The recent case of Polik & Polik  FamCA 299 (28 April 2015) involved a wife and husband who were not separated and who remained living together, with their three children, throughout court proceedings.
The parties had previously attended mediation and entered into: a Binding Financial Agreement; a Binding Child Support Agreement and a Parenting Plan.
The parties’ Binding Child Support Agreement provided that the husband was obliged to pay for extracurricular activities for the children outside of their school activities ‘as agreed’; and the Binding Financial Agreement provided that the husband pay the wife $600 per week in spousal maintenance.
The wife initiated proceedings after the husband stopped paying her $600 per week for approximately two and a half months. As a result of the break in payments, the wife asserted that the husband owed her $8,231.56 (inclusive of interest).
The husband submitted that he stopped making the payments after the wife unilaterally enrolled the parties’ two sons into a one year program of private tutoring at an annual cost of $15,000. The wife paid the first instalment of $6,745 using a credit card to which she had access but which was paid for by the husband.
The husband did not agree to the tuition and after some correspondence between the parties’ solicitors the husband agreed to pay the amount previously charged to the card and the remainder of the tuition or 2014. However, the wife subsequently unilaterally enrolled the boys in the same program for 2015 and made another payment of $7,500 using the same credit card. In response, the husband requested that the wife suspend enrolment and refund him the $7,500. The wife did not respond to that request.
As a result, the husband suspended the weekly payments of $600 to the wife and told her he was offsetting that amount against the $7,500 she had incurred on the credit card.
Counsel for the wife submitted that the tuition fees were covered by the spousal maintenance provisions of the Financial Agreement, because they fell within the meaning of ‘all expenses of Ms Polik during the marriage’. In considering this argument, the Court reviewed the terms of all of the agreements, with specific regard to the fact that the expenses for the boys’ extra-curricular activities were caught within ‘child support expenses’ in the Binding Child Support Agreement. As such, the Court did not accept that the Agreements, when considered together, could be construed to mean that any unilateral spending of the wife in relation to children’s expenses could be treated as expenses for spousal maintenance purposes. The Court did not accept that to be the intention of the parties.
The Court ultimately agreed with the course of action taken by the husband and was satisfied that the husband had paid the wife a lump sum of $7,500 in advance of her entitlement.