Adams and Simpson - [2008] FMCAfam 1327

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ADAMS & SIMPSON

[2008] FMCAfam 1327

FAMILY LAW – Adult child maintenance.

Family Law Act 1975, ss.66J(3), 66L(1)

In the Marriage of Tuck (1989) FLC 91-021
B & B (1998) FamCA 1713
Re AM [2006] FamCA 351
C & L [2002] FMCAfam 163
In the of Marriage of FM (1997) FLC 92-738
KEK & BK [2005] FMCAfam 250
In the Marriage of Henderson (1989) FLC 92-011

Applicant:

MS ADAMS

Respondent:

MR SIMPSON

File Number:

MLC 2712 of 2007

Judgment of:

Baker FM

Hearing date:

14 November 2008

Delivered at:

Hobart

Delivered on:

19 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Manova

Solicitors for the Applicant:

Counsel for the Respondent:

Mr Grant

Solicitors for the Respondent:

ORDERS

That the amended application of the mother filed the 27^th of July 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Adams & Simpson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

MLC 2712 of 2007

MS ADAMS

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the mother against the father for periodical adult child maintenance of $145.00 per week. In her affidavit filed

20 August 2008 the mother indicated that she was seeking an order in the alternative, of a lump sum to enable [J] to attend training, obtain driving lessons and set up for independent living.
The parties are the parents of the children [K] born in 1987 and [J] born in 1989.
[J] has Asperger’s Syndrome. He also has been diagnosed with Postural Hypotension. He is in receipt of a disability support pension. He has never worked in paid employment.
The mother contends that [J] is incapable of employment because of his Asperger’s Syndrome.
The father contends that [J] is capable of employment.
The father also contends that he does not have the capacity to pay the periodic maintenance sought by the mother.

Short History

The Applicant mother was born in December 1967. The Respondent father was born in June 1969. [K] was born in December 1987. [J] was born in February 1989.
The parents never lived together and were not married.
The father has not spent time with the children on a regular basis, and the last time he saw the children was at his father’s 60^th birthday in December 2005.
The mother has never made an application for administrative assessment of child support. The father gave the mother cash on an intermittent basis until late 2006. In December 2006, the father told the mother he would not be paying any further monies to her after [J] turned 18 in February 2007.
The mother has been offered and accepted employment for three years as an [occupation omitted] on a salary of $55,000. She completed a [omitted] degree in 2007.
The father is [occupation omitted]. His annual income is over $54,000.

The Evidence

The Applicant mother relied on the following:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams and Simpson

Details

AGLC: Adams and Simpson [2008] FMCAfam 1327
Case: [2008] FMCAfam 1327
Decision Date: 19 December 2008

CaseChat Overview and Summary

Adams and Simpson was a case where the court had to decide on the issue of child maintenance for a child with disabilities. The mother sought maintenance for her daughter, who had cerebral palsy and associated mental deficits, arguing that her condition made her incapable of supporting herself. The court was required to determine whether the mother had discharged the onus of proving that the daughter's maintenance was necessary and if the standard of proof in such cases was different from that in other civil proceedings. The case was guided by previous decisions such as FM and FM, B & B, and Re AM, which established that the onus of proof in maintenance cases is on the balance of probabilities, and that there is no higher standard of proof for such cases. The court also considered the statutory provisions under the Family Law Act, particularly sections 66J and 66L, which outline the factors to be considered in determining the necessity of maintenance, including the child’s proper needs and financial resources.

The court examined the evidence presented regarding the daughter's condition, her ability to earn income, and the overall circumstances of the case. It was noted that the daughter had been mentally ill since early childhood, which impacted her ability to work. The court had to weigh these factors against the statutory guidelines and previous judicial interpretations. Ultimately, the court found that the mother had not sufficiently proven that the daughter's maintenance was necessary under the criteria set out in the legislation and case law. The decision hinged on the interpretation of "necessary" as defined in previous cases, which required a demonstration that the maintenance was needed for one of the specified reasons and was reasonable in the given circumstances.

In light of the court’s findings, it dismissed the mother’s application for child maintenance. The decision underscored the importance of clear and convincing evidence to meet the statutory and judicial standards for proving the necessity of maintenance. The court’s reasoning reflected a careful application of statutory interpretation and judicial precedent, ensuring that the decision was consistent with the legal framework governing child maintenance in Australia.

The final order of the court was that the amended application filed by the mother on 27 July 2007 be dismissed. This order reflected the court's conclusion that the mother had not met the required burden of proof to establish the necessity for ongoing maintenance for her daughter.

Orders

Orders of the court

That the amended application of the mother filed the 27th of July 2007 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Re AM[3]Carmody J considered the case of FM and FM. His Honour said: “In FM and FM [4] Reg. McGrath refused an application for child maintenance brought on behalf of a 19 year old child with cerebral palsy and associated mental deficits. The subject child had been mentally ill since her earliest years but failed because she did not discharge the heavier that usual onus (sic) said to be on her to prove that she had no earning capacity.The source of the Registrar’s ruling in FM seems to be the following passage in an online article published by Laura Morgan in 1997:Because the duty to support a child ordinarily terminates when the child reaches the age of majority, it is up to the party asserting that the burden should not terminate to show that the adult child is in such a feeble and dependent condition physically or mentally as to be incapable of supporting him or herself. Moreover the burden is generally not just a preponderance of the evidence but is clear and convincing evidence (emphasis added)[5][3][2006] FamCA 351 [4] [1997]FLC 92-738[5] Paragraph 93 Carmody J went on to state that there is not a higher standard of proof in maintenance proceedings than the standard of proof in civil proceedings. Carmody J also referred to B & B [6] in which Carter J dismissed any suggestion that a claimant for maintenance under the second limb of section 66L(1) bore a higher “onus” than a child seeking education maintenance under the first limb of the same section. [6] (1998) FamCA 1713 In accordance with the authorities of B & B and Re AM, the Mother has the onus to prove, on the balance of probabilities, that the provision of maintenance for [J] is necessary because of [J]’s mental disability. The court must be satisfied that the maintenance is necessary. The Full Court in In the Marriage of Tuck[7] held that ‘necessary’ meant that maintenance for a child was for one of the specified reasons and it was reasonable in the circumstances that a parent contribute towards a child’s support. This interpretation was confirmed In the Marriage of Henderson.[8][7] ( 1989 FLC 91-021) paragraphs 94-95 [8] (1989 FLC 92-011) The court must take into account the relevant provisions of the remainder of Division 7 relating to child maintenance. Section 66J provides for the matters to be taken into account in considering financial support necessary for maintenance of the child, which includes “the proper needs of the child, and the income, earning capacity, property and financial resources of the child”. Section 66J(3) provides: 3) In taking into account the income, earning capacity, property and financial resources of the child, the court must: “(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and (b) disregard: (i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and (ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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