SOMERS & SOMERS
[2014] FCCA 128
•28 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOMERS & SOMERS | [2014] FCCA 128 |
| Catchwords: CHILD SUPPORT – Child Support Agreement – Application for enforcement – where some payments already made – whether agreement is a binding child support agreement – where some amounts have been paid by the Respondent – whether interest should be payable. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.80C, 80CA, 80E, 80F, 139, 151B, 80G |
| Somers & Somers [2013] FCCA 162 Somers & Somers (No.2) [2013] FCCA 1992 |
| Applicant: | MS SOMERS |
| Respondent: | MR SOMERS |
| File Number: | SYC 3026 of 2008 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 11 November 2013 |
| Date of Last Submission: | 11 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 January 2014 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | KDB Holmes |
ORDERS
The Respondent is to pay to the Applicant the sum of $7,256.00 by way of monies due under a Child Support Agreement entered into between the parties on 2 November 2011.
The Respondent is allowed one (1) month to pay.
Any Application for costs is to be made within twenty-eight (28) days.
IT IS NOTED that publication of this judgment under the pseudonym Somers & Somers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3026 of 2008
| MS SOMERS |
Applicant
And
| MR SOMERS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother for enforcement of payments claimed to be due under a child support agreement entered into by the parties. An amount of $42,280.00 has already been paid by the Respondent father, who denies that any further amounts are outstanding.
Background
The history of litigation between the parties was set out in some detail in paragraphs [23] to [48] of an earlier decision, Somers & Somers[1].
[1] [2013] FCCA 162
In brief, the parties were married on (omitted) 1989. They separated on (omitted) 2004 and were divorced on 24 March 2006.
There are three children of the marriage:
a)X, born (omitted) 1993;
b)Y, born (omitted) 1996; and
c)Z, born (omitted) 1999.
X is now an adult.
The parties entered into a Child Support Agreement on 2 November 2005. The Agreement was registered with the Child Support Agency on 14 June 2006.
The Applicant commenced proceedings to enforce the Agreement on 12 March 2010 by filing an Enforcement Summons, seeking payment of an amount of arrears in the sum of $14,929.60 and continuing.
The Respondent filed an Application in a Case on 5 May 2010, seeking:
a)a declaration that the Child Support Agreement had been terminated;
b)orders enabling an accounting of monies overpaid by the Respondent to the applicant;
c)an order requiring the Applicant to repay to the Respondent the amount of the overpayment;
d)a stay of the Enforcement Summons; or
e)in the alternative, the dismissal of the Enforcement Summons.
On 3 May 2013, the Court declared:[2]
(1) The Court declares that the Child Support Agreement entered into by the Applicant and the Respondent on 2 November 2005 remains in force in respect of the children Y and Z.
(2) The Court declares that the Child Support Agreement entered into by the Applicant and the respondent on 2 November 2005 has been terminated in respect of X with effect from 15 March 2011.
[2] Somers & Somers [2013] FCCA 162
The parties were ordered to file and serve affidavits relating to the claimed arrears and in respect of any claim for costs. On 17 June 2013 the Respondent was ordered to pay to the Applicant the sum of $42,280.00 on account of nanny costs within seven days.
A hearing took place on the subject of costs on 5 August 2013. On 11 November the Respondent was ordered to pay the Applicant’s costs fixed in the sum of $23,993.89.[3]
[3] Somers & Somers (No 2) [2013] FCCA 1992
The Applicant filed an Application in a Case on 25 October 2013, returnable on 10 December 2013. In that application she sought declarations that:
a)the Child Support Agreement is a transitional binding child support agreement;
b)that clause 3.12, 4.4, 4.9 and 4.11 of the agreement are binding and enforceable between the parties;
c)that the agreement be enforced as if it were an order of the Court.
The Application also sought Orders that:
a)The Respondent should pay to the Applicant the following sums within 28 days:
i)$58,856.00 for the cost of employing a nanny less the sum of $42,280.00 paid in June 2013, leaving a balance of $16,576.00;
ii)The sum of $3,520.00 for computers for the children;
iii)The sum of $6,300.00 for tutoring services for X;
iv)Interest in the sum of $19,094.90; and
v)Costs on an indemnity basis.
b)A child support Departure Order under the provisions of s. 139 of the Child Support (Assessment) Act 1989 (Cth) in respect of the parties’ two younger children; and
c)Costs “on an indemnity/solicitor/client basis”.
