Ballantyne and Ballantyne

[2015] FCCA 500

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALLANTYNE & BALLANTYNE [2015] FCCA 500

Catchwords:
FAMILY LAW – Application for adult child maintenance – physical and mental disability conceded – whether maintenance necessary – whether amount sought necessary because of disability – whether duration of order should be fixed – whether order should be backdated.

Legislation:

Family Law Act 1975 (Cth) ss.66B, 66C, 66G, 66H, 66J, 66K, 66L

Tuck & Tuck (1981) FLC ¶91-021
Re: AM (Adult Child Maintenance) [2006] FamCA 351
Cosgrove & Cosgrove(No.2) (1996) FLC 92-701
Everett & Everett [2014] FamCA FC 152
Myrtle & Myrtle[2012] FamCA 460
Norbis & Norbis[1986] HCA 17
Janine & Janine & Anor (No.2) [2011] FamCA 843
W & W[2002] FamCA 1143
Lightfoot & Hampson (1996) FLC ¶92-663
Mee & Ferguson (1986) FLC ¶91-716
Vick & Hartcher (1991) FLC ¶92-262
Gyselman & Gyselman [1991] FamCA 93
Henderson and Henderson (1989) FLC92-011

Applicant: MS BALLANTYNE

Respondent: MR BALLANTYNE

File Number: MLC 7347 of 2014

Judgment of: Judge O'Sullivan

Hearing dates: 11 & 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Melbourne

Delivered on: 16 April 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Sweeney

Solicitors for the Applicant: Nicholes Family Lawyers

Counsel for the Respondent: Ms M. Smallwood

Solicitors for the Respondent: Coote Family Lawyers

ORDERS

1. The respondent pay adult child maintenance for X born (omitted) 1994 (“X”) in a quantum of $230.00 per week to be payable to the applicant and payable from 20 August 2014.

2. That such payments continue for a period of 3 years from the date of this order.

3. That any arrears now accrued under this order be paid to the applicant in lump sum within 28 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7347 of 2014

MS BALLANTYNE

Applicant

And

MR BALLANTYNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for adult child maintenance for X born (omitted) 1994 (“X”). X was born with Down Syndrome and a congenital heart defect.

2. X’s mother, Ms Ballantyne (“the applicant”) commenced these proceedings by application filed on 20 August 2014. Mr Ballantyne (“the respondent”) is X’s father and he filed a response on 16 October 2014.

3. X’s level of disability is not in dispute. It is the applicant’s position that X’s proper needs are not being met from reasonable and adequate shares in the income earning capacity, property and financial resources of both of his parents and the respondent should pay her $4,274.00 per month for adult child maintenance. The respondent says the applicant has not established that adult child maintenance is necessary. In the alternative, the respondent’s position is the expenses claimed by the applicant purportedly because of X’s disability are either not necessary, include matters that shouldn’t be taken into account, and/or are inflated and/or excessive.

Background

1. The applicant and respondent were married in (omitted) 1990…