Telama and Telama (No 2)

[2011] FamCA 642

FAMILY COURT OF AUSTRALIA

TELAMA & TELAMA (NO 2) [2011] FamCA 642

FAMILY LAW – CHILD SUPPORT – enforcement – whether the expenses the mother seeks come within the parameters of the Binding Child Support Agreement –order made

APPLICANT: Ms Telama

RESPONDENT: Mr Telama

FILE NUMBER: SYC 1450 of 2008

DATE DELIVERED: 25 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 25 July 2011

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Mrs Telama appeared in person

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. By way of enforcement of Clause 6(d) of the Binding Child Support Agreement executed between the parties and dated 3 September 2010 the respondent Mr Telama shall within four weeks pay to the applicant Ms Telama $6,000.00.  This amount comprises $1,000.00 for the calendar year 2010 and $5,000.00 for the calendar year 2011.

2. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Telama & Telama (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 1450 of 2008

Ms Telama

Applicant

And

Mr Telama

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally. 

2. This is an application by Ms Telama (“the applicant”) to enforce clause 6(d) of a Binding Child Support Agreement (“the Agreement”) that she and (“the respondent”), Mr Telama, executed on 3 September 2010.  The issue is whether the expenses that the applicant seeks from the respondent come within the parameters of clause 6(d).  So that it is clear, there is no issue about technical matters which might stand in the way of the relief sought by the applicant.

3. The Agreement is attached to the applicant’s affidavit sworn 15 May 2011.  It shows that the parties have four children, the youngest of whom is J, born in 2004.  The children all live with the applicant. 

4. Clause 6(d) is as follows:

   Within seven (7) days of receipt by the Father of invoices relating to expenses in respect of further care, education and/or intervention for J in the treatment of his ADHD (Attention Deficit Hyperactivity Disorder), and/or ODD (Oppositional Defiance Disorder) and/or any other future developing behavioural problems, to pay such monies as may be necessary to meet one half (1/2) of these expenses to the Mother by direct credit into a bank account nominated by the Mother AND the maximum amount payable by the Father under this Clause each calendar year from 1 January to 31 December is $5,000;

5. Clause 6 establishes a regime for payment of child support by the respondent to the applicant.  Subclause (a) provides for regular periodic payments which in general terms requires the respondent to pay $5,600.00 per month for the four children.

6. Clause 6(b) provides for the payment of school fees with children in Kindergarten to Year 4 requiring a $3,000.00 annual contribution by the respondent to each child’s school fees.  From Year 5, the amount increases to $13,500.00 annually. 

7. Clause 6(c) provides for additional payments of $300.00 per month.  

8. Clause 6(d) relates solely to J and in particular, “further care, education and/or intervention” expenses incurred in relation to specified disorders and future developing behavioural problems.  Reliant upon clause 6(d) the applicant is seeking further contribution by the respondent to J’s education expenses, in particular, his school fees.  The question which arises is whether clause 6(b) is the only subclause that deals with school fees or whether, in relation to J, further school fees can be claimed under clause 6(d).

9. In 2010, J commenced school at C School.  He started well, but by the end of the year, he had twice been suspended, and it is clear from the report of Ms D and the applicant’s affidavit that the school was struggling to manage his behaviour.  The applicant sought advice from J’s psychologist, Ms D, his paediatrician and consulted a second paediatrician, Dr E, about the child’s problems at school.  Dr D, who is the child’s long-term treating psychologist, commented upon the frequency with which the applicant was asked by C School to collect J from school because his teachers were unable to manage his challenging behaviour.  The initial optimistic report from C School published at the end of Semester 1, 2010 does not reflect the situation which developed for the child at that school in Semester 2, 2010.

10. Having reflected on their advice and spoken with C School the applicant decided that the facilities offered by C School no longer met J’s particular needs.  In this regard, it is noteworthy that after the parties entered into the Agreement J was diagnosed as having an Autistic Spectrum Disorder.

11. J had been registered by the parties at F School where it was anticipated he would commence in middle school.  The applicant contacted F School who, subject to assessment, offered him a place commencing 2011.  Assessments were undertaken by F School to determine, I infer, whether the school could manage his particular needs.  He was accepted and this year commenced at F School.  At F School the child has settled in well and many of the behavioural problems evident in the second half of last year at C School have disappeared.  For example, the applicant has not been asked to collect him early and no issues have been raised with her about his ability to remain in class. 

12. That situation should be compared with the report from Dr E, who in relation to the child’s attendance at F School said:

    …He is currently at [F School] Prep.  The move to [F School] has been a very positive one, as reflected in his school report.  I would support and encourage his continuing attendance at that school where they are meeting his needs appropriately.

    Dr E goes on to say:

    I would be unwilling to change any part of his management currently.  We need to give him more time to consolidate his improvements…

13. This seems to be reference not only to the child’s attendance at F School but also the regime of medication which has the child taking Concerta 27 and Risperidal 0.5mg daily. 

14. In short, it is established, to my satisfaction, that the change in schools has been very positive for the boy.  I am satisfied that the net effect of the unchallenged evidence presented in the applicant’s case, is that the child’s attendance at F School is required to further his education in the sense that he attends a school where his particular educational needs are met.  This is directly connected to further treatment of his behavioural problems or disorders.

15. I do not agree with the submissions made by the solicitor for the respondent that clause 6(d) required the applicant to show that F School was the only school where the child’s particular educational needs could be met or that clause 6(d) is limited in its application to educational supplements and could not apply to school fees.  The words “further education” captures the notion of further educational expenses, including school fees, incurred because J’s particular needs required that he start at F School earlier than middle school.

16. In circumstances where I am satisfied the child’s withdrawal from C School and enrolment at F School is an important part of him being able to settle at school which is better able to cope and respond to his behavioural problems, the applicant has established that she is entitled to enforce clause 6(d) in relation to F School enrolment expenses and fees.

17. In relation to quantum, $1,000.00 is applicable to 2010, being one-half of the non-refundable deposit the applicant paid to F School.  Five thousand dollars is less than half of the additional sum which will be paid by the applicant for F School fees until clause 6(b) becomes the operative provision.  Nonetheless, because the amount is capped at $5,000.00 annually it is the maximum that can be ordered. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 25 July 2011.

Associate:     

Date:              17 August 2011