The Application in a Case was supported by an affidavit of the Applicant of 25 October 2013. The Application was returnable on 10 December 2013 but was brought forward for mention on 11 November.
On 11 November 2013 the parties entered into Consent Orders stating:
1. Pursuant to s.151B of the Child Support (Assessment) Act 1989 the Child Support Agreement between the parties dated 2 November 2005 will continue in force in respect of each of the children, Y born (omitted) 1996 and Z born (omitted) 1999 until the last day of the secondary school year in which each of the children turn 18.
2. In relation to the Mother’s Application in a Case filed 25 October 2013:
2.1 The parties will attend mediation with an agreed mediator and the costs of that mediation will be shared equally between the parties in the first instance.
2.2 The Mother will file an Amended Application in a Case by 25 November 2013;
2.3 The Father will file his Response to an Application in a Case by 9 December 2013.
No amended Application or Response to an Application in a Case has been filed.
Hearing
The hearing took place on 11 November 2013.
The Applicant relies on the following:
a)her affidavit of 24 May 2013;
b)her affidavit of 8 July 2013;
c)(presumably) her affidavit of 25 October 2013;
d)the affidavit of Ms I of 27 August 2011;
e)the affidavit of Mr J of 16 August 2011;
f)the affidavit of Ms A of 23 August 2011;
g)the affidavit of Ms E of 28 August 2011;
h)the affidavit of Ms E of 12 September 2013;
i)the affidavit of Mr D of an unspecified date in August 2011[4]; and
j)the affidavit of Mr S of 19 August 2011.
[4] The affidavit is witnessed by a person who described himself as a “qualified (occupation omitted)”
The Respondent relied on his affidavit of 31 May 2013.
The Applicant and the deponents to her affidavits were not required for cross-examination. The Respondent gave oral evidence and was cross-examined by the Applicant. The following documents were tendered and admitted into evidence:
a)A Notice to Admit Facts;
b)An email from the Respondent to the Applicant dated 16 May 2008;
c)An email from the Respondent to the Applicant dated 24 May 2009;
d)An email from the Applicant to the Respondent dated 28 February 2008; and
e)A chain of emails between the Respondent and the Applicant on 5 February 2008.
It is the Applicant’s evidence that arrears under the child support agreement amount to a total of $69,719.37.[5] This figure is made up as follows:
[5] Affidavit of Ms Somers 24.5.2013 at paragraph [32]
a)Arrears of child support at $422.80 per week totalling $3,105.00 at 4 February 2008, less paid by the Respondent on 5 February 2008 $2,569.00, leaving a balance of $536.00[6];
b)Cost of employing a nanny from November 2009 to January 2010 $2,963.45[7];
c)Amount paid to Ms A as a nanny for the week ending 4 February 2010 $530.00[8];
d)Amount paid to Ms I as a nanny for the weeks ending 12 and 19 February 2010 $1060.00[9];
e)Amount paid to Ms E as a nanny from 26 February 2010 to 15 August 2011 $43,430.00[10];
f)Amount paid to Ms E as a nanny from 15 August to 26 November 2011 $8,208.00[11];
g)Amount paid to Ms E as a nanny from 26 November 2011 to 15 March 2012 $3,171.97[12];
h)Purchase of three computers for the children $3,520.00[13];
i)tutoring expenses paid to Mr D and Mr S $6,300.00[14].
[6] Ibid at [17]
[7] Affidavit of Ms Somers 24.5.2013 at [19]
[8] Ibid at [20]
[9] Ibid at [21]
[10] Ibid at [23]
[11] Ibid at [24]
[12] Ibid at [26]
[13] Ibid at [30]
[14] Ibid at [31]
The Applicant calculates the total amount at $69,719.37 (although my own calculations bring the total to $69,719.42). However, the Applicant states in paragraph [33] of her affidavit that, in the alternative she seeks the lesser amount of $68,676.00, calculated as follows:
a)$536.00 plus $540.00 per week from 23 November 2009 to 2 December 2011 pursuant to clause 4.11 of the Child Support Agreement, making a total of $58,856.00;
b)$3,520.00 for the three computers pursuant to clause 4.8 of the Agreement; and
c)$6,300.00 tutoring expenses pursuant to clauses 3.12 and 4.9.[15]
[15] Affidavit of Ms Somers 24.5.2013 at [33]
The Applicant also claims interest in accordance with the rate set by the Family Law Rules 2004.
