TROTTER & PAYNE

[2012] FamCA 144

FAMILY COURT OF AUSTRALIA

TROTTER & PAYNE [2012] FamCA 144

FAMILY LAW - ENFORCEMENT OF ORDERS – application for the enforcement of a Child Support Agreement.
Order that respondent pay the amount owing pursuant to the Child Support Agreement.
Order in the event of the respondent’s failure to make payment.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Trotter

RESPONDENT: Mr Payne

FILE NUMBER: MLC 5159 of 2008

DATE DELIVERED: 30 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 28 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hannan

SOLICITOR FOR THE APPLICANT: Harwood Andrew Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. That on or before 14 May 2012 (“the date”) the husband pay to the wife the sum of $43,649.80 (“the payment”) being the sum owing pursuant to the Child Support Agreement dated 17 May 2007.

2. In the event that the husband does not make the payment by the said date in accordance with paragraph 1 hereof the husband forthwith sign all documents and do all things necessary to affect the sale out of Court of the real property situated and known as Flat …/… C Street, Suburb B being the land more particularly described in Certificate of Title Volume … Folio … by an agent nominated by, and upon such terms and conditions as may be determined by, the wife.

3. Upon the completion of the sale, the proceeds of the sale be applied:

   (i)firstly to pay all costs, commissions and expenses of the sale;

   (ii)secondly to discharge any mortgage and any other encumbrance affecting the real property;

   (iii)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10.25 per centum per annum adjusted monthly from the date to the wife;

   (iv)fourthly the balance to the husband.

4. Pursuant to s.106A of the Family Law Act 1975 (Cth) if either party refuses or neglects to sign any document necessary to implement these orders within 14 days of a request in writing to do so, a Registrar of the Family Court of Australia is appointed to execute such document on behalf of that party.

5. That all extant applications be otherwise dismissed save that there be liberty to apply reserved to approach Justice Macmillan’s Associate within 28 days of the date of this order with respect to any application for costs arising out of these proceedings.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trotter & Payne 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 MELBOURNE

FILE NUMBER: MLC5159/2008

Ms Trotter

Applicant

And

Mr Payne

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application, as amended, filed by the wife on 16 February 2012. She seeks orders by way of enforcement of the Child Support Agreement (“the agreement”) entered into by the parties on 17 May 2007.

2. The agreement was entered into prior to the introduction of the amendments to the Child Support (Assessment) Act 1989 (Cth) which provided for binding child support agreements and limited child support agreements. Whilst not in the form required of a binding financial agreement in accordance with the transitional provisions, the agreement is treated as if it was a binding child support agreement. The agreement, which relates to child support other than in the form of periodic cash payments, has been registered for the purposes of enforcement as an order under Part VII of the Family Law Act 1975 (Cth).

3. The substance of the agreement was that the parties would each pay one half of the costs and associated costs of the children’s primary and secondary education (including tuition fees, books and uniforms and extra curricula activities) and the children’s medical (including private health insurance cover), dental and orthodontic expenses. There was no provision for periodic child support and, although not formally part of the agreement, it is inherent in that agreement that they would each bear the costs of the children whilst in their respective care.

4. The parties consented to final orders for property settlement contemporaneously with entering into the child support agreement. Those orders included an order that:

   the husband place into a trust account for each of the children of the marriage the sum of $4500 and the parties be appointed and remain joint trustees of the investments until each of the children attain the age of 18 years unless the parties should resolve to vest the trust before the vesting date.

Background

1. The parties were married in December 1992 and separated in August 2005.

2. There are two children of the marriage who are the subject of the child support agreement L born in October 1994 who is now 17 years of age and N born in October 1996, now 15 years of age. At the time the parties entered into the child support agreement it was agreed, and the subject of orders to that effect, that the children would be living with the each of them on a week about basis. That arrangement broke down in or about February 2010 following an incident involving the husband’s mother and L. On 13 May 2010 parenting orders were made by the Senior Registrar by consent. Those consent orders provided that the parties have equal shared parental responsibility for the children, that the children live with the mother and that they spend time and communicate with the father as agreed between the children and the father.

3. It was further ordered that neither the mother nor the father would criticise the other in the presence or hearing of the children, that the mother was to authorise the children’s school to provide to the father at his expense (if any) all school reports, newsletters and school photos, that both parties were to be at liberty to attend the children’s school functions and parent teacher interviews, that the mother and father were to participate in a parenting orders program provided by Centacare or another provider as agreed between the parties and that the children were to attend counselling at Centacare or a child psychologist agreed upon by the parties to discuss their relationship with the father.

