v and v - [2002] FMCAfam 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

V & V

[2002] FMCAfam 7

CHILD SUPPORT – Application for discharge of registered agreement – non-periodic payments – power factors to be considered – dispute over 2 items not evidence that agreement was not proper or adequate nor change in circumstances.

Davenport v Davenport (1994) FLC 92-454
In the marriage of Wild and Ballard 22 Fam LR 291
George Paul Grossman v Mary Anne Rossi (Unreported Fam Ct of Aust Mullane J. 21 Feb 2000)

Applicant:

Respondent:

File No:

ZP 4051 of 2001

Delivered on:

17 January 2002

Delivered at:

Parramatta

Hearing Date:

8 January 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Ms R K Ashes

Solicitors for the Applicant:

Levi Peatman Solicitors

The Respondent appeared in person.

ORDERS

Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 4051 of 2001

Applicant

And

Respondent

REASONS FOR JUDGMENT

By an application filed on 27 November 2001 the father, VV, applied to this Court for an order that the Child Support Agreement entered into by the parties and accepted by the Registrar on 8 April 1999 be discharged. The Child Support Agreement which was filed with the papers was in fact signed on 3 April 1998 and accepted by the Agency on 8 April 1998.
The parties were married overseas on 15 September 1985 and there are two children of the marriage whose dates of birth are 13 September 1986 and 8 August 1989. The parties separated on 5 January 1998.
On 20 April 1998, the Family Court at Sydney made orders by consent in relation to residence and property issues. The residence arrangements were very slightly altered by consent on 30 January 2001. The residence arrangements are that the children spend four nights with the mother and three nights with the father. Previously this encompassed five days with the mother and two days with the father. It now encompasses four days with the mother and three days with the father.
The terms of the agreement relating to child support are short and are reproduced below:
4 TERMS OF AGREEMENT
4.1 That the parties bear in equal shares, the following expenses relating to the children:-
(a)education expenses including but not limited to school fees, stationary [sic], excursions, school uniforms and fees of attending the Serbian school;
(b)sporting expenses including but not limited to fees and uniforms;
(c)clothing and footwear expenses;
(d)medical, dental, orthodontic and optometrist expenses
and that all other expenses for the children be paid for by the party in whose care the children are at the time the expense arises including but not limited to food, toiletries and other general household expenses.
4.2 The parties agree that the effect of clause 4.1 is that they are each contributing approximately $165.00 per week to the financial support of the children.
4.3 The parties agree that the arrangement in clause 4.1 constitutes for the purpose of s 84(1)(d) of the Act, provision of child support for the children otherwise than in the form of periodic amounts and has an estimated value of $8,580.00 for each of the parties.
4.4 The child support payable by the parties pursuant to clause 4.1is to account for 100% of the liability of the parties respectively to pay child support during the period in which this Agreement remains in force.
4.5 This Agreement is intended by the parties to be registered with the Family Court of Australia at Sydney pursuant to Section 95(3)(b) of the Act.
4.6 Within 14 days of this Agreement, the parties are to do all things and sign all documents necessary to cause the Agreement to be registered with the Child Support Agency and the Family Court of Australia.
The first matter which I am required to consider is whether or not the Court has power to intervene in relation to an order of this type made by consent and accepted by the Child Support Agency. There have been a number of cases on this issue and I was referred to Davenport v Davenport (1994) FLC 92-454 and In the marriage of Wild and Ballard 22 FamLR 291. I am not sure of the relevance of either of those cases because they both dealt with periodic payments and this is a case where the payments are specifically classified as non-periodic. However, para 13 of the Davenport decision gives a clear indication of the requirements that a party seeking to vary or discharge such an order must meet.
13. Basically it means this: where you have an existing agreement for child support you have to show that it is not proper or adequate, or you have to show there has been a change in the circumstance either of the payer, the payee or the children since the order was last made. Once you establish one of those threshold matters you have to establish that to change it would be both just and equitable as against everyone concerned, and proper as far as the community is concerned.
Ms Ashes on behalf of the applicant adopted this paragraph and proceeded to run her case on the basis that this was the test with which her client was required to comply.
In George Paul Grossman v Mary Anne Rossi (unreported, Fam Court of Australia, 21 Feb 2000) Mullane J considered a number of relevant sections in the context of an application to discharge a registered Child Support Agreement “with the intention that the basic formula would then be applied”. He found that this could not occur but in doing so commented on s.98 of the Act as follows:
25. The particular provisions of the present accepted agreement relate to provision of child support by periodic payments to the carer entitled to child support. There is no power for a Court to discharge, suspend, vary or revive orders of that type. Those powers apply only to orders which require child support other than in the form of periodic payments paid to the carer entitled to child support.
I am satisfied that s.98 gives me power to vary or discharge the agreement presently before me.
The respondent did not file a response. She said this was because she sought advice from the Help Line of the Federal Magistrates Court and was told this was not necessary and that she should put everything she wished into her affidavit. The affidavit clearly indicates that she does object to the application and does not believe that the agreement should be discharged. She makes no comment as to whether it should be varied and Ms Ashes, in her closing submissions, asked me to find that she made no such application. I will deal with this aspect of the matter later in this judgment. The applicant proceeded with his attempt to comply with the dicta of Kay in Davenport as quoted above by giving evidence in accordance with an affidavit filed on 27 November 2001. In the affidavit in para 6 he states:
6. Following the wife and I entering into the Child Support Agreement for the first few months it worked satisfactorily. Thereafter the wife started to refuse to bear her share of expenses. Whenever there was a major expense (such as V orthodontic treatment) the wife would object and refuse to pay her share. Another good example is a winter jacket I purchased for V costing one hundred and sixty dollars ($160) to which the wife subsequently refused to contribute her one half share.