In her affidavit of 8 July 2013 the Applicant denies that the Respondent ceased paying the sum of $422.80 per week to her in December 2009 and asserts that the payments ceased on 19 November 2009. She states in paragraph [7] of her affidavit that the period in dispute is the period commencing 23 November 2009 until either:
a)2 December 2011 at $540.00 per week, being the actual costs of care; or
b)March 2012 at $422.80 per week.
In her affidavit of 25 October 2013 the Applicant deposes that she was made redundant and left the employ of her former employer on 15 August 2013 and has received an offer of part time employment to commence in mid-November 2013 at a gross salary of $110,000.00 per annum.[16]
[16] Affidavit of Ms Somers 25.10.2013 at [[3]-[4]
It is conceded by the Applicant that the Respondent has paid to her the sum of $42,280.00 in June 2013. Thus, the Applicant seeks the following:
a)Costs of employing a nanny from 23 November 2009 to 2 December 2011 at an actual cost of $540.00 per week plus arrears of $536.00 less $42,280.00 $16,576.00;
b)Computers $3,520.00;
c)Tutoring $6,300.00; and
d)Interest $19,094.00.
In his affidavit of 31 May 2013, the Respondent denies that he owes the amounts sought by the Applicant.
As to the claim for costs of employing a nanny, the Respondent deposed that in January 2008 he and the Applicant agreed that they would fix a set amount of $422.80 per week. He states that he paid that amount until December 2009.[17] He argues that the Applicant is now claiming an amount greater than the agreed $422.80 per week. He states:
Clause 4.11 of the Child Support Agreement expired on 2 November 2011. Therefore, I do not agree that I am liable to pay any sum paid by the Mother in relation to nanny costs during the period 2 November to 26 November 2011.[18]
[17] Affidavit of Mr Somers 31.5.2013 at paragraph[h [17]
[18] Ibid at [20]
The Respondent deposes that he does not agree that he is liable for the computer expenses claimed by the Applicant. He reiterates his earlier evidence of 3 November 2010 that the Applicant provided him with receipts for three computers, one for each child. Whilst he claimed he was not liable under the Child Support Agreement to provide computers in the Applicant’s home he offered and paid her for one computer. The children were not required by their schools to have their own individual computers. He purchased computed for the children to use at his home.[19]
[19] Ibid at [22]
The numbering on the Respondent’s departs from the usually accepted order, in that the paragraphs after 22 recommence at 15 and go through to 21.
The Respondent denies that he is liable for the tutoring expenses for X claimed by the Applicant, claiming that the school did not require X to have the assistance of a tutor.
The Respondent denies that he is liable to pay interest on the arrears, or that he should pay the Applicant’s costs on an indemnity basis.
Issues for Determination
The Applicant handed up in Court a document entitled “Issues for Determination”. In that document, the Applicant claims that those issues are (paraphrased):
a)Whether, on a construction of clauses 3.12 and 4.9 of the agreement, the payments of $6,300.00 for tutoring for X are due and payable by the Respondent and, if so, whether interest is payable;
b)Whether on a construction of the agreement the amount of $3,520.00 is payable by the Respondent for the computers, being “all educational expenses including computers” and, if so, whether interest is payable; and
c)Under clause 4.11 relating to the costs of employing a nanny to a maximum cost of $600.00 per week for a period of 6 years from the date of the agreement:
i)Is Child Support Agreement is a binding child support agreement;
ii)When did the Agreement commence?
iii)Does the Court have power to vary a binding child support agreement (see Child support (Assessment) Act 1989 (Cth), s. 80CA)?
iv)Was the agreement lawfully varied by the Respondent to reduce the sum claimed from a maximum of $600.00 per week to $422.80?
v)Has the Applicant established that she has incurred costs of $59,899.42 during the period from January 2008 to March 2012?
vi)Is it just and equitable to award the sum of $540.00 per week for the period 23 November 2009 to 2 December 2011 plus $530.00 arrears?
vii)Is the balance of $16,576.00 payable by the Respondent to the Applicant?
Those are the issues for determination claimed by the Applicant.
Submissions
The Respondent’s solicitor, Ms D, submitted that the figure of $422.80 per week was a figure put by the Respondent to the Applicant as an agreed overall figure for nanny expenses, to which the Applicant agreed. However, the Applicant is claiming arrears of expenses for nanny fees for a larger period than the 6 years referred to in the agreement.
As for the computers, it is submitted that the Respondent was not required by the agreement to provide a computer for each of the three children.