4. Notations to those orders provided that the mother would use her best endeavours to encourage and facilitate the children spending time with the father, the mother was to provide to the father a copy of daily entries of N’s school diary on a fortnightly basis, that the parties proposed to discuss the children’s schooling arrangements at the conclusion of 2010 and  significantly for the purposes of this case, the child support agreement made 17 May 2007 would remain in full force and effect.

5. At the time the parties entered into the child support agreement, L, who was at that time 12 years of age, was in Year 7 at P School and N, who was then 10 years of age, was in Year 5 at the same school. L had, at that time, been at the school since kindergarten and N since the commencement of primary school.

6. On 6 June 2008, as a result of the husband failing to make the payments he was required to make pursuant to the child support agreement, the wife issued an application for an enforcement order. On 16 July 2008 Justice Mushin ordered that no later than 10:00am on 17 July 2008 the husband pay the following sums pursuant to the child support agreement between the parties dated 17 May 2007:

   a.$16,418.39 to the wife’s solicitors being arrears of school fees paid by the wife on behalf of the husband; and

   b.$4,005.85 to P School being fees due and payable on 15 August 2008.

   and fixed the wife’s costs in the sum of $2750 reserving all questions of payment of those costs.

7. The husband has not made any application to either vary the parenting orders generally or specifically with respect to the children’s education and has not sought to set aside or vary the child support agreement. During the hearing the husband made statements to the effect that he needed to make new applications about his feelings and changing the children’s school. He said that he felt that he had no control and was being asked to be “financially, a wallet”. When asked in cross examination whether that meant that he would be making an application to change the children’s school in the event that the wife’s application to enforce the child support agreement was successful he said that he did not intend to make an application to change the children’s schools but that he just wanted to know about his children’s well being.

Wife’s Application for enforcement

1. The wife in her application sought orders, inter alia, that the husband forthwith pay her the sum of $43,939.21 calculated as follows:

   a.$16,545.60 being the husband’s half share of the fixed and compulsory school fees payable for the school year of 2011 paid to P School by the applicant;

   b.$17,389.22 being the husband’s half share of the fixed and compulsory P School fees for the 2012 school year;

   c.$1,016.17 being the husband’s half share of the costs of school text books, uniforms and school related expenses paid by the applicant for 2011 to date;

   d.$3,881.19 being the husband’s half share of costs for the children’s private health insurance from July 2008 to February 2012 paid by the applicant;

   e.$1,543 being the husband’s half share of medical and orthodontic treatment for N not reimbursed by private health insurance;

   f.$1,488.50 being the husband’s half share of medical and orthodontic treatment for L to date not reimbursed by private health insurance;

   g.$289.41 reimbursement of the costs incurred by the wife for relevant title searches  referred to in her affidavit; and

   h.$597.60 being the husband’s share of out of pocket medical expenses related to the children;

   i.$1,983.52 being the husband’s share of the anticipated out of pocket expenses in relation to L’s orthodontic treatment.

2. The wife had deducted the sum of $795 being the husband’s half share of the education tax refund from the total sum. She also conceded that the cost of the title searches was relevant to the question of any costs order that she might seek in the event that her application were to succeed, but not relevant for the purposes of the enforcement of the agreement. As a result, the total sum sought by the wife directly by way of enforcement was $43,649.80.

The Evidence

1. The wife had prepared her case with a great deal of care, supporting her claims for payment with detailed documentation. Whilst she was clearly upset and at times frustrated by what she saw as the husband’s failure to meet his financial obligations and the focus of his questions on what he suggested was her failure to meet her obligations pursuant to the orders and/or the agreement, she was an impressive witness answering carefully and truthfully the questions put to her by the husband.

