Rittman and Rittman

[2010] FamCA 798

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN [2010] FamCA 798

FAMILY LAW – PROPERTY – Interim proceeding – Partial property settlement distribution by consent – Application in a case seeking for school fees to be paid in advance from trust funds – Where the father alleges there was unilateral re-enrolment to the school – Whether the child should attend the current school – Who should be liable for the fees if the child remains at the school – School fees will not be paid in advance – Question of which school to be addressed at the trial

APPLICANT:

Ms Rittman

RESPONDENT:    Mr Rittman

INDEPENDENT CHILDREN’S LAWYER: Mr Carter, Solicitor

FILE NUMBER:    BRC 2571 of 2009

DATE DELIVERED:    24 August 2010

PLACE DELIVERED:    Brisbane

PLACE HEARD:   Brisbane

JUDGMENT OF:     Barry J

HEARING DATE:    24 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:    Mr Galloway of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE RESPONDENT:    Pippa Colman & Associates

SOLICITOR FOR THE RESPONDENT: Mr Page, Solicitor of Harrington Family Lawyers appearing for the Respondent Husband

Orders

Property Issues

IT IS ORDERED BY CONSENT THAT:

1. By way of partial property settlement distribution, the Wife’s solicitors cause to be paid from their trust account to:

   a. the Husband the sum of $100,000, such sum to be paid to Harrington Family Lawyer’s Trust Account; and

   b.the Wife the sum of $100,000, such sum to be paid to Pippa Colman and Associates’ Trust Account,

   with the categorisation of such distribution to be further determined by the trial Judge.

IT IS FURTHER ORDERED THAT:

1. The Mother and Father’s legal representatives within twenty-one (21) days to provide to the Court and to each other, particulars of all costs and outlays expended on legal fees to date together with an estimate of future fees in the event the matter proceeds to a five (5) day trial.

2. Orders 1(a) and 1(c) sought in the Wife’s Application in a Case filed 22 July 2010 are dismissed.

3. Orders (3) and (4) sought in the Husband’s Response to an Application in a Case filed 17 August 2010 are dismissed.

4. Costs reserved to the trial of these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Rittman & Rittman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2571 of 2009

MS RITTMAN

Applicant  

And

MR RITTMAN

Respondent

REASONS FOR JUDGMENT  

1. There is an air of unreality about this litigation.  The parties are hell-bent on Rolls Royce legal service, hell-bent on Rolls Royce education for their older child, when neither has a reliable income stream, and what assets they do have, in modern terms, could be described as relatively modest.  Relatively modest after one deducts the legal fees, which currently are estimated at $200,000 each side.  They are lining up today, by consent, for me to release a further $100,000 to keep the fires burning.  It is your money, spend it how you like.  If you want to spend it on lawyers, there will be a time for regret and recriminations later in your life when you will ponder back and say, “Why on earth did I allow that situation to develop.”

2. The matter is set down for a five day trial before me, commencing on 8 November.  Five day trials are expensive.  That is about two and a half months away.

3. It appears that the parties separated in about January 2009.  Litigation commenced on the application of the mother two months later in March and litigation has continued unabated since that time.

4. As I have noted, I will be making consent orders that a further $100,000 be released. 

5. I will be making an order that there be compliance with the rules by the legal representatives so that they disclose to the court, and to the other side, particulars of legal fees and outlays incurred by the parties.

6. I do not propose to classify the $100,000, which has been distributed by consent as what used to be called as a “Barrow Order” in the southern states or a “Hogan Order” in Queensland.  It is not going to be classified as security for costs.  I will classify it as a partial property settlement distribution with the amounts to be treated by the trial judge in the trial judge’s discretion.

7. I would not want the parties, or a citizen in the court, to assume that the payment of, say, $600,000 on litigation expenses is considered by the Bench to be reasonable.  I may have stronger words to say when full particulars have been supplied.

8. The only asset of the parties is the monies sitting in the trust account of the wife’s solicitors, which is a little over $1 million.  As I have said, there has been a distribution previously of $220,000 to the wife and $170,000, I think, to the husband.

9. That money in the trust account is the balance of the proceeds of the sale of the former matrimonial home at N.

PAYMENT OF SCHOOL FEES

1. The parties have two children.  L attends a school in Melbourne, K College.  It is a boarding school.  She is on a partial scholarship.  She is in year 10.  The school fees, taking into account the scholarship which is about $10,000 in value, are $35,000 a year.  Without the scholarship the school fees are $45,000 a year.  Now, I do deal, from time to time, with school fees and boarding fees for schools throughout Australia, and it would seem to me that this has to be bordering on one of the most expensive schools in Australia.

2. The breakdown of the fees is set out in Annexure 1 to the wife’s affidavit.

3. Before me today the wife has filed a form 2 application in a case filed on the

   
   

   22 July 2010 seeking the following orders that within 14 days the wife’s solicitors cause to be paid from their trust account as follows:

   a)To K College, the sum of $67,740.60 for payment of school fees for the years 2011 and 2012.

   b)To the wife, the sum of $100,000.  Such sum to be paid to Pippa Colman & Associates’ Trust Account.

   c)To Terry White Chemist, N, the sum of $1843.61.

4. In support of the application for the school fees payment, the mother says at paragraphs 8 and 9 of her affidavit, filed in conjunction with the application filed on the 22 July under the subheading “[L’s] School Fees” paragraph 8 –

   The child [L], born […] December 1994, is a boarder on an academic scholarship at [K] College, [Melbourne], Victoria.  [L] has been there since the beginning of year 9 and is currently in year 10.  Her aspiration is to become a brain surgeon.  As set out at paragraphs 41 to 43 of my affidavit filed 27 April 2009, [L] auditioned for [K] College in 2008 after her father drove her to the audition and supported her.  Her father and I signed the enrolment forms for her to attend.

5. There is an issue in dispute here because the husband says whilst he originally signed the enrolment form, he later cancelled the enrolment and it was the applicant who unilaterally re-enrolled the child at this college.  Clearly, issues of a child’s education, absent an order of the court, are a matter of joint responsibility.  It is an issue that will have to be considered as to the appropriateness of the wife’s conduct if the matter proceeds to trial.

6. In paragraph 9 of her affidavit, she says:

   I will not have the capacity to meet [L’s] school fees for 2011 and 2012 until funds are released to me as part of the property settlement.  The matter is set down for a five day trial commencing 8 November 2010.  The uncertainty about whether and when funds will be available for [L] to continue her schooling at [K] College is making her anxious at a time when she is already experiencing anxiety about her subjects and her marks.  I am concerned that ongoing anxiety will impact on her marks in year 11 and year 12.  If [L’s] school fees are paid for years 11 and 12, she will benefit from the certainty this will bring.

7. The liability for future school fees is clearly an issue flagged in the property settlement proceedings.  As I have noted, neither party is in receipt of a reliable income.  Apart from the school fees, sending a child from Queensland to Melbourne obviously involves airfares and associated expenses.

8. The husband disputes that the parties can afford to keep L at this school.  He contends that if the child is to remain at that school the wife should be solely liable for the fees, but he goes further than that and asserts that there is a private college in the Sunshine Coast region, which is a perfectly acceptable school, and the child can attend there at a fraction of the expense.

9. So effectively at the hearing, which involves both children’s issues and property settlement issues, there are two educational issues to be determined:

   a)Should L attend this particular school and; 

   b)If she is to attend that school or any other school, in what proportion should the parties bear responsibility for the school fees.

10. On the available evidence before me, I see no reason why the school fees need to be paid in advance. 

11. In the event that I was to so rule, counsel for the wife sought an order that a distribution, or advanced distribution to the wife be made of $170,000 and $100,000 to the husband, and the wife would give an undertaking that she would pay the fees to years 2011 and 2012.

12. Counsel, quite properly pointed out, that it is the parties’ money and that even if the court made orders in accordance with the wife’s contention that the assets be divided 75/25 in her favour, there would still be ample money to pay these school fees, whoever was to be responsible.

13. The difficulty with that course is that it locks the husband in to a situation where he can no longer argue, as he seeks to do, that the child should in fact be attending another school.  It seems pointless when the school fees have been paid.  One doesn’t know whether the school will be prepared to give a reimbursement or not.

14. I do not see any need to pay the school fees in advance.  The school is certainly not pressing for it and the mother can assuage L’s concerns about that in an appropriate manner I would have thought.

15. The chemist account is a minor amount in the whole scheme of things, but I don’t propose to order the payment of the account.  It has been outstanding now since January 2009, seemingly.  Many of the items seem extraordinary.  I won’t go into the particulars of it at this point in time, but the items were expended some 10 days after separation, I’m informed.  Maybe the liability will be joint.  It may be that there would have to be some scrutiny by the court as to the expenditure for the chemist fees, but I am not going to order that today.  Maybe one of the parties could pay it and argue that they should be reimbursed in the property settlement proceedings.

16. For similar reasons, the husband seeks reimbursement for an expense of $3800 that he was put to for placing the N property in a fit state for sale.  That hasn’t been quantified, as I understand it.  The parties can agree that that was a reasonable expense and put that fact before me at the hearing or the husband can make out his case at the trial.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  24 August 2010