SUITER and SUITER

[2014] FCWA 40

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SUITER and SUITER [2014] FCWA 40

CORAM: CRISFORD J

HEARD: 12 & 13 DECEMBER 2013 AND 28, 29 & 30 APRIL 2014

DELIVERED : 3 JULY 2014

FILE NO/S: PTW 501 of 2008

BETWEEN: Ms SUITER

Applicant

AND

Mr SUITER
Respondent

Catchwords:

FAMILY LAW – CHILDREN – ADULT CHILD MAINTENANCE – Where the mother seeks $2,903 a month for the child pursuant to s 66L of the Family Law Act 1975 (Cth) – where adult child maintenance is sought for the period until the child completes both his undergraduate and then possible postgraduate tertiary studies or until the conclusion of the academic year in which he turns 23 – where the child is studying full-time – where the child lives with the mother and his siblings who are under the age of 18 – where the mother says the child should be allowed to live at the home with his siblings and be assisted by the father in the same manner as the other children – where both parents accept that any part-time work should not interfere with the child’s study – where it is not disputed that the father has the capacity to pay – where the father makes considerable voluntary payments to the child – where the mother has the onus of showing the Court that any payments of maintenance are “necessary” for the child to complete his education.

FAMILY LAW – CHILDREN – CHILD SUPPORT – Where the parties agreed to orders finalising proceedings and agreed the amount of child support the father was to pay – where the Court made orders in terms of a Minute prepared by the parties’ respective legal teams – where the parties are seeking changes be made to those orders in relation to child support – where the mother seeks “interpretation and redefinition” of orders – where the father does not agree with the redefinition of the orders and seeks to discharge almost all parts of the order – where the parties have had inordinate difficulties with their consent order – where the Court is called upon to consider the manner in which each party has interpreted the consent orders – where it is not possible for the Court to define the orders with the precision that either party wants – where the Court provides clarification of the parties’ order made by consent.

FAMILY LAW – CHILDREN – CHILD SUPPORT – JURISDICTION – Where the mother says the child support orders are to be changed pursuant to s 66S of the Family Law Act 1975 (Cth) – where the father says the orders are to discharged or varied pursuant to s 129 of the Child Support (Assessment) Act 1989 (Cth) – where the first application dealing with the support of the children sought a departure from the then current assessment issued by the Child Support Agency – Where the Court considered s 66E of the Family Law Act 1975 (Cth) and concluded that s 66S did not apply – where the Court held that the jurisdiction of the Child Support (Assessment) Act 1989 (Cth) continues with its powers exercised by this Court.

FAMILY LAW – WORDS AND PHRASES – Defining maintenance and repairs – where consideration of the case law describes the covenant to repair as not containing an obligation to make improvements but involves renewal to some extent – where work is described as a repair is a question of fact and degree.

Legislation:

Family Law Act 1975 (Cth) - s 66B, s 66C, s 66E, s 66G, s 66H, s 66J, s 66K, s 66L, s 66S
Child Support (Assessment) Act 1989 (Cth) - s 129

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Anderson

Respondent: Mr F Castiglione QC

Solicitors:

Applicant: DCH Legal Group

Respondent: G G Legal

Case(s) referred to in judgment(s):

Apoda & Apoda and Anor [2013] FamCA 265

Clowes v Bentley Proprietary Limited [1970] WAR 24

Kirkpatrick v Kotis (2004) 62 NSWLR 567

W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1965) 115 CLR 58

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1On 25 August 2010 after nine days in court [Ms Suiter] and [Mr Suiter] agreed to orders finalising what is commonly referred to as a property settlement. They were also able to agree the amount of Child Support Mr Suiter was to pay for their four children who were then aged between seven and 15 years. The Court made orders in terms of a Minute which had been prepared by the respective legal teams of the parties.

2On the same day the parties entered into a Financial Agreement pursuant to s 90D of the Family Law Act 1975 (Cth) (“the Act”). That Agreement was said to “constitute a full and final determination of all claims which either party may now or in the future have against the other for periodic or lump sum payments of spousal maintenance in accordance with s 72 and s 74 of the Act.” In essence, the Agreement provided for Ms Suiter to be paid $500,000.

3On 14 January 2013 Ms Suiter filed an application to enforce order eight of the consent orders made 25 August 2010. Relevantly here, order eight says:

Child support

…

For such period as 26 Como Park or such other residence of which the wife is the sole registered proprietor (“the replacement residence”) shall remain the principal place of residence of the wife and not less than one dependent child of the marriage under the age of 18 years, the husband pay or cause to be paid, as and by way of further child support:

(a)All fixed outgoings on 26 Como Park or the replacement residence and being local authority rates and taxes and rates and taxes paid for the utilities to the property;

(b)Premiums for the continued insurance of the house and contents;

(c)The cost of all and any necessary and required maintenance and repairs to the property and surrounds and which are subject of prior agreement between the parties; and

(d)Notwithstanding any other order herein, whilst 26 Como Park shall remain the principal place of residence of the wife and not less than one dependent child of the marriage under the age of 18 years all fixed outgoings on 26 Como Park and being local authority rates and taxes and rates and taxes paid for the utilities to the property and the cost of all and any necessary and required maintenance and repairs to the property and which are subject of prior agreement between the parties.

4A response to this application was filed by Mr Suiter on 8 April 2013. He disagrees with Ms Suiter’s interpretation of “necessary and required maintenance and repairs”. He seeks the discharge of all the orders (being orders six and eight) in relation to child support. Order six deals with periodic child support including education and health costs. This issue of periodic child support was the subject of an agreement brokered during the trial and orders were made by consent on 29 April 2014. Order eight remains in issue.

5In April 2013 the parties’ eldest son, [Kevin], turned 18 years of age. In accordance with the parties’ agreement of 25 August 2010 the husband had been paying child support for the four children at the rate of $7,368 each month. When Kevin turned 18 the husband reduced this proportionately to $5,526 each month for the three remaining children under the age of 18. Given this reduction, on 11 July 2013 Ms Suiter filed an application for adult child maintenance in relation to Kevin’s support whilst he attends university.

6On 19 July 2013 Mr Suiter filed an undertaking that he would continue to pay for some of Kevin’s requirements until 30 December 2015 to include:

•his university tuition costs for each year until he completes his undergraduate degree, provided he passes each unit each semester;

• his books and stationery costs associated with his university course;

•his driver’s licence each year until 31 December 2015;

•his vehicle costs, including services, petrol, registration and insurance until 31 December 2015;

• his mobile telephone costs until 31 December 2015;

• his private health insurance costs until 31 December 2015;

• his gap medical expenses until 31 December 2015; and

•the sum of $250 per week in pocket or spending money until 31 December 2015.