And at para 8 he says:

8. At the present time I pay for all of the children’s major expensive items. For example, in the last six months I have met health care expenses for the children in the sum of one thousand three hundred and ninety seven dollars and twenty five cents ($1,397.25), clothing six hundred and seventy eight dollars and twenty six cents ($678.26) and education and related matters five hundred and thirty three dollars and seventy cents ($533.70) without any re-imbursement from the wife. She has not paid any equivalent sums.

He goes on to say that he has not communicated with the wife nor has she communicated with him since May 2001.
Under cross-examination from the wife a rather different state of affairs was revealed. The husband agreed that the wife had made attempts to contact him. He agreed that he contacted her when he wished to make any change to the residence arrangements, he agreed that he had received $150 for high school fees and that he had received one half of the high school fees. The husband also agreed that at least until March 2001 the parties had reconciled the differences in payments between them via the email and that this practice only ceased because of the wife’s refusal to pay for the orthodontic treatment or her share of the jacket. The husband agreed that the daughter had asked him for $135 for school excursion fees, which he had refused. He also agreed that he had not paid any fees in respect of the daughter’s extra lessons at Top Ryde apart from two weeks.
In response to a series of questions from myself the applicant agreed that, with the exception of the matters raised in his affidavit, subpara (a) of para 4.1 of the Agreement had been complied with. Subparagraph (b) had not been completely complied with but he would not argue about it. He felt he was paying slightly more. In respect to subpara (c) he felt that, apart from the matters in the affidavit, the arrangement was being complied with and in respect of subpara (d) he felt that was being complied with except for the orthodontic dispute. He accepted that when he took the children to the doctor they were bulk billed so there was no outgoing made by him in that regard. Finally, he agreed under further examination that the sports expenses (subpara (b)) were now being paid by the wife as she now has the children on sports days).
By the end of the proceedings it appeared clear to me that there were only two matters in dispute between the parties, the orthodontic treatment required by the son and the purchase of jacket allegedly for schoolwear by the son.
The wife also gave evidence by affidavit. The applicant through his counsel objected to a number of the paragraphs within that affidavit. Several of them were struck out. I did not strike out a paragraph relating to the orthodontic treatment where the respondent deposes to a conversation she allegedly had with the orthodontist. I felt that this was important background but I did not accept it as evidence of what the orthodontist believed or what was appropriate for the son or indeed what the orthodontist said to the respondent. In regard to the orthodontic treatment the affidavit does establish (and this was not denied by the applicant) that the respondent paid her one half of the initial consultation fee.
It was not made clear to me whether the figure in respect of medical accounts paid by the applicant in his affidavit was just the orthodontic treatment nor whether that figure included the $400 initial consultation. Given the applicant’s evidence about bulk billing I suspect that the $1,397.25 is solely the orthodontic treatment. I was advised by the parties that the orthodontic treatment has now been completed.
The respondent in her evidence and under cross-examination stated that she was willing to talk to the applicant but that he has been unwilling to talk to her for some time. She stated that there had previously been regular communications between them and that they resorted to email when that became easier than sitting down over coffee. She was happy to continue to reconcile their respective payments in accordance with the Agreement either by email or face to face. She pointed out that the Agreement has continued for approximately four years with only the matters raised in the affidavit being those in contention.