2. It is the wife’s case that the husband’s last contribution to the children’s school fees was a half share of the final instalment of the 2010 fees. This is consistent with his evidence that on 12 August 2010 he forwarded an email to the school in which he advised that as at that date he would not be liable or responsible for the children’s fees at the school. He further advised the school in that email that the wife would be in contact with them for the following year’s enrolment and would be accepting full responsibility for those fees in the event that the children were to attend the school in 2011. The wife has signed the necessary documents accepting responsibility for the payment of the fees on the basis that if she did not do so there would be no place available for the children at the school. It is her case that this was not an acceptance on her part that the husband should not be responsible for the fees and to the contrary she has persisted in her attempts to have the husband make the payments she says he is required to make pursuant to the child support agreement. Her evidence was that she made repeated demands to the husband that he comply with the provisions of the child support agreement including sending a letter to him by registered post on 25 February 2011 asking him to pay his half of the school fees and an email sent on 1 August 2011 requesting reimbursement of his share of the children’s expenses. She sent a further email on 11 November 2011 requesting reimbursement of his share of the children’s expenses and payment of his share of the 2012 school fees. A copy of the letter and the two emails were annexed to the wife’s affidavit filed 29 November 2011. 

3. It is clear from the wife’s evidence that the fees for the whole of the 2012 school year for both children are due and owing. The wife annexed a copy of the scale of fees including payment options and the tax invoice from the school to her affidavit sworn 15 February 2012. It is clear from those documents that the fees can be paid monthly, in three instalments or if paid in full by 2 March 2012 the parties would receive a 2 per cent discount.

4. The wife also seeks an order that the husband pay his half share of the costs of school texts books, uniforms and other school related expenses paid by her during 2011 to date in the sum of $1016.17. The husband agreed to make that payment.

5. The wife’s evidence is that, as anticipated by the child support agreement, she has maintained private health insurance for the children but that, since orders were made by Justice Mushin in July 2008 by way of enforcement of that agreement, the husband has not contributed his half share of that private health insurance. It is her evidence that she maintains private health insurance cover for herself and children at a total cost of $270.80 per month. She has divided the cost of that cover by three and attributed the sum of $180.52 being two thirds of that amount to the children. The husband’s half share of the payments she paid for the children for the period from July 2008 to February 2012 amounts to $3881.19.

6. It is clear from the wife’s evidence and the documents annexed to her affidavit that she has paid a total of $4671.98 and received a refund of $2672.95 for medical and orthodontic treatment for N leaving her with current out of pocket expenses of $1,999.03. She will have further out of pocket expenses for her orthodontic treatment of $1,087.  It is the wife’s evidence that N’s orthodontic treatment will be $6200 in total, of which she has paid $4713 and has received a rebate of $2,232.95 from HCF, the private health insurer. The amount of $1,543 sought by the wife includes the husband’s half share of the sum of $1,999.03, being the out of pocket expenses to date, and the sum of $543.50 which is the husband’s half share of the out of pocket expenses which the wife deposes will be required for the completion of his treatment.

7. The total cost of L’s orthodontic treatment is $6,600. The wife has paid $900 of that amount to date leaving further orthodontic expenses of $5,700. The wife’s evidence is that the husband’s share of what she described as anticipated out of pocket expenses for the balance of L’s orthodontic treatment is $1,983.52. The wife has paid a total of medical and orthodontic expenses for L of $4,837 and received a refund of $1860 leaving her with out of pocket expenses of $2977 to date, the Husband’s half share being $1488.50.

8. The wife has also incurred out of pocket medical expenses for the children after receipt of the Medicare refund of $1,195.60, the husband’s share being $597.60.

9. Based upon all of the wife’s evidence and the documentation she has produced in support of that evidence I accept the amounts she says are owing by the husband pursuant to the child support agreement.

The husband’s case

1. The husband’s evidence was both evasive and disingenuous. I am satisfied that he tailored his evidence to suit his case, shifting his position on a number of occasions throughout the proceedings. He was unable to see any perspective other than his own, which was in most cases self serving and bore little relationship to the reality. I have no confidence that even he genuinely believed in the case he was putting. 

2. When confronted with questions he did not like or issues that he perceived might not advance his case the husband attempted to avoid those issues by falling back on the problems he faced as a self represented litigant, claiming ignorance of his rights and the nature of the proceedings and from time to time suggesting that he might need to make further applications, and then giving evidence that he did not intend to do so. Prior to the wife giving her evidence I explained to the husband the way in which the proceedings would be conducted. At that time he had the opportunity to seek an adjournment but declined to do so. The wife then proceeded to give her evidence and be cross examined by the husband. It was not until the husband was in the witness box and being cross examined by Mr Hannon on behalf of the wife that he decided that he wanted to seek an adjournment. The reason he submitted for that adjournment was that he believed he had not presented his case and that he had not understood the process. However he then reiterated his case that he had not been consulted by the wife in relation to the children’s schooling.  The husband had already conceded that it was not appropriate to change L’s school at this late stage and I was not satisfied that the father intended to make any application with respect to N’s school. In any event, a hearing of the enforcement application would not preclude him making any such application in the future and I declined to adjourn the matter.

3. The second aspect of his case is that although the husband says he should have been consulted in relation to the payments other than school fees, in particular whether or not the children required medical and orthodontic treatment, in cross examination the husband stated that he has not paid for two reasons. Firstly because of his “not knowing what they are doing” and secondly, because he said “it’s not the best thing for them.” The husband acknowledged however that he had limited ability to determine what was in their best interests given the fact that he was not seeing them. The husband ultimately conceded that he has an obligation to pay half of the other costs associated with the children’s education, out of pocket medical, dental and orthodontic expenses and the cost of maintaining private health insurance for the children. However, he either disputed the calculation of the amount sought by the wife or sought proof of the amounts claimed by the wife in her application.

4. I will deal firstly with the issue of the payment of school fees. In summary the husband’s case was that the children no longer spend each alternate week with him, he did not agree that their current school was the right school for them, to the contrary he has advised the school that he does not agree to their enrolment and will not pay the fees and that he should not now in those circumstances be required to pay the school fees. The husband’s case was that it was part of the agreement, and that the wife was obliged pursuant to the orders, to discuss issues with respect to the children’s welfare including but not limited to their education.

5. The child support agreement makes no provision for the parties to have any discussions with respect to the children’s schooling. Pursuant to the parenting orders made 13 May 2010 the parties were required to participate in a Parenting Orders Program with Centracare or another provider as agreed between the parties and there was a notation to those orders to the effect that the parties proposed to discuss the children’s schooling arrangements at the conclusion of 2010. The husband’s evidence was that he had made numerous attempts to discuss alternative schooling with the wife. That was denied by the wife who pointed out that when the husband attended the children’s parent teacher interviews in 2010 he didn’t ask any questions or express any concerns. Even if the husband had concerns about the children’s schooling, not meeting his obligations pursuant to the child support agreement was not the appropriate way to address those concerns. Whether the wife did or did not fail to consult with the husband as alleged by the husband is in my view not material to the enforcement application in this case. The child support agreement is not conditional upon there being either discussions or agreement as to the children’s education or participation in a Parenting Orders Program.

1. The children are being educated in the manner the parties clearly intended both during the marriage and following separation as evidenced by the provisions of the child support agreement. Not only has the husband not made any application to change the children’s schools, it is clear from his evidence that he has not even made any preliminary enquiries as to any possible alternatives.

2. Whilst I have a general discretion as to whether or not I should make orders by way of enforcement, I do not take the view even if I were satisfied, which is not the case, that the wife had not met her obligations pursuant to the orders of the 13 May 2010, that, in the circumstances of this case, that would be a reason for not enforcing the agreement.

3. The husband also relies upon the fact that the arrangement with respect to the children’s care has changed in that the children now live with the wife on a full time basis. It is his case that that in some way justifies his decision not to pay the school fees. To the contrary one might think that would be a reason why he should pay more towards the cost of supporting the children not less. Nor does what he says is his concern for the children’s welfare sit well with a decision not to contribute to their support.

4. The husband’s case with respect to the other amounts sought by the wife was in summary as follows:

   a.He did not accept the basis upon which the wife had calculated the cost of the children’s private health insurance. He was primarily concerned that the cover also included her new husband and that the wife’s calculations had not allowed for the tax rebates she had received. The wife’s evidence, which is supported by the Statement of Claims from her private health insurer annexed to her affidavit, is that the health insurance cover is for herself and the two children. I accept her evidence. The wife’s evidence with respect to the tax rebates was that she had looked at her tax returns but was not aware of any rebate. Doing the best I can on the evidence available to me and having regard to the fact that is not always easy to allocate proportions of expenses as between a parent and the children in circumstances such as these, I am satisfied that the wife’s apportionment of the cost of the private health insurance is in all of the circumstances reasonable. Notwithstanding the fact that the husband now says that he will pay his share of the health insurance subject to some clarification, he has made no payments since the matter was before Mushin J in 2008 and offers no explanation for not doing so. There is also no evidence of the husband having made any attempt to clarify the calculation of the amounts the wife says are owing.

   b.The husband objected to the payment of the children’s medical and orthodontic expenses on the basis that he had not been consulted, and also on the basis that as he said some part of the amounts sought by the wife were based upon future payments that she would be required to make, rather than expenses already incurred. Whilst the wife conceded that some of the amounts she was seeking the husband pay were future payments, and she was therefore forecasting what she would have to pay, it is clear from her evidence and the documents that she has produced that the further payments relate to the fixed cost of a course of treatment which has already commenced and that the wife will have to pay those amounts in order to complete that course of treatment.