7He undertook to use his best endeavours to encourage Kevin to pay Ms Suiter a reasonable contribution towards his costs of living in her home from the $250 pocket money he receives.

8At a Court event on 23 July 2013 it was agreed that both the wife’s application for enforcement of the orders of 25 August 2010 and her application for Kevin’s maintenance be heard together.

Issues before the Court

9The Court is now asked to determine the amount, if any, of adult child maintenance Mr Suiter should pay for Kevin. Mr Suiter seeks a dismissal of this application on the basis of the voluntary payments he already makes to Kevin.

10Ms Suiter wants to have the costs of certain repairs and maintenance carried out on her home at 26 [Como Park] to be paid (or if already paid, reimbursed). On the other hand Mr Suiter seeks that these orders in relation to child support be varied.

11It is common ground between the parties that there is uncertainty in relation to some aspects of the child support orders and these need to be redefined with more precision. However, Ms Suiter maintains there is no reason to completely vary the orders given the parties earlier agreement. She says there is no real change in her or the children’s circumstances. She seeks clarification of the orders. Although Mr Suiter acknowledges he has the financial capacity to comply with the orders, he says they should be varied, in part, due to a change in Ms Suiter’s circumstances such that she can also contribute to the children’s expenses.

Adult Child Maintenance

12A Court is prohibited from making an order for the payment of maintenance in relation to a child who is 18 years or over unless one of two possible preconditions set out in s 66L(1) of the Act is met. In this case Ms Suiter says that the relevant precondition is the desire of Kevin to complete his university education.

13In Cosgrove & Cosgrove (1996) FLC 92-700, Warnick J considered that section 66L of the Act gives the Court a discretion as to whether a maintenance order should be made in respect of a child over eighteen years of age. This is to be dealt within the context of the other provisions of Division 7 and, in particular, s 66G, which empowers the Court to make any child maintenance order it considers proper.

14Section 66B sets out the objects of the division. The principal object is to ensure that children receive a proper level of financial support from their parents. More particularly the Court is to ensure that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents. Both parents are to share equitably in the support of their children.

15Section 66C places the primary duty of maintaining children upon the parents of those children. This duty has priority over all other commitments a parent has other than those commitments necessary to support that parent or any other children they have a duty to maintain.

16Section 66H sets out a two-step approach to be adopted in considering a child maintenance order.

17Firstly, the Court must consider the level of financial support necessary for the maintenance of the child concerned.

18The relevant matters to be considered are set out in specific detail in s 66J. In particular, the Court must consider the proper needs of the child concerned, bearing in mind:

•the age of the child;

•the manner in which the child is being, and in which the parents expect the child to be, educated or trained; and

•any special needs of the child concerned.

19In addition, the Court must have regard to the capacity of the child to earn or derive an income disregarding any entitlement of the child or any other person to an income tested pension, allowance or benefit.

20Secondly, the Court must determine what contribution each parent should make to the child’s financial support. The matters to be considered in regards to this second step are set out in s 66K.

21In Cosgrove & Cosgrove (supra), Warnick J noted that to be necessary, adult periodic child maintenance must not be absolutely essential for the adult child to complete his or her education. The basis of its necessity must be more than morally or socially desirable. The particular circumstances must be viewed objectively.

22In some cases involving adult child maintenance, there may be some means by which an adult child could finance or help finance his or her education.

23Ms Suiter seeks $2,903 a month for Kevin. This is to be paid until such time as he completes both his undergraduate and then possible postgraduate tertiary studies or until the conclusion of the academic year in which Kevin turns 23, whichever is the sooner. That academic year would be 2018.

24Ms Suiter provided a costs analysis of the household to show how that sum is calculated. It was attached to her financial statement sworn 11 July 2013. It is riddled with errors both against and in favour of Ms Suiter’s position. A slightly modified version is set out here. It does not take into account mathematical errors.

Item	Description	Total Monthly Amount	Kevin’s proportion	Other household occupants	% for Kevin	Paid by
1	Bigpond & Telstra Package	$127.00	$38.10	$88.90	30%	Ms Suiter
2	Synergy	$428.19	$94.20	$333.99	30%	Ms Suiter
3	Alinta	$175.83	$39.07	$136.76	30%	Ms Suiter
4	Cleaning & ironing	$928.00	$185.60	$742.40	20%	Ms Suiter
5	Gardening (estimate)	$300.00	$50.00	$250.00	20%	Currently Ms Suiter pays
6	Lawn mowing (estimate)	$215.00	$43.00	$172.00	20%	Currently Ms Suiter pays
7	Pool	$198.67	$39.73	$158.94	20%	Currently Ms Suiter pays
8	Food & household	$2,688.00	$298.67	$2,389.33	27%	Ms Suiter
9	Water usage	$42.00	$8.40	$33.60	20%	Ms Suiter
10	Clothing/shoes	$235.83	$235.83	N/A	100%	Ms Suiter
11	Non prescribed health, dental, sundries and toiletries	$150.00	$150.00	N/A	100%	Ms Suiter
12	Overseas holiday	$4,420.00	$736.67	N/A	100%	Ms Suiter
13	Gifts for Kevin	$365.00	$365.00	N/A	100%	Ms Suiter
14	Petrol	$20.00	$20.00	100%	Ms Suiter
15	Parking money	$20.00	$20.00	N/A	100%	Ms Suiter
16	Entertainment	$80.00	$80.00	N/A	100%	Ms Suiter
17	Vet costs	$80.00	$80.00	N/A	100%	Ms Suiter
18	Monthly totals	$10,473.53	$2,484.27
19	Kevin’s costs per week	$621.07
20	Kevin’s costs paid by Ms Suiter	$600.07
21	Kevin’s weekly costs sought	$670.07

25Examples of the mathematical errors in the above schedule can be found firstly at line eight. The total monthly amount allocated for food and household is $2,688.00, Kevin is allocated 27 per cent of that amount which equates to $725.76. However, the figure in the schedule is incorrectly listed as $298.67. Secondly, the amount given in the schedule as Kevin’s proportion in accordance with the percentage allocation is also incorrect in lines two, three and five. Thirdly, at line 12 the total monthly amount listed for “Overseas holiday” is $4,420.00, Kevin’s proportion of that amount is said to equate to $736.67. The corresponding percentage for Kevin is listed as 100 per cent. This is obviously incorrect, 100 per cent of $4,420.00 would be $4,420.00. On the figures provided the percentage for Kevin would actually be 16.67 per cent.

26Ms Suiter says the summary was averaged over a six month period and calculated by her based on how much time each family member spends at home. It relates to what and how much each family member consumes. For any expenditure in relation to the entire family Kevin is generally allocated a 20 per cent share. This divides the share equally between Ms Suiter, Kevin and his siblings. In relation to utility costs Ms Suiter says that as Kevin is at home more often he therefore uses a greater amount of utilities than the other household occupants and has been allocated a 30 per cent share. Kevin and his brother are described as eating a greater amount of food than their siblings and Kevin has been attributed a 27 per cent share of the food costs.