In respect of the tutoring expenses, clause 4.9 of the agreement states that the parties should agree on those expenses and:
a)It has not been established that the Respondent did agree to pay those expenses; and
b)The Respondent did not agree.
The Applicant submitted that she was seeking a declaration that the agreement is a binding financial agreement. She relies on the evidence of the various affidavits as to the amounts paid. She did not accept the Respondent’s evidence that he was not consulted about matters. She relies on the Notices to Admit Facts filed.
The Court has no power under s.80CA of the Child Support (Assessment) Act 1989 to vary the terms of a child support agreement.
She does not seek any payment for nanny fees beyond 2 December 2011.
Conclusions
In my view, the Child Support Agreement entered into by the parties on 2 November 2005 is a limited child support agreement under s.80E of the Child Support (Assessment) Act 1989. It has already been held that the Agreement is not a binding child support agreement under s.80C of the Act (Somers & Somers[20] at [106]-[107]. There was no appeal against that decision, so the finding stands under the principle of res judicata. The Agreement commenced on 2 November 2005. It remains in force in respect of the parties’ children Y and Z.
[20] [2013] FCCA 162
As a limited child support agreement, it must not be varied (Child Support (Assessment) Act 1989, s.80F). Thus, the parties are bound by the agreement until it is terminated under s. 80G.
The Date of Commencement of the Agreement
The Applicant deposed in her affidavit of 8 July 2013:
The child support agreement commenced on 2 December 2005, being the day upon which I moved out of the former matrimonial home and the date upon which the respondent commenced periodic and non-periodic payments pursuant to the Child Support Agreement (the “Agreement”).[21]
[21] Affidavit of Ms Somers 8.7.2013 at [5]
The Agreement states at clause 3.7:
This Agreement is intended by the parties to commence on the date of the Agreement.
The date of the Agreement is 2 November 2005. It commenced on that date, not on 2 December 2005.
The Costs of employing a nanny
The question of the costs of employing a nanny for the children is covered by clause 4.11 of the Agreement, which says:
The liable parent shall pay to the carer the costs of employing a nanny for the children to a maximum cost of $600.00 per week for a period of 6 years from the date of this Agreement.
The Agreement commenced on 2 November 2005. It is clear that clause 4.11 ceases to be in effect after 1 November 2011. It is not open to the Applicant to seek reimbursement of nanny expenses for any period on or after 2 November 2011.
The rate of $422.80 per week, according to paragraph [17] of the Respondent’s affidavit, represents what the Respondent asserts is an agreed figure to save the Applicant the inconvenience of making detailed calculations:
In January 2008, the Mother and I agreed, rather than having the mother detail the varying nanny costs she might incur (up to a maximum of $600 per week) that instead we would fix a set amount of $422.80 per week. At paragraph 18 of the Mother’s affidavit she acknowledges this sum was agreed. I paid this sum until December 2009.[22]
[22] Affidavit of Mr Somers 31.5.2013 at [17]
At paragraph [18] of her affidavit of 24 May 2013, the Applicant states:
(a) the Respondent paid to me an amount of $422.80 per week, making a total of $39,320.
The total costs claimed from the Respondent for this period is $NIL.[23]
[23] Affidavit of Ms Somers 24.5.2013
In this paragraph, the Applicant is not claiming any payment from the Respondent, which supports his contention that she agreed with the figure. If she did not agree, she would have claimed that an amount was still outstanding from that period. Further, the Applicant refers to the contents of paragraph [17] of the Respondent’s affidavit, although not by paragraph number, when she says at [6]:
On 19 November 2009, and not December 2009 as sworn by the respondent, the respondent ceased paying the sum of $422.80, or any sum at all, pursuant to clause 4.11 of the Agreement.[24]
[24] Affidavit of Ms Somers 8.7.2013 at [6]
The Applicant does not at any stage deny the Respondent’s contention that the parties agreed to the sum of $422.80 per week.
It is not correct to assert that the agreement by the parties on a sum of $422.80 per week constitutes an impermissible variation of the Agreement. Clause 4.11 refers to costs “to a maximum cost of $600.00 per week”. It would only be a variation to the agreement if the parties purported to rescind the clause or set a maximum figure greater than $600.00.
I am also of the view that the Applicant’s claim of $1240.00 paid (omitted) to hire a vehicle for the use of her father between 11 November and 11 December 2009 cannot be accepted, nor can her claim for $230.00 to reimburse him for his return airfare from Adelaide.
