must always prevail.”
72.It is a basic precept of the legal profession that practitioners owe a duty of honesty and candour to the Court. It is the general duty of lawyers not to mislead a Court by stating facts which are untrue or mislead as to the true facts, or conceal facts which ought to be drawn to the attention of the Court or knowingly permit a client to deceive the Court. See Rondel v. Wardley (1969) 1 AC 91, Unioil International Pty Ltd v. Deloitte Touche Tohmatsu (No. 2) (1997) 18 WAR 190 at 193 and Pyle and the Legal Practitioners Complaints Committee (1999) WASCA 115.
73. The non-disclosure by the Wife in her affidavits of evidence, affidavit of documents and viva voce evidence of the negligence claim and subsequent settlement was not an inadvertent non-disclosure. It was a non-disclosure of a highly relevant matter. Apart from the application for adult child maintenance for [Y] this whole case was about private school fees and in particular who in all the circumstances should be responsible for their payment. The fact that in late 2005 the Wife received $35,000 as damages for “one half of the school fees for the attendance of the parties children at [G] School” and then adopts the position in these proceedings that notwithstanding having received those moneys the Husband should be solely responsible for the payment of [Z]’S school fees at [G] School for the years 2007 to 2012 inclusive absolutely make the proceedings and subsequent settlement highly relevant. The Wife and her legal advisers must have known they had an obligation to inform the Husband of the proceedings and subsequent settlement. It is untenable that the Wife and her legal advisers adopted the position that these proceedings were irrelevant and as such did not require to be disclosed.
74.During the hearing on the 17^th March 2009 Counsel for the Wife submitted that the Wife had complied with her obligations as to full and frank disclosure in that she discovered “2 lines in a bank statement”. At the time it was submitted on behalf of the Husband that that was a ludicrous submission. That fact that such a submission was made, the fact that the Wife through her legal advisers in correspondence (letter from Jane Curtis dated 27/11/2008), her Response filed 10 December 2008 and the submissions made on her behalf of by Counsel on 17 March 2009 and her viva voce evidence on 17 March 2009, all lead to the conclusion that the Court in the hearing on the 5^th November 2008 was deliberately misled. There is no other conclusion that the Court could or should draw.”
There were no submissions filed in reply by the respondent addressing these issues.
Both parties had sought costs. In the circumstances, aside from making the necessary orders to give effect to these reasons, there will be directions for the respondent and her solicitor to (separately) file submissions addressing the above issues regarding their conduct in these proceedings and why an order for costs (and any other necessary orders) ought not be made against either (or both of them) in relation to the above issues associated with these proceedings.

Conclusion

For these reasons there will be orders as set out at the beginning of these reasons for decision.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM

Associate: Rachelle Lombardo

Date: 22 July 2009