The applicant submitted that the Agreement had broken down and was incapable of being revived and that this constituted evidence that the Agreement was nor proper or adequate. The inability of the parties to agree on matters such as the orthodontic treatment and the purchase of the coat was evidence that there had been a change in the circumstances of the parties. Counsel submitted that it was not open for one of the parties to unilaterally decide what should or should not be paid for and that if this occurred it established that the Agreement was not adequate for the circumstances. The applicant submitted that it was only reasonable that the Agreement should now be discharged so that the parties could be assessed by the Child Support Agency for their proper contributions to the care and maintenance of the children.
I had the opportunity of seeing both parents in the witness box. I accept that there is still some animosity between them but I think that both were honest in their answers and made appropriate concessions. Nothing which I heard from either of them convinced me that this Agreement had so completely broken down that it was no longer proper or adequate and that the breakdown evidenced a change in circumstances. On the other hand I did hear some evidence that the father had received notification from the child support agency that if he had been assessed for periodical payments he would have received approximately $150 per week from the wife. The prospect of this windfall may have influenced him in his decisions relating to the application presently before me.
It is quite clear that the object of the Family Law Act and other related Acts, including the Child Support (Assessment) Act is to encourage agreement between parties and to discourage resort to the courts. These parties entered into an Agreement. The Agreement has the quality of brevity. It has been in existence since April 1998, three months after the parties separated. The only problems that have arisen have occurred over two items of significant expense. The applicant argues that the respondent is wrong to have refused to make payment of her one half share of these items. It could be equally argued that the applicant was wrong to decide to make those payments without some discussion with the respondent. Any Court considering such an Agreement would apply the condition of reasonableness to the obligations. With the benefit of hindsight it might have been better if the Agreement had contained a clause requiring the parties to consult in respect of discretionary payments of over a particular figure. This could form a variation to the Agreement, although I doubt whether this is really necessary given the ages of the children and the maturity of the parents. It is my view that up until the time the problem of the orthodontic treatment manifested itself the Agreement had worked adequately. I do not believe that it would be just and equitable as against everyone concerned and proper as far as the community is concerned for it to be discharged and for the community to be required to fund the cost of an additional file to be managed by the Child Support Agency. I am not prepared to make an order discharging the Agreement.
I now turn to consider whether or not I should vary the Agreement. The evidence is that the two parents each had been paying for the reimbursable items and then reconciling the figures and making balancing payments to one another. This ceased in approximately April 2001 for reasons already given. The respondent has not requested a variation of the Agreement and I understand from the submission of the applicant that he would regard a unilateral decision by me to change the document as inappropriate. I certainly think it would be inappropriate unless I put my proposals to the parties.
In the result, I have decided not to make any variation to the Agreement. I do this because I believe that there is imposed upon the parties, in any event, an obligation of reasonableness in relation to the expenses. I would suggest to the parties that they attempt to agree a figure over which no outlay should be made without consultation, perhaps $250 would be appropriate. I would suggest to the parties that they revive their previous arrangement for reconciliation of expenses either by personal meeting or through email and that if they cannot come to an agreement relating to the orthodontic treatment and the coat they seek resolution through some alternative dispute resolution process. These are only suggestions but the parties have the right to apply to this Court or any other appropriate Court for a variation of the Agreement to include clauses to this effect should they feel it is necessary.
I dismiss the application. I make no order as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: