Zabarac & Zabarac (No 2)

[2012] FamCA 1065

FAMILY COURT OF AUSTRALIA

ZABARAC & ZABARAC (NO 2) [2012] FamCA 1065

FAMILY LAW – CHILD SUPPORT – Application in relation to private school fees – Limited order made pending final hearing

Child Support (Assessment) Act 1989 s 124

APPLICANT: Ms Zabarac

RESPONDENT: Mr Zabarac

FILE NUMBER: SYC 3820 of 2012

DATE DELIVERED: 21 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 21 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Brown & Brown

Pending further order

1. That pursuant to s 124 of the Child Support (Assessment) Act, and in addition to any current Child Support Assessment for the children the parties shall pay in equal shares all outstanding fees due to M College as set out in a letter from M College dated 12 November 2012 for the enrolment, tuition and any extra curricular activities for the children of the marriage:

   (a)C - D.O.B. … January 2002; and

   (b)E - D.O.B. … January 2004

   attending at M College.

2. That pursuant to s 124 of the Child Support (Assessment) Act that the parties pay in equal shares the tuition fees, and any extra-curricular activities for the children’s attendance at M College until the end of 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zabarac & Zabarac (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 3820 of 2012

Ms Zabarac

Applicant

And

Mr Zabarac

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. There is an outstanding issue in relation to child support at paragraph 107 of my reasons delivered 19 November 2012.  Issues in relation to child support were discussed at paragraphs 99 through to 107.  The gravamen of those matters is that I accepted that from income the parties lacked the capacity to support the children’s ongoing attendance at M College (“M College”).  It was in those circumstances that the wife was invited to indicate whether she would commit to one-half of the costs associated with the children’s attendance at M College, the point being that this would almost certainly have to be made from property.  It was indicated that unless the wife made that commitment, her application for orders in relation to child support would be dismissed.

3. The wife has made that commitment today, and it is in the context of that commitment that the outstanding child support issues are addressed.  The parties have reached agreement in relation to the provision of school fees but have not been able to agree upon the wife’s application that addresses the other educational expenses associated with attendance at M College.  She puts forward a minute of order, which moderates the position contained in her Application in a Case that all the expenses associated with M College are met with the husband which, consistent with my invitation, is to the effect that the parties pay those expenses equally.

4. The order as drafted seeks to address the position beyond 2013, although I understand during the course of exchanges it was conceded that that order would be effective until the end of 2013.  If I misunderstood the concession, it is my view in any event that the Court should address the issue about expenses associated with M College no further than 2013, the point being that the parties are in all likelihood to come on for a final hearing during 2013.  The issues in relation to the children’s education in 2014 and following can be addressed then.

5. I take into account the findings already made in my reasons for decision published on 19 November 2012, and remain of the view that it is just and equitable that the parties share equally the additional expenses associated with the children’s attendance at M College. In so finding, I accept that the probability is that for each of them, this is going to involve asset realisation rather than payment out of income. This is an arrangement comfortably accommodated by Child Support (Assessment) Act 1989 and the relevant provisions referred to in paragraph 99 and 101 of my reasons of 19 November 2012. An order will be made along the lines proposed by the wife, to continue no further than the end of 2013.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 November 2012.

Associate:      S Mills

Date:              19 December 2012