5. I accept the wife’s evidence with respect to the amounts she has paid and is required to pay. The wife’s evidence is that the orthodontic treatment was necessary and that is supported by the documents annexed to her affidavit. Whilst the husband again complained that he had not been consulted in relation to the necessity of the orthodontic treatment, even he did not suggest, and nor was there any evidence to suggest, that the wife was not acting in the children’s best interests with respect to their medical, dental and orthodontic requirements. 

Enforcement

1. Pursuant to s 95(3) of the Child Support(Assessment) Act 1989 (Cth), Division 13A  of Part VII, and Parts XIII and XIIIB of the Family Law Act 1975 (Cth) apply to the provisions of a registered child support agreement in so far as it relates to non-periodic payments of child support.

2. The processes for enforcing the obligation to comply with the provisions of the agreement are set out in Chapter 20 of the Family Law Rules 2004 (Cth). Rule 20.07 sets out the general enforcement powers of the Court. They include the power to declare the total amount owing, to order that the total amount owing must be paid in full and/or by instalments and when that amount must be paid.

Husband’s capacity to pay

1. In so far as it is asserted by the husband that he is suffering some “financial hardship” and does not have the capacity to meet his obligations, that assertion is contradicted not only by the wife’s evidence but by the husband’s own evidence.

2. The wife’s evidence is that following property settlement the husband retained 12 properties, which she says at that time had a value of $2.5 million subject to a debt of $688,000. The wife’s evidence is that the husband has acquired two further properties since the property settlement was finalised. The husband agreed that the he owns those properties save and except that the property at E Street, Suburb R and the more recently acquired property at Z Street, Suburb Y are owned by the Payne Family Superannuation Fund and registered in his name as trustee of the fund. The husband is the only member of that fund.

3. The wife has obtained market appraisals of the properties retained by the husband as part of his property settlement. On the basis of the market appraisals obtained by the wife together with the purchase price of the two recently acquired properties, the total value of the properties owned by the husband either personally or in his capacity as trustee of his superannuation fund is somewhere between $3.99 and $4.54 million. The two properties purchased by the husband since the property settlement were purchased for $289,000 and $260,000 respectively. The husband initially disputed this estimate of value on the basis that the agent was a family friend and because they were appraisals and not sworn valuations. However when it was put to him that his property portfolio was worth approximately $4.3 million he disputed that figure on the basis that the market had dropped. He agreed with me when I suggested that the market might have dropped by approximately 10%. Even if that were the case his property portfolio would be valued at approximately $3.87 million.

4. The husband also gave evidence that he has a line of credit which has a current balance of approximately $788,000. It is clear on his evidence that since the property orders were made he had reduced the line of credit balance by some $200,000 and had been able to maintain, notwithstanding what he said was very limited income, the various properties he had retained following the breakdown of the marriage as well as acquiring two further properties. It was his evidence that he had drawn down on that line of credit for the purchase of the property at Q Street. He also gave evidence that he had recently borrowed $30,000 from his mother for the fit out of his hospitality business.

5. It is not necessary for me to make a finding as to the exact value of the husband’s property portfolio suffice it to say that I am satisfied that the husband has at all times had, and currently has, the capacity to meet his obligations pursuant to the child support agreement, and that he has assets from which he can meet any order I make enforcing that agreement. It is clear from his evidence that the husband has maintained his property portfolio and acquired further assets in preference to meeting his obligation to pay child support. Notwithstanding his assertions of financial hardship, his evidence was clear. His reasons for not meeting his obligations were that he did not know what his children were doing and that it was not the best thing for them, not any real lack of capacity on his part.  I am satisfied that if necessary he could sell a property in order to meet his obligations for child support.

6. The husband made the point, referring to the value of his property portfolio, that one cannot live on bricks and mortar. As was pointed out to him by Mr Hannon, neither can his children.  However he also made it clear that he did not want to dispose of any of the properties in his name and, more importantly for the purposes of my findings, that it would not be necessary for him to do so. The husband later attempted to qualify this evidence by suggesting that, although he was in the process of refinancing, it could take him six months to do so, and he ultimately sought three months to do so. I do not have any evidence, other than that of the husband, which I do not accept, which would support his assertion that he would need either six months or three months to refinance. 