27The amount sought, based on erroneous figures, is $670.07 per week or $2,903 each month. This sum does not include the cost of items that Mr Suiter pays and which are not included in the schedule. I have proceeded on the basis that the total monthly allocation by Ms Suiter for the whole family, at least, is correct.

28No account is taken in the schedule of the sixth member of the household, Mr [Daniel Cross], Ms Suiter’s de facto partner, who resides with her and the children.

29Further, Ms Suiter seeks the following further payments be made by Mr Suiter:

•All fees and charges for the tertiary tuition of Kevin;

•All fees and charges for the extracurricular educational, sporting activities (including memberships) of Kevin;

•Premiums for the continued medical insurance of Kevin at a rate equivalent to that currently provided;

•The costs of all reasonable and necessary medical, dental and hospital treatment for Kevin and not paid pursuant to the terms of insurance provided by the fund by which he is to remain a member;

•The capital and usage costs of any mobile telephone or any other communication device that the Husband provides; and

•All service costs, repair costs, insurance costs and premiums, registration costs and licence fees of Kevin’s motor vehicle.

30Most of these are presently covered by Mr Suiter’s undertaking to the Court filed 19 July 2013.

31Ms Suiter accepts that Mr Suiter pays, inter alia, all household Foxtel accounts, Kevin’s mobile costs, the property land rates and taxes, household ADT Security costs, Kevin’s motor vehicle expenses, insurance premiums, HECS fees and for all of Kevin’s sporting activities, including protein supplements.

32Up until April 2013 when Kevin turned 18, Mr Suiter paid an agreed amount of $461 per week (or $1,802 per month) for Kevin’s support. He also paid his education costs.

•Ms Suiter’s position

33Ms Suiter points out that Mr Suiter has not suggested he cannot afford to pay what she seeks. He has the means to satisfy, in total, the orders sought by her.

34Ms Suiter is completing a Bachelor of Arts in Interior Architecture. She deposes that this will likely be completed in November 2014 after which she would like to get part-time work. She will earn only a modest amount. The parties youngest child, [Tracey], has Achrondoplasia and faces many challenges.

35Ms Suiter wishes to have control over any money paid as maintenance for Kevin. She wants it paid directly to her and not to Kevin. She wants to cover all of Kevin’s costs by physically paying them herself out of money provided by Mr Suiter. This includes helping him choose and pay for his clothing.

36She is adamant that while Kevin is living in her household, even if he has part-time employment, she will not request or receive any contribution from him towards his household expenses. She refuses to accept a contribution from the $250 Mr Suiter provides to Kevin.

37Ms Suiter’s position is that she wishes to retain parity between Kevin and his siblings who are under the age of 18. She says there should be no distinction between them. She says that this will allow Kevin to live at home with his siblings and be assisted by Mr Suiter in the same manner as the other children. This is necessary for Kevin to feel comfortable living at home.

•Mr Suiter’s position

Mr Suiter’s contributions for Kevin are currently:

•$250 per week in accordance with the undertaking filed by him on 19 July 2013;

•$82 per month for mobile telephone;

•The cost of all sporting activities and protein powders;

•Half the cost of a personal trainer course;

•Vehicle insurance $2,881 per annum;

•Petrol costs of around $80 per week;

•Costs of vehicle servicing at $457 for the year;

•$37.60 for drivers licence;

•$454 for vehicle registration; and

•$3,964.50 for first semester university studies as well as an additional amount for books and other outgoings

38Mr Suiter bought Kevin a Subaru motor vehicle for his 18^th birthday. The on-road cost of the vehicle was about $30,000.

39Mr Suiter states that he is happy to assist Kevin financially throughout his study years, but he wants Kevin to develop independence and an ability to manage his own finances. Mr Suiter does not want to pay any money for Kevin direct to Ms Suiter. He wishes to provide funds to Kevin himself. He says he has never refused any payments Kevin has asked of him and does not intend to reduce any payments he already makes on a voluntary basis.

•Kevin’s circumstances

40Kevin currently has approximately 13 contact hours per week at the university where he is undertaking a commerce degree on a full-time basis. He sometimes listens to his lectures online at home rather than attending campus. The undergraduate degree is due to end in late 2015 and Kevin is not entirely sure at this stage whether he wants to then undertake postgraduate study. By all accounts he is doing well in his studies at the present time.

41Sometime in 2013 Kevin undertook a course to enable him to work as a personal trainer. His father and grandfather paid for him to do this course.

42In the four weeks prior to the end of the trial he had been working as a personal trainer. He had been doing eight sessions a week and had earned $525 for those sessions. This does not take into account rent he has to pay the gym where he carries out the training. At the beginning his rent was $170 for two weeks and this increased to $210. At that time he anticipated the rent would increase to a maximum of $280 each fortnight. The time spent in personal training is 15 hours a week. This does not take into account 10 minutes travel to the gym and paperwork.

Discussion

43It is not really in contention that Kevin, as a young adult undertaking tertiary study, quite legitimately requires the financial assistance of his parents. From birth he has had what most would consider a high standard of living.

44Here, and it is common ground, Mr Suiter has the means to pay what is sought. Ms Suiter does not have an income, but may in the future obtain some part-time work.

45Kevin has part-time work. Both parents accept that such work should not stand in the way of him successfully completing his studies or being able to apply himself to those studies. I do not consider his personal training work to be of a significant ongoing nature. If and when he does the work it may provide him some extra pocket money.

46Ms Suiter bears the onus of showing the Court that the payments of maintenance by Mr Suiter are “necessary” to enable Kevin to complete his education.

47Mr Suiter makes considerable payments to Kevin on a voluntary basis. He does not dispute that he is able to make the payments sought by Ms Suiter. However, by itself, this does not establish that such payments are necessary to enable Kevin to complete his tertiary education.

48The main difficulty here is the issue of who has the control over any money paid for Kevin’s maintenance. Ms Suiter wishes to completely control those funds as she does with the funds for the children under 18. Mr Suiter wishes to provide the funds to Kevin, who he says can make a contribution direct to Ms Suiter in relation to his household expenses. This will help Kevin become independent and more able to manage his finances. Unfortunately, this issue of control, as expressed by each party, reflected poorly on them and highlighted a stark difference in both personality and parenting styles.

49Ms Suiter seeks any order for adult child maintenance in a periodic amount be backdated to 12 April 2013 when Kevin turned 18. The retrospective claim was made during the course of the trial.

50Mr Suiter presented, largely, as a financially responsible father. I accept he has never refused Kevin any genuine request made of him for financial assistance. He sees any order for him to support his son as unnecessary. I accept he is unlikely to allow Kevin to suffer any disadvantage vis-à-vis his siblings, but he does expect Kevin to take on more financial management for himself now that he has turned 18. I do not see this stance as being unreasonable.

51Ms Suiter is keen to ensure that Kevin has a harmonious and stress free home life. He is a valued family member, a good role model for his younger siblings and clearly is welcome at her home. To this end she believes she should control all the payments of maintenance whilst Kevin is studying.

52I accept that it is likely she is currently paying for some of Kevin’s living expenses from funds otherwise allocated by court order to the other children. However, she steadfastly refuses to accept any payments whatsoever from Kevin from his part-time work or from funds provided to him by his father.

53I intend to make an order that Mr Suiter pay a monthly amount to cover reasonable household expenses for Kevin which I consider necessary to allow Kevin to complete his education. This takes into account the standard of living he is used to and his father’s ability to pay. I do not intend to make any order about what I consider to be costs that go to social desirability. I consider it more practical that whilst Kevin studies and lives at home his mother receives payments for his household and related family expenses.

54In order to consider what is necessary in that regard I take into account the analysis of the household provided by Ms Suiter. I also take into account that there is a further member of the household who has not been included as an occupant of the home when clearly he is.

55Mr Cross lives in the home on a full-time basis. He utilises the facilities both inside and outside the house. Any arrangement for payment he has with Ms Suiter does not take away from the fact he incurs a percentage of the utilities and outgoings. Although not of import here the payments made by Mr Suiter under the guise of child support in order eight allow Mr Cross many benefits to which he makes no contribution. The proportions in the schedule need to take Mr Cross into account.

56I have revised and corrected the mathematical errors in the schedule. I have then calculated what I consider to be the appropriate allocation to Kevin.

Item	Description	Total Monthly Amount	Kevin’s proportion	Other household occupants	Percentage for Kevin
1	Bigpond & Telstra Package	$127.00	$38.10	$88.90	30%
2	Synergy	$428.19	$85.64	$342.55	20%
3	Alinta	$175.83	$35.17	$140.66	20%
4	Cleaning & ironing	Nil
5	Gardening (estimate)	Nil
6	Lawn mowing (estimate)	Nil
7	Pool	Nil
8	Food & household	$2,688.00	$537.60	$2,150.40	20%
9	Water usage	$42.00	$6.97	$35.03	16.6%
10	Clothing/shoes	$235.83	$176.87	N/A	N/A
11	Non prescribed health, dental, sundries and toiletries	$150.00	$150.00	N/A	N/A
12	Overseas holiday	Nil
13	Gifts for Kevin	$365.00	$182.00	N/A	N/A
14	Petrol	Nil
15	Parking money	Nil
16	Entertainment	$80.00	$60.00	N/A	N/A
17	Vet costs	$80.00	$40.00	N/A	N/A
18	Monthly Totals	$4,371.85	$1,312.35
19	Kevin’s necessary costs per week	$302.85

57I have excluded some line items completely:

Line four

Kevin is a student. Ms Suiter admitted that, if needed, she would iron for him. It was clear she was reluctant to do this. I do not consider it out of the realm of possibility that Kevin could iron some of his own clothing and assist with some more housework.

Lines five, six and seven

These matters are addressed with the child support issues dealt with later in my judgment, albeit for the other children. In any event, I do not consider they are necessary or reasonable here.

Lines 12, 14 and 15

If Kevin has a need for petrol or parking money over and above what his father presently provides, then he can approach his father direct. I consider that the “overseas holiday” falls into the same category. His father gives him $250 cash per week. He may be able to get some casual or part-time work in holiday periods when he has time off from study.

I have reduced some line items:

Lines two and three

I have taken into account that generally Kevin should be allocated 16.6 per cent proportion of the household cost for these items (six members of the household). I have taken into account the evidence of Ms Suiter and increased it to 20 per cent.

Line eight

I have corrected the mathematical error which has the effect of increasing the value of Kevin’s proportion, but I have reduced the percentage to 20 per cent taking into account the constitution of the household and what I consider necessary.

Line nine

I have reduced this to 16.6 per cent, being equal shared household consumption.

Lines 10, 13, 16 and 17

These have been reduced to what I consider is appropriate in all the circumstances presented to me.

I have not reduced line items one or 11.

58Mr Suiter’s undertaking is to be discharged in late 2015. As it presently stands the undertaking continues to the end of Kevin’s undergraduate degree and covers a considerable amount.

59I do not intend to make any further order about those particular payments as I am presently satisfied Mr Suiter will continue to make such payments without court order if and when necessary and that he will adopt a responsible and reasonable approach to his son’s support.

60The payments will commence from December 2013 when the trial commenced. The claim for backdating came only at the very end of the trial and without any real clarification as to why they now needed to be paid. Ms Suiter has had the opportunity to access the funds given to Kevin by Mr Suiter.

Child Support Orders

61Both parties seek that changes be made to the Child Support orders made by consent on 25 August 2010. The degree to which each seeks a change or clarification differs. The basis upon which such a change is sought also differs.

Jurisdiction

62Ms Suiter says the orders are to be changed taking into account s 66S of the Act. Mr Suiter says that the orders are to be discharged or varied taking into account s 129 of the Child Support (Assessment) Act 1989 (Cth) (“CSA”) which deals with the modification of existing child support orders.

63Ms Suiter first made an application dealing with the support of the children on 6 February 2008. She sought a departure from the then current assessment issued by the Child Support Agency dated 24 January 2008 and also for child support other than in a periodic amount.

64On 2 May 2008, Martin J made an order which in a summarised form is:

…

2Until further order there be a departure order from the assessment of the CSA of 24 January 2008 and in lieu thereof the husband pay by way of child support:

(a) $3,500 per calendar month;

(b) school fees, tuition fees and associated education expenses for the children’s education;

(c) mobile telephones for the two eldest children;

(d) private health insurance, and

(e) $6,000 towards a skiing holiday.

(emphasis added)

65As at 24 January 2008 Mr Suiter had been assessed to pay $2,787.58 per month for the children from 14 January 2008 until 13 April 2009. The judgment given by her Honour on 2 May 2008 was specifically in relation to the CSA.

66Between 2 May 2008 and when the substantive trial commenced on 13 August 2010, Ms Suiter made several applications seeking enforcement of the orders and on each occasion termed the orders child support orders.

67In various documents filed by her on 31 May, 2 August and 17 August 2010 she sought a further departure order from the original assessment by the Child Support Agency dated 24 January 2008. The orders of 25 August 2010 were registered with the Agency for collection and enforcement.