It is quite clear both from paragraph [19] of the Applicant’s affidavit of 24 May 2013 and paragraph [1] of Mr J’s affidavit of an unspecified date in August 2011[25] that he is the Applicant’s father. He is the children’s grandfather.
[25] This affidavit states that it was sworn before a Justice of the Peace at Port Adelaide Magistrates Court
It is drawing a very long bow indeed to suggest that reimbursing the children’s grandfather for his airfare to and from Adelaide and providing him with a car to use whilst in Sydney can be characterised as “the costs of employing a nanny for the children” under clause 4.11 of the Agreement.
In my view the Applicant’s claim for reimbursement of $16,576.00, being the costs of employing a nanny for the children, has not been made out.
The cost of Computers for the Children
The Applicant seeks from the Respondent the sum of $3,520.00, being the cost of purchasing a computer for each of the children. The Applicant deposed in an affidavit of 11 September 2011 that on 3 March 2008 she purchased two Apple desktop computers for X and Y, at a total cost of $3,921.00. The Respondent paid to her the sum of $2,000.00 being a part payment for the computers.[26]
[26] Affidavit of Ms Somers 11.9.2011 at [2]&[4]
On 17 December 2008 she purchased an Apple desktop computer for Z at a cost of $1,599.00. She requested reimbursement from the Respondent for that amount but no payment was received.[27]
[27] Ibid at [5]-[8]
Consequently, she seeks payment of $3,520.00.
There is no issue that:
a)the Applicant purchased the computers;
b)the total cost was $5,520.00; or
c)that the Respondent paid to the Applicant the sum of $2,000.00.
What is in issue is whether the Respondent was required to reimburse the Applicant the full cost of the computers.
It is the Respondent’s case that he is not liable to pay the full cost of computers for the children. In his email to the Applicant of 16 May 2008, which forms Exhibit 2, the Respondent said:
Computers.
I agree pay half the cost of the new Apple computers you have purchased for X and Y.
As you know I had offered to buy X a reconditioned Apple lap top (similar to the ones used in my household) for use in your house. You choose to go out and buy brand new machines. I have previously brought a Compac, IBMs and Dell machines for the kids. Further, I have provided a computer for the kids use at my home.
Whether the Respondent should be liable for the full cost of the computers for the children depends on the terms clause 4.8 of the Child Support Agreement, which says:
The liable parent shall pay or cause to be paid all education expenses in respect of the attendance by the children at a private school, including school fees, uniforms, school books, stationery, music, drama, sport, camps, excursions, computers, levies including, but not limited to, IT levies, enrolment fees and non-refundable deposits.
The clause is in very wide terms and places a considerable obligation on the Respondent. He may well have complained that the Applicant, in purchasing three new computers for the children, had taken a “Rolls Royce” approach to the question of providing the children with computers for educational purposes, but the terms of the clause are such that he is still bound to pay. It is not sufficient for him to claim, as he did, that he had provided a computer for the children to use at his home when they were there.
In my view, the Respondent is liable to reimburse the Applicant the sum of $3,520.00, being the balance of the amount due for the children’s computers.
Tutoring Expenses for X
The Applicant seeks an amount of $6,300.00, together with interest, for fees paid to Mr D and Mr S for providing tutoring for the parties’ eldest child, X.
The Applicant relies on the affidavits of Mr S and Mr D, neither of who was required for cross-examination. Thus, there is no challenge to their evidence.
In his affidavit of an unspecified date in August 2011, Mr D deposed that between May 2008 and November 2009 he provided tutoring services for X at the rate of $50.00 per hour. He was paid a total of $5,800.00 by the Applicant.[28]
[28] Affidavit of Mr D 2011 at [1]-[3]
In his affidavit of 19 August 2011, Mr S, deposed that he is a teacher by profession and in 2010 he attended the home of X and provided tutoring for him. He went on to depose:
5. I was paid by Mr Somers and Ms Somers alternately at the rate of $50 per hour.
6. Ms Somers paid me the total sum of $500 for the services provided.[29]
[29] Affidavit of Mr S 19.9.2011 at [5]-[6]
In his affidavit of 31 May 2013, the Respondent asserts that the school did not require X to have the assistance of a tutor.
In his email to the mother of 16 May 2008 (Exhibit 2) the Respondent stated:
Tutor
I understand that the current arrangements are that you have employed a tutor, Mr D, for X. He works two nights a week, for an hour each at $50 per hour. I am happy to pay this cost directly to him and to have regular contact with Mr D so as to coordinate homework in both homes. Further I would like to review this arrangement at the end of this year to assess success and suitability for subsequent years.
The Respondent stated in his email to the Applicant of 24 May 2009 (Exhibit 3):
With regard to Mr D, I said to you a year ago that I was willing to pay tutoring cost of two hours per week for X at (omitted) remains my position.
Again, whether the Respondent should pay the full amounts of $500.00 claimed for Mr S and $5,800.00 for Mr D will depend on clauses 3.12 and 4.9 of the Child Support Agreement.
Clause 3.12 states:
X has special education needs, including the need for a Teacher’s Aide. The parties shall agree upon the level of support for X with a Teacher’s Aide as required from time to time.
However, clause 4.9 says something rather different:
The liable parent shall pay or cause to be paid the costs of a Teacher’s Aide or other teaching/special needs support in respect of X.
Regrettably, the clauses seem to have been drafted without reference to each other. The difference seems to be that 3.12 is a recital whilst 4.9 appears under the heading “OBLIGATIONS”. It would follow that, from the point of view of enforcement, 4.9 must take precedence and 3.12, as a Recital, should be seen as an explanation of a fact, which is the purpose of a recital. However, it is drafted as conveying an obligation when it says “The parties shall agree upon the level of support for X with a Teacher’s Aide as required from time to time”.
Regrettably, the drafting is unsatisfactory.
Turning first to Mr S’s fees, he deposed that he was paid by the parties alternately at the rate of $50.00 per hour. He was paid $500.00 by the Applicant, for which the Applicant now claims reimbursement from the Respondent.
Both clauses 3.12 and 4.9 refer to “the cost of a Teacher’s Aide or other teaching/special needs support in respect of X”. Clearly, in Mr S, the parties did better than a Teacher’s Aide, they obtained the services of an actual Teacher from the child’s school.
It appears from Mr S’s affidavit that the parties each paid him a total of $500.00. It appears clear that clause 4.9 requires the Respondent to pay the full amount of Mr S’s fees, not just half of them.
I am satisfied that the Applicant has made out her case that the Respondent should reimburse her for the amount of $500.00 she paid to Mr S in 2010.
The case of Mr D is rather different. Mr D was not a teacher’s aide. He was a student who provided tutoring to X. There is no evidence that he had any teaching qualifications at all, unlike Mr S. The Respondent does not agree that the school required X to have the assistance of a tutor.
However, the evidence is that the Respondent agreed that he would meet the cost of Mr D’s tutoring of X for two hours a week, at $50.00 per hour. The evidence is that Mr D was paid $5,800.00 by the Applicant. There is no evidence that the Respondent did make any payments to Mr D.
The difficulty about Mr D’s evidence is that his affidavit does not explain how many hours of tutoring he actually provided to X, only that he provided those services between May 2008 and November 2009. The payments were made to him by the Applicant between 28 May 2008 and 23 September 2009. It is almost impossible to calculate how many hours were provided between those dates.
At a very rough estimate, it would appear that, if the Respondent had agreed to pay for two hours of tutoring at a cost of $100.00 per week, he would have a total liability of approximately $2,700.00. I am not satisfied that the father has any further liability for Mr D’s services than that.
The only other matter to be considered is the Applicant’s claim that there were agreed arrears of child support of $536.00 as at 6 January 2008.[30] This figure does not appear to have been challenged by the Respondent in his affidavit of 31 May 2013.
[30] Affidavit of Ms Somers 24.5.2013 at [17]
Consequently, I am satisfied that the Applicant has made out her case in respect of this amount.
Orders to be made
I am satisfied that the Applicant has made out a case that the Respondent should pay to her the following amounts:
a)The sum of $3,520.00 being the balance owing for the computers for the children;
b)The sum of $500.00 paid to Mr S for tutoring;
c)The sum of $2,700.00 paid to Mr D for tutoring; and
d)The sum of $536.00 being unpaid arrears of child support from 6 January 2008.
This makes a total due of $7,256.00. I propose to order that the Respondent should pay this sum to the Applicant.
I am not prepared to make an order for payment of interest due to the following:
a)The significant discrepancy between the amount claimed by the Applicant, a total of $26,396.00, and the amount ordered to be paid, an amount of $7,256.00; and
b)The evidence of significant payments made by the Respondent prior to the hearing, including the sum of $42,280.00 in June 2013.
I will allow one month to pay.
If there is to be any application for costs, it should be made within 28 days.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 28 January 2014
2
0