Security for future payments:

1. I am also asked by the wife to make orders for the sale of the property at C Street, Suburb B and that the proceeds of sale be held in trust and applied to the husband’s ongoing obligations pursuant to the child support agreement until 31 December 2014 being the date that N will complete VCE.

2. Whilst I am satisfied that I should order the husband to pay those amounts outstanding pursuant to the child support agreement, I am not satisfied that I can or should make orders in anticipation of the husband further failing to meet his obligations pursuant to that agreement.

3. The husband should however be aware that any further failure on his part to meet his obligations pursuant to the child support agreement will almost certainly result in further enforcement proceedings and the possible sale of property owned by him as will be the case in the event that the husband does not make any payment that I order him to make within the time that I specify such payment to be made.

Term Deposit Held in Trust for the Children

1. Paragraph 2(a) of the final orders for property settlement made 18 May 2007 required the husband to place the sum of $4,500 in trust for each of the children and the parties to be appointed and remain trustees of that investment until each of the children attain the age of 18 years.

2. Although the husband has not met his obligations pursuant to the child support agreement there is no evidence before me to suggest that the husband has not acted in accordance with his obligations as joint trustee in relation to the moneys held in trust on behalf of the children and on that basis I do not propose to vary the order, even assuming that the order sought by the wife would be a machinery provision rather than a substantive provision and capable of variation.

The Husband’s Response

1. The husband filed his response to the wife’s application on 17 February 2012.

2. He sought orders, inter alia, that the wife disclose her financial position to the Court. Although arguably I might in certain circumstances, in exercising my discretion to enforce the terms of the agreement, have regard to the wife’s financial position, this is not such a case. The husband did not seek to set aside the child support agreement and I have found that he had and continues to have  the capacity to meet his obligations pursuant to that agreement. In those circumstances I do not consider that it is necessary for the wife to file a financial statement. The agreement remains in force and she is entitled to seek enforcement of that agreement. 

3. Although it is clear from the husband’s response that he agreed in principle to pay his share of L’s 2012 school fees, that was on the condition that the monies held in trust on L’s behalf be applied to those school fees. As I have found that the husband has the capacity to pay his half of the school fees I do not propose to make the order sought by the husband.

4. The husband did not pursue either an application to have the wife provide him with written monthly reports advising as to the children’s health and wellbeing, schooling and travel nor did he pursue an application for contravention or seek orders for the wife’s compliance with the orders made 13 May 2010. The husband ultimately did not pursue the orders in his response other than in a general sense and by way of opposition to the wife’s application and they are more accurately described as a statement of the husband’s position rather than orders that a Court might make.

5. In those circumstances I do not propose to make orders in the terms sought by the husband.

Conclusion

1. It was put to the husband in cross examination that at the time Mushin J made orders in July 2008 he clearly explained to the husband in Court his obligation to comply with the provisions of the child support agreement. The husband responded that “that is not true” but clarified that statement on the basis that he said his Honour “did not read out the child agreement in front of us”. He ultimately conceded that his obligation to comply with the agreement he had signed was made clear to him but that he “did not consent for my children to attend [P School] for the rest of their lives.” It is hard to understand why in those circumstances the husband did not comply with the terms of the agreement.

2. It is similarly hard to understand how, a matter of months after consenting to orders that the children live with the wife, with a notation to those orders that the child support agreement remain in full force and effect, the husband could possibly conclude that he no longer had a responsibility to meet the expenses pursuant to that child support agreement, and that by simply writing to the school advising the school that he was no longer responsible for those fees he would no longer have to meet that obligation.

3. The husband has offered no reasonable explanation for his failure to meet his obligations pursuant to the child support agreement nor has he demonstrated any lack of capacity to do so. In all of the circumstances I propose to make the orders sought by the wife by way of enforcement of the child support agreement total of $43,649.80.

4. Given the husband’s evidence that he will not need to sell any of his real estate to satisfy any order I might make, and doing the best I can on the basis of the evidence I have before me, I propose to give the husband 45 days in which to pay the sum of $43,649.80, however for the purposes of giving effect to my order, in the event that he fails to make that payment I propose to order the sale of the property at C Street, Suburb B.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 March 2012.

Associate: 

Date:  30 March 2012