68Despite her use of terminology suggesting the orders were for child support, her position during this trial was that the basis for any change to the existing orders came within the Act.

69I have considered Subdivision C of Part VII, Division 7 of the Act which relates to child maintenance orders. The Subdivision deals specifically with the relationship of the Act and the CSA. Section 66E reads as follows:

Child maintenance order not to be made etc. if application for administrative assessment of child support could be made

(1) A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.

(2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

…

70I do not consider that s 66S of the Act has application in these circumstances. The fact the child support orders were sought in conjunction with property settlement orders does not, thereafter, make them child maintenance orders. The jurisdiction of the CSA continues, but its powers are exercised by this Court.

71Section 129 of the CSA mandates how orders such as those currently in place here can be modified. Order eight of the orders of 25 August 2010 is an order for the provision of child support otherwise than in a periodic amount.

72Section 129 is as follows:

Modification of Orders Under Division

(1)If an order under section 123A or 124 is in force in relation to a child (whether or not all things ordered to be done by the order have been done):

(a) the court that made the order; or

(b) another court having jurisdiction under this Act in which the order has been registered;

may under this section, by order:

(c) discharge the order; or

(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

(e) if the operation of the order has been suspended under paragraph (d) – revive its operation wholly or in party; or

(f) subject to subsection (3), vary the order including any matter specified under subsection 123A(3), or any statement made under section 125, included in the order) in any way.

(2)The court must not make an order under subsection (1) in relation to the order under section 123A or 124 unless the court is satisfied, having regard in particular to any matter specified under subsection 123A(3), or any statement made under section 125, that it would be:

(a) just and equitable as regards the child, the carer entitled to child support and the liable parent concerned; and

(b) otherwise proper;

to make the order.

(3)The court must not, by order under subsection (1), vary an order unless it is also satisfied:

(a) that making the variation is justified because of a change in the circumstances of the child, the carer entitled to child support or a liable parent concerned since the order was made or last varied; or

(c) that making the variation is justified because of a change in the cost of living since the order was made or last varied; or

(d) in a case where the order was made by consent—that the order is not proper or adequate; or

(e) that material facts were withheld from the court that made the order or from a court that varied the order, or that material evidence previously given before such a court was false.

…

•Ms Suiter’s position

73Ms Suiter adopted a three pronged approach in her application. Her first claim is for reimbursement of an amount of $6,908 for costs she has paid for “repairs, maintenance and replacements in and around 26 and 28 Como Park (collectively termed “Como Park”). This relates to funds she has expended since 2011 and she says fall within the existing order. She has not been reimbursed by Mr Suiter. This figure was revised during the trial and my final calculation is that an amount of $5,509 is sought to be reimbursed (having corrected mathematical errors).

74Ms Suiter’s second claim relates to the cost of specific items that she says are for repairs, maintenance and replacement of items in the near future. She has detailed most of these items with an estimated cost. The amount she seeks here is presently at least $200,000.

75Finally, Ms Suiter seeks “interpretation and redefinition” of subparagraphs 8(c) and (d) of the 25 August 2010 order.

•Mr Suiter’s position

76Mr Suiter disputes that most items sought in the first and second part of Ms Suiter’s claim fall within the description of maintenance and repairs as he understands order eight. On that basis he opposes most of the payments sought. He does not agree with the redefinition of the orders as Ms Suiter proposes. He seeks a discharge of almost all parts of paragraph eight and proposes a significantly curtailed time frame for the duration of the orders. As an alternative, he proposes what can only be described as a modest lump sum payment of $68,250 in lieu of ongoing and ad hoc payments.

77Given the inordinate difficulties the parties have had with their consent order, I consider it may be of some use to them both and to the children to attempt some clarification of it. They are not able to agree how it should work.

Discussion

78Mr Suiter accepts that for about six months, or thereabouts, after the orders of 25 August 2010, he paid most, if not all, of the invoices Ms Suiter presented to him. He deposes:

…

57. This is because I thought I had to and I just gave in to [Ms Suiter]’s relentless demands in her emails to me. My secretary processed many of the claims on my behalf.

58. Thereafter, I became concerned that [Ms Suiter] was using the orders as a carte blanche to have me pay for virtually every outgoing relating to the children and the house she lives in. I began to more closely scrutinise both the terms of the orders and the invoices that [Ms Suiter] was sending and I obtained legal advice on the orders.

…

79Thereafter, Mr Suiter withheld payments for certain invoices presented to him. This is the genesis of Ms Suiter’s enforcement application.

80At trial Mr Suiter’s position had firmed to a belief that the claims Ms Suiter made for maintenance and repairs to Como Park were simply an abuse of the orders. He maintains he pays well beyond what the orders provide.

81Counsel for Mr Suiter points out that in a judgment delivered by Martin J on 2 May 2008, fixed outgoings for Como Park, including the local authority and water rates and taxes, house and content insurance premiums, utility expenses and “all reasonable costs for any required repair, maintenance and upkeep as agreed in writing between the parties” were termed spousal maintenance. In the 2010 consent orders most of these items are termed child support. I pause here to note that the orders made in 2010 were consent orders negotiated by the parties whereas the orders of 2 May 2008 were determined by her Honour.

82Both maintenance and child support orders are intended to provide for the needs of the recipient.

Interpretation of orders

83I am called upon to consider the manner in which each party has interpreted the consent orders. Le Poer Trench J in Apoda & Apoda and Anor [2013] FamCA 265 considered the law in relation to the interpretation of orders made by consent where the parties’ interpretations of the orders differed. He referred to the case of Kirkpatrick v Kotis (2004) 62 NSWLR 567 specifically in relation to consent order where Campbell J concluded that:

authority and principle both favour the view that surrounding circumstances can be used to construe a consent order. The type of surrounding circumstances which can be used are those which can be used to construe a contract…

84Campbell J described surrounding circumstances as:

facts known to all parties to the consent order… the very thing that a person trying to understand and obey the order would take into account

85In Apoda & Apoda and Anor (supra) Le Poer Trench J concluded that on a consideration of the case law when interpreting orders the following exercise should be conducted:

a)Determine if there is any ambiguity created by the orders.

b)Whether there be ambiguity or not, identify the “surrounding circumstances” (other than the subjective intention of the parties) of the making of the orders and what has occurred thereafter to create the dispute, so far as those circumstances are such as might be available to assist in the construction of a contract.

c)Reach a conclusion in relation to the construction.

86I consider this a useful summary of the approach required here.

•Orders 8(a) and (b)

87The wife does not seek any change to orders 8(a) and (b). The husband seeks to vary those orders in a number of respects.

88Firstly, he wants to pay the fixed outgoings for Como Park for a period of 18 months only. He agrees to payments of home building insurance, but does not want to continue to pay any contents insurance. He wants this limited to 18 months.

