FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEAKE & COUSINS | [2016] FCCA 2856 |
| Catchwords: FAMILY LAW – ENFORCEMENT – Mother’s Application seeking to enforce alleged outstanding payments owed to her by the Father pursuant to Order 8 of the Orders made by consent on 26 June 2014. Held – Father is not liable for half of the enrolment fees for the parties’ six year old son as the child was enrolled without his consent – Father is required to payment for half of the cost of the child’s school psychologist – Father also to make payment of half the child’s gap medical and dental costs upon being provided receipts with details of any rebates previously received. FAMILY LAW – COSTS – Where the Father makes an application for costs of and incidental to these proceedings – directions made for the filing of written submissions and a supporting affidavit. |
| Legislation: Child Support (Assessment) Act 1989, ss.98E, 116(b), 117, 118 Federal Circuit Court Rules 2001, r.21.01 |
| Cases cited: Hides & Hatton (1997) FLC 92-759 |
| Applicant: | MS PEAKE |
| Respondent: | MR COUSINS |
| File Number: | MLC 4941 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | 1 September 2016 |
| Date of Last Submission: | 1 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Not Applicable |
ORDERS
All previous Child Support Departure Orders be discharged.
Pursuant to section 118(1) of the Child Support (Assessment) Act 1989 (Cth) the Father pay the following by way of financial support of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2010 (“Y”) and such sum not be credited against any Child Support Assessment issued in relation to X and Y:
(a)one half of any medical and dental gap expenses for X and Y’s treatment and procedures that the parties have agreed to prior to such treatment or procedures taking place.
The Mother’s Application for a Child Support Departure Order be otherwise dismissed.
For and by way of enforcement of Order (8) of the Orders made
24 June 2014, upon the Mother providing the Father with receipts for the total payment of the expenses contained herein together with details of all private health rebates paid to her in respect to such payments, the Father pay to the Mother the sum of $527.16 being his share of the following expenses:
Expense
Date
Amount owing by Father
Dr A, paediatrician
07/10/2014
$50.33
Dr K, paediatrician
07/10/2014
$25.00
Dr J, child psychologist
20/11/2014
$117.00
(omitted) School
grade 2 supply list2015
$34.20
Y’s speech pathology fees
12/05/2015 16/06/2015 01/07/2015 28/07/2015 25/08/2015 08/09/2015 31/10/2015 31/10/2015
$60.00 $8.13 $32.50 $32.50 $32.50 $32.50 $70.00 $32.50
Total:
$527.16
In the event the Mother has not sought a rebate in relation to the expenses…
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- Peake and Cousins [2016] FCCA 2856
- Case
- [2016] FCCA 2856
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the grounds for a child support departure order were satisfied, and whether the Father was liable for certain alleged outstanding payments, specifically half of the enrolment fees for the parties' son, half of the costs for the child's school psychologist, and half of the child's gap medical and dental costs. The court also considered the Father's application for costs.
Judge Bender dismissed the Mother's application for a departure order, finding that the grounds were not satisfied. Regarding the enforcement application, the court held that the Father was not liable for half of the enrolment fees as the child had been enrolled without his consent. However, the Father was ordered to pay half of the costs for the child's school psychologist and half of the child's gap medical and dental costs, provided receipts and details of any rebates were supplied. Directions were made for the filing of written submissions and a supporting affidavit concerning the Father's application for costs.
Orders
Orders of the court
1.
All previous Child Support Departure Orders be discharged.
2.
Pursuant to section 118(1) of the Child Support (Assessment) Act 1989 (Cth) the Father pay the following by way of financial support of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2010 (“Y”) and such sum not be credited against any Child Support Assessment issued in relation to X and Y:
(a) one half of any medical and dental gap expenses for X and Y’s treatment and procedures that the parties have agreed to prior to such treatment or procedures taking place.
3.
The Mother’s Application for a Child Support Departure Order be otherwise dismissed.
4.
For and by way of enforcement of Order (8) of the Orders made
24 June 2014, upon the Mother providing the Father with receipts for the total payment of the expenses contained herein together with details of all private health rebates paid to her in respect to such payments, the Father pay to the Mother the sum of $527.16 being his share of the following expenses:
Expense
Date
Amount owing by Father
Dr A, paediatrician
07/10/2014
$50.33
Dr K, paediatrician
07/10/2014
$25.00
Dr J, child psychologist
20/11/2014
$117.00
(omitted) School
grade 2 supply list
2015
$34.20
Y’s speech pathology fees
12/05/2015 16/06/2015 01/07/2015 28/07/2015 25/08/2015 08/09/2015 31/10/2015 31/10/2015
$60.00 $8.13 $32.50 $32.50 $32.50 $32.50 $70.00 $32.50
Total:
$527.16
5.
In the event the Mother has not sought a rebate in relation to the expenses set out above, the Father shall be at liberty to seek rebates through his private medical insurance and in the event he receives any rebates he shall pay half of same to the Mother.
6.
In the event the Father is seeking orders that the Mother pay his costs of the Departure Application and/or Enforcement Application, by 4:00pm on 7 December 2016 the Father provide to the Court and to the Mother written submissions and a supporting affidavit on the question of costs.
7.
No later than 14 days after the receipts of the Father’s written submissions on the question of costs, the Mother provide to the Court and to the Father answering submissions on the question of costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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