89Mr Suiter says that when the orders were originally made, Ms Suiter was not then contemplating living in a de facto relationship. Now there is another person living within her household and thus Mr Suiter’s liability to pay should be reassessed.

90Whilst Mr Suiter may consider it unfair that he is subsidising Mr Cross, the orders he entered into, by consent, were based on providing for the needs of his children. They were not for the benefit of Ms Suiter or anyone else living there. The fact that Ms Suiter benefits is a by-product of the child support arrangement.

91The three children under 18 years live full-time at home. Their current ages range from 11 to almost 17 years. I consider the orders to be proper as they cater for the children’s needs. I am not persuaded that an additional member of the household changes the position here.

92Although in August 2010 Ms Suiter said she had no immediate or medium term plans to live in a de facto relationship, it would be unrealistic to assume that during the entire period captured by the orders that this was not a real possibility. Again, this is not a spousal maintenance order.

93Mr Suiter speculated that the quantum of any contents insurance could be manipulated by Ms Suiter. She might purchase an item such as a very expensive piece of art for herself which would be costly to insure. He would bear the brunt of the cost.

94I have not been presented with any evidence to suggest that Ms Suiter would seek to manipulate contents insurance as put forth by Mr Suiter. If she did then this may fall outside the ambit of the orders, but it is purely speculation at this stage.

95Orders 8(a) and (b) are clear and unambiguous, both as to content and duration. They were made by consent after nine days of trial. They were made as child support orders and not, as had been done previously, as spousal maintenance orders.

96There has been nothing put to me to suggest that orders 8(a) and (b) are neither proper nor adequate and I see no valid ground for any change.

•Orders 8(c) and (d)

97The real nub of this dispute revolves around the need to interpret the orders insofar as they relate to:

The cost of all and any necessary and required maintenance and repairs to the property and surrounds and which are subject of prior agreement between the parties.

98Mr Suiter’s position is that he will agree to maintenance and repairs to Como Park for 18 months if they are required to render the home functional, habitable and safe. He wants to reduce the scope of the order by confining it to the following:

•Repairs to the Dynalite system;

•Electrical repairs and maintenance to light fixtures where safety is an issue;

•Repairs and maintenance to plumbing;

•Repairs and maintenance to the air conditioning, with maintenance limited to one service in a 12 month period;

•Repairs and maintenance to the roof tiles of the residence; and

•Security system maintenance and repairs.

99I agree the orders as they presently read do include these items.

100Mr Suiter says that after the 2008 orders he made payments akin to the present orders, but for spousal maintenance. He says there is a contextual difference as they are now child support orders. He says that they now simply mean making Como Park safe and habitable. He says that it is not a method to enhance the aesthetics of the property.

101Ms Suiter says that Mr Suiter complied with the 2008 orders without complaint. She does not accept there is a contextual difference in the categorisation of the orders. She says the parties negotiated orders that capture almost everything. She said this was the intent. She maintains she has always adopted a sensible approach and has not, and does not intend to, seek all and everything that she believes the orders encompass. She does not want the home to look dilapidated. She has identified what she says is the scope of the orders in her papers. Her definition is open ended.

102There is a clear tension between the interpretation adopted by each party.

103Counsel for the wife says that orders 8(c) and (d) require a “natural” reading. She says that all and any maintenance and repairs are caught by the order, but concedes these must also be necessary and required.

104She accepts that the concept of reasonableness provides a check and balance to any maintenance and repairs. She says the reference to an agreement being reached prior to proceeding relates to any issue of cost rather than a dispute about the actual item of maintenance or repair. I do not agree that cost is the only issue about which agreement is required. The maintenance and repairs must be necessary and required. However, there must not be disagreement based solely on not liking the orders, an approach Mr Suiter has been inclined to adopt.

105Each party calls upon the other to be reasonable. Each party has different ideas of what is reasonable.

Defining maintenance and repairs

106In Clowes v Bentley Proprietary Limited [1970] WAR 24 Neville J considered the definition of repairs in the context of the obligation of tenants to repair in a covenant between landlord and tenant. The covenant to repair is discussed as not containing an obligation to make improvements but that repairs involve renewal to some extent.

107In W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1965) 115 CLR 58 the High Court describes repairs as works done

to make good a deterioration that had occurred by ordinary wear and tear or by the operation of natural causes during the passage of time…Cases arising between landlord and tenant are only of indirect assistance…The words “repair” and “improvement” may for some purposes connote contrasting concepts; but obviously repairing a thing improves the condition it was in immediately before repair…Repairs to a whole are often made by the replacement of worn-out parts by new parts. Repair involves a restoration of a thing to a condition it formerly had without changing its character…Whether or not work done upon a thing is aptly described as a repair of that thing is thus a question of fact and degree.

108Maintenance is further described in the decision as involving “the periodic repair of defects that are the result of normal wear and tear in operation”.

109I consider these authorities a useful and practical guide to what I am asked to decide here.

110I now turn to the three branches of Ms Suiter’s application. These, of course, intersect with the response of Mr Suiter and will be dealt with together.

•Reimbursement of past expenses

111These expenses can be broken down generally as follows:

Lawn Mowing 3,037

1,760

Window cleaning (two lots) 440

Dishwasher repair 272

5,509

112Mr Suiter appears to have stopped making any payments in relation to Lawn Mowing from at least early 2011. Ms Suiter deposes:

12. In his email to me dated 6 May 2011 [Mr Suiter] said:

As explained above, day to day operations of the home are not maintenance. It needs to be structural and agreed upon. I have not agreed to new plants being planted or hedges being trimmed etc. The agreement for lawn mowing is also not included going forward. I am not obliged to pay and will not be paying in the future.

One of the accounts for the Lawn Mowing, which forms part of the amount sought is for:

Gardening for January and February 2011 eg removal existing annuals and re-plant new, apply wetting agent and fish emulsion, remove cuttings from garden and check retic in lawn.

There are numerous other receipts in the same vein, including for actual lawn mowing.

113I consider the repair of the dishwasher to fall squarely within the definition in order 8(c). It represents periodic repair of a common household item. That amount will be reimbursed.

114However, I consider the lawn mowing/gardening and the window cleaning to fall into a different category than the repairs to a dishwasher.

115I am not satisfied in the context here that lawn mowing, gardening and window cleaning are necessary and required maintenance. The lawn mowing and gardening was not agreed to, although it had previously been paid under the spousal maintenance orders. Mr Suiter voiced his refusal about the lawn mowing in writing.

116Gardening and window cleaning do not remedy any defect, although it may be desirable for those tasks to be done. Without their execution, Como Park may not look as nice as if the tasks had been done.

117There are presently three adults and a boy of almost 17 years of age in the household. Ms Suiter will be completing her university degree later in the year. I appreciate Tracey has some special requirements, which take more of Ms Suiter’s time. I accept she has a limited capacity to contribute financially, but I do not consider it to be out of the ordinary that household members undertake some general activity to enhance their property if that is of importance to them. I consider it appropriate that Ms Suiter makes her own arrangements for these items, both now and in the future.

118There is no issue that Mr Suiter can pay what is sought, but the concept of necessary and required is what the parties put in their orders and, thus must be considered. It is not about social desirability.

•Interpretation and redefinition of orders

119Ms Suiter provided a list of specific items of repairs and maintenance she said needed attention. During the course of the evidence, especially that of the Single Expert Witness, [Mr Hubbard], this list increased.

120Before I consider any items individually I will deal with how each party says the orders need to be redefined as that will impact on any future requests of the wife.

121Como Park is 13 years old. Initially the parties and their four children lived there. I accept that it has been subjected to a constant barrage of wear and tear over the years, aided by four sets of young feet. Pets, including a dog, form part of the household. Mr Cross has also lived permanently in the household since mid-2013. He lived there less frequently for some months prior to that.

122I again reject Mr Suiter’s desire to moderate the duration of the orders. There was no convincing explanation why the orders should suddenly stop despite the children, or some of them, still being under 18 years and remaining at Como Park. These orders were negotiated after the parties had the benefit of legal advice, including Senior and Queens Counsel. In terms of their duration, they are clear and unambiguous. The orders are to run until the youngest child turns 18, not uncommon in child support orders. There was nothing put to me to suggest that there are grounds to limit the timeframe as sought by Mr Suiter. They are his children and he has to support them in the manner set out in the orders. The duration is proper and adequate. There will be no reduction in the timeframe of the orders.

123Ms Suiter’s attempt to define the term “maintenance and repairs” also has little attraction. She seeks some further definition of the term “maintenance and repairs” but seeks it in isolation from the balance of the order. However, the order needs to be read as a whole.

124At the risk of being repetitive, the entire consent order is that the cost of all and any necessary and required maintenance and repairs to the property and surrounds to which there is prior agreement between the parties is to be paid.

125Mr Hubbard, a former structural engineer with 40 years experience in the building industry, was jointly instructed by the parties on 8 November 2013. Mr Hubbard provided a report on 5 December 2013. He was cross-examined by each party at trial.

126He accepted that in his report he identified “all and any” items of maintenance and repairs. He said that he had not distinguished between “all and any” and “necessary and required”. He had simply documented everything that needed maintenance or repairs. He accepted some items he reported were not maintenance, but were matters of cleanliness. Some items came down to poor presentation. Other items required minor adjustments only. He was of the view that the house was generally habitable. The only safety issues he identified were a problem with the electric connections in the garden lighting system and some faulty steps.

127He agreed some items he had identified in his report were simply a matter of aesthetics and did not relate to issues of safety or habitability.

128Although in the case of Apoda (supra) the Court identified the need to consider the circumstances surrounding the making of the orders, it stressed that it was not the subjective expectations of the parties that was important. These were orders for the parties’ children. Orders 8(c) and (d) are clauses that make provision for their support in addition to what is considered to be appropriate periodic support.

129It is not possible to redefine the orders to capture everything likely to arise in the future. I do not intend to do as Ms Suiter suggests. I will make a decision in relation to the specific items of future payments she seeks and to generally make comments which are based on what I consider to arise from the case law and a reasonable interpretation of the current orders which capture the particular position of each party.

130I do not accept that the fact Ms Suiter has re-partnered and Mr Cross lives within the household is such a change of circumstance that the orders should be modified. The orders are to benefit the children. Obviously, there is tension about what is for the children and what is for Ms Suiter and her partner, but each party wants the children to live comfortably, safely and in pleasant surrounds.

•Future payments

131At the conclusion of the trial the wife was seeking:

•Painting to the interior and exterior of the home E 75,685.50

•Repair of cork floors, including re-sanding and recoating E 800.00

•Replacement of MRS surround sound system E 8,971

•Replacement costs of repairs to kitchen cabinet,

including cabinet door E 308

•Dynalite light system E unknown

•Purchase and installation of replacement carpet in

all currently carpeted rooms E 19,230

•Repair of the limestone wall E 180,000

132The last item was hotly contested with three witnesses postulating how it could and should be repaired. At least some of the quotes for the above items are likely to be outdated.

133I do not accept that the definition in 8(c) and (d) includes, amongst other items:

(i)Cleaning by Pool Spa on a fortnightly basis or at all. If the family wants a pool then its members can clean it regularly and check the chemical levels.

(ii) Any garden work save for repairs to reticulation.

(iii)Repairs to a coffee machine. Whether it is “built in” or not, I do not, vis-à-vis children, consider this to be in the same category as a stove, dishwasher or washing machine.

(iv)Multiple replacements of items such as televisions.

134To further aid clarification I accept there should be repairs to the swimming pool and replacement of components which are beyond repair, to include Kreepy Krawly malfunction, all pool chemicals (acid, chlorine, algae treatment) replacement of faulty equipment (new pool pump, Kreepy Krawly parts, basket), repairs and replacement of broken pool tiles, ChemiGem purchase, repairs to pool lining. All clearing, leaf removal and such upkeep is for the household and not Mr Suiter. I note that Mr Suiter has limited assistance in this regard himself. He also works full-time and he cleans his own swimming pool.

135There needs to be electrical repairs and maintenance to most, but not necessarily all, items in the home. It is a matter of degree.

136The parties do agree a few items. Mr Suiter will be responsible for repairs to the Dynalite system. He accepts that most plumbing would come within the order as would certain general repairs, including to a garage roller door. The air-conditioning should be repaired when required with one annual service. Broken roof tiles must be attended to.

137Neglect of basic household upkeep and cleaning is not something that Mr Suiter should be responsible for. If there are mere scuff marks or dirty stains on walls, I agree with Mr Hubbard this is often a matter of cleanliness. It may not look very nice, but people have different tolerance levels. I am of the view that Ms Suiter can take charge of the general aesthetics in the home. Minor repairs and adjustments should fall within her province.

138There is no doubt that the security system needs to be kept in good repair. It should be in working order.

139It may be that from time to time the children’s computers need repairing, but I do not accept that if there are televisions in each bedroom and other rooms, including a gymnasium, then Mr Suiter should be called upon to replace or repair all of those items.

140It was generally accepted that in relation to the difficulties with the limestone wall identified by Mr Hubbard, that some work is needed to maintain its structural integrity.

141Ms Suiter says that the multi-room system (“MRS”) needs to be repaired or replaced where beyond repair. Mr Hubbard had noted that such system was not functional in the gymnasium and that the entire MRS “needs to be looked at”. This is a matter where quotes are required and a clear identification of what the difficulty is. I do not consider an expensive MRS is required or necessary. There may be a different option and replacement. Although counsel for the wife urged upon the Court the need to ensure that repairs were to be in keeping with the construction and design of the house, I do not accept that state of the art equipment is required here.

142The house needs to be safe and functional for the children. The order is for child support in accordance with the parties’ means. Mr Suiter has no limit on his means, but that does not translate to provision of a standard of living for them that is luxurious or simply to match the neighbouring houses.

143In relation to the specific items sought by Ms Suiter, I consider it appropriate to deal with them at this stage. I take into account the evidence of Mr Hubbard, the age of the house, certain concessions made by Mr Suiter (eg replacement of the carpet) and the wear and tear arising from the children. However, the quotations may need to be updated. The replacement of the MRS system may require some negotiation as to what is appropriate.

144It is not possible for this Court to define these orders with the precision that either party wants. Mr Suiter gives a clear and very concise interpretation of the orders. However, such interpretation is not consistent with what is proper or adequate support for his children in their particular circumstances. Ms Suiter, on the other hand, is over inclusive and appears reluctant to contribute physically or financially herself. I do not consider, once again, the attitude of either party reflects well on them. Most importantly, such attitudes militate against negotiation, compromise and co-operation.

Quotations

145The parties agreed that there should be a provision for Ms Suiter to provide quotes for work the parties agree upon and which is required and necessary. Her proposal is:

•for any item less than $1,000, one quote shall be required;

•for any work up to $5,000 two quotes shall be required;

•for any item over $5,000 three quotes shall be required; and

•if the item is beyond repair or it is cheaper to replace the item than repair it, the cheaper option is to apply.

146Mr Suiter was generally in agreement with this system of quotes.

147However, I am of the view that if there is any item over $15,000 and Mr Suiter wishes to obtain quotes himself, he should be given that opportunity. Here, I am specifically referring to items such as painting, the Dynalite system and the carpet. There may be others.

148The repair of the limestone wall is a major issue about which I consider that Mr Suiter should obtain the quotes himself and thereafter arrange for the work to be carried out without any further input from Ms Suiter. Mr Suiter has some experience and connections in the building industry and Ms Suiter was unaware of the wall problems until Mr Hubbard identified the faults.

Other issues

149The parties also, unsurprisingly, have great difficulty in communicating with each other about both the children and the repairs and maintenance.

150Unfortunately, the orders they agreed upon encourage this unless each adopts a more pragmatic approach. Mr Suiter has remarried and his former wife’s stream of requests and receipts for repairs and maintenance, which she says fall within the orders, has created friction for Mr Suiter’s present family unit. On the other hand, Ms Suiter does have consent orders and a need for maintenance and repairs on an ongoing basis. She is the primary caregiver for the children. Mr Suiter has to accept he is bound by those orders and needs to pay.

151Each party provided me with their proposed orders.

152Mr Suiter seeks an injunction restraining Ms Suiter from communicating with him in a written form unless there is a medical emergency relating to the children or on one occasion each month in relation to any expenditure made pursuant to the orders of 25 August 2010. On the other hand, Ms Suiter provides a detailed minute of proposed orders as to communication depending on a variety of situations.

153If there is an item requiring repair or maintenance that is considered urgent because there is a danger to the safety of any person or there may be damage to property, I can see no reason for there to be any orders made. Ms Suiter will have to go ahead and have the work done. Mr Suiter will then reimburse her if the work was necessary and required. If Ms Suiter is unhappy with the state of the house and the ongoing difficulties in maintaining it she has the option to sell and move to a house more in keeping with her own and Mr Cross’ present circumstances.

154I see no reason for there to be any orders relating to the definition sought by Ms Suiter.

155I consider that communication on a monthly basis is adequate to deal with maintenance and repairs. These will deal with both reimbursement and items that require attention in the near future.

156I decline to make orders in relation to communication about the children.

Conclusion

157The parties consider the orders to be broad and ambiguous. These orders were agreed with the assistance of a full legal team including Senior and Queens Counsel. The husband says that he did not understand the true meaning of the orders when they were made. However, he agreed the orders were “the deal” entered into by the parties. They are just that. The subjective intention of each party is of no assistance. These are orders for the support of the children. They are children, like any other children, despite the fact their father is very wealthy.

158The parties are to consider the use of arbitration in the future if they cannot agree. The issues raised in this case, while extremely important to the parties, have consumed considerable court time. If the matter needs to be dealt with again, there can be no expectation it will be given any priority.

159The Court directs the parties to have discussions about using arbitration to resolve future disagreements.

Orders

160I will hear from counsel in relation to the form of the orders:

1As and from 1 December 2013 pursuant to Section 66L of the Family Law Act 1975 (Cth) the Respondent, pay to the Applicant, as adult child maintenance for KEVIN SUITER (“Kevin”) born 12 April 1995 the sum of $1,312 per month until such time as he graduates from his undergraduate and postgraduate tertiary studies or until the conclusion of the academic year in which Kevin turns 23, whichever is the sooner.

2The Respondent forthwith pay to the Applicant the sum of $272 in reimbursement of costs paid by her for the repair of the dishwasher.

3The Applicant, and subject to order 5, the Respondent, forthwith obtain quotes for the cost of supplies and labour relating to:

(i) Painting to the interior and exterior of Como Park;

(ii)Repair of cork floors, in Como Park including re-sanding and re-coating;

(iii)Repair or replacement of MRS or like surround sound system;

(iv)Costs of repairs to door to kitchen cabinet;

(v)Dynalite system;

(vi)Purchase and installation of replacement carpets in all currently carpeted rooms.

4The Respondent forthwith take all steps to ensure the repair of the limestone wall.

5In relation to the necessary and required maintenance and repairs to Como Park and surrounds (or any replacement residence), the Applicant be required to obtain quotations to be presented to the Respondent as follows:

(a)For any item less than $1,000 one quote shall be required;

(b)For any work up to $5,000, the Applicant shall be required to obtain two quotes;

(c)For any item over $5,000, the Applicant shall be required to obtain three quotes;

(d)If the item is beyond repair or it is cheaper to replace the item than repair it, the cheaper option is to apply.

6The Respondent be at liberty to obtain two quotes on any item relating to which the quotations of the Applicant exceed $15,000.

7The Respondent is to make payments to either the provider of the goods or services or if the payment has already been made by the Applicant, to reimburse her, within 21 days of receipt of the invoice or receipt for the goods or services.

8The Applicant is to communicate with the Respondent on one occasion each month in relation to expenditure arising as a result of the said orders.

9Any orders in relation to arbitration.

10The applications otherwise be dismissed.

I certify that the preceding [160] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate