C & L
[2002] FMCAfam 163
•14 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & L | [2002] FMCAfam 163 |
| FAMILY LAW – Child maintenance beyond 18 years of age – completion of education – mental or physical disability – published research in relation to “maintenance of children”. FM v FM (1997) FLC92–738 |
| Applicant: | C A C |
| Respondent: | D G L |
| File No: | HBM98 of 2002 |
| Delivered on: | 14 June 2002 |
| Delivered at: | Launceston |
| Hearing Dates: | 27, 28 and 29 May 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. Murray |
| Solicitors for the Applicant: | Murray & Associates DX 70919 Launceston |
| Counsel for the Respondent: | Mr. Grey |
| Solicitors for the Respondent: | Zeeman Kable & Page DX 70110 Launceston |
ORDERS
That Order No. 1 of the Orders made 10th June 1999 by the Family Court of Australia whereby the Respondent Father D G L was ordered to pay to the Applicant Mother C A C by way of child maintenance the sums of $80.00 per week for each of the two children P J L and D A L both born 26th August 1984 be and is hereby varied by increasing the quantum of such maintenance to $140.00 per week per child.
That the liability of the Respondent Father to pay such maintenance be extended with respect to each of the two said children from the date of their eighteenth birthdays (26th August 2002) for so long as the particular child is undertaking full-time secondary or tertiary education.
That the liability of the Respondent Father to pay child maintenance in accordance with Order No. 1 hereof be effective from the first payment due after the making of these Orders.
That the quantum of maintenance hereby ordered be varied on and from the instalment of maintenance next due after 1st August in each year commencing in 2003 in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for all groups for Hobart by comparison with the Consumer Price Index as it stood on 30th June immediately preceding the date of variation as compared with the same Index on 30th June twelve months prior thereto.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM 98 of 2002
| C A C |
Applicant
And
| D G L |
Respondent
REASONS FOR JUDGMENT
Background and applications
The Applicant, C A C (“the Mother”) and the Respondent, D G L (“the Father”) were previously married to each other. They have four children, A M L born 21 November 1979 (“AM”); A N L born 8 March 1981 (“A”); P J L born 26 August 1984 (“P”) and D A L born 26 August 1984 (“D”). As can be seen from their dates of birth, P and D are twins who will have their eighteenth birthday on 26 August this year.
AM is a residential care worker and she is not dependent upon the parties for her support. However, it appears from her unchallenged affidavit evidence that she receives some financial assistance from her father from time to time.
Although A is now 21 years old, he is not currently employed and I shall deal with his circumstances below in this Judgment. He lives with his father.
P joined the Army in December 2001. However, that Army career was short-lived because he was hospitalised and discharged approximately one week after his enlistment. He lives with the Mother and is now completing Year 12 at school.
D also lives with his mother. He has left school, but he is attending TAFE, enrolled in a Diploma of Arts (Art Craft Design). His enrolment in that course was the subject of much evidence during the hearing and I shall deal with that below.
On 10 June 1999 an Order was made in the Family Court of Australia by consent of the parties that the Father pay to the Mother $80.00 per week by way of child maintenance for each of the children P and D.
On 26 February 2002, the Mother filed an Application in this Court seeking Orders to the following effect:
a)That the maintenance for P and D be increased to $220.00 per week per child;
b)That the liability of the Father to pay maintenance be extended beyond their eighteenth birthdays “until the date each child completes his first post secondary degree or diploma or until such child commences full-time remunerative employment (other than vacation employment) whichever occurs first”;
c)That the increase in maintenance take effect from 1st February 2002;
d)That there be CPI adjustments annually;
e)That the Father pay the Mother’s costs.
At the start of the hearing the Mother’s counsel indicated that, after receiving details of the Father’s financial circumstances, the claim for maintenance for P and D was reduced by the Mother to $140.00 per week each, rather than $220.00 per week each.
On 3 April 2002 the Father filed a Response (using the Family Court Form 12B). In that document the Father sought orders for the following:
a)That the maintenance for P and D be increased to $85.00 per week effective from the next payment date;
b)That upon their attaining eighteen years of age the Father pay maintenance for P and D at the rate of $85.00 per week “provided they are enrolled and making satisfactory progress in full-time post secondary education”;
c)That the Applicant Mother pay maintenance for A at the rate of $85.00 per week effective immediately.
The Father contends that “A” is disabled and he is need of maintenance. I shall deal with that contention below.
The law
The provisions relating to maintenance for children are to be found in Part VII Division 7 of the Family Law Act 1975 (“the Act”). Section 66B(2) provides:
66B(2) Particular objects of this Division include ensuring:
(a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b)that parents share equitably in the support of their children.
Section 66C sets out that parents have the primary duty to maintain their children and the priority of their duty. It reads as follows:
66C(1) The parents of a child have, subject to this Division, the primary duty to maintain the child.
66C(2) Without limiting the generality of subsection (1) , the duty of a parent to maintain a child:
(a)is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b)has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the parent has a duty to maintain; and
(c)is not affected by:
(i)the duty of any other person to maintain the child; or
(ii any entitlement of the child or another person to an income tested pension, allowance or benefit.
It is essentially a two step process for the Court to determine what order should be made for the maintenance of a child. Firstly, the Court must consider what financial support is necessary for the maintenance of the child, and then secondly, determine the financial contributions that should be made by parties to the proceedings towards the maintenance of the child. (See section 66H of the Act.)
In considering what financial support is necessary for the child, the Court must have regard to section 66J of the Act. That reads:
66J(1) In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a)the matters mentioned in section 66B ; and
(b)the proper needs of the child (this is expanded on in subsection (2); and
(c)the income, earning capacity, property and financial resources of the child [this is expanded on in subsection (3)].
66J(2) In taking into account the proper needs of the child the court:
(amust have regard to:
(i)the age of the child; and
(ii)the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii)any special needs of the child; and
(b)may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
66J(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.
66J(4) Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
In determining the financial contributions that should be made by parties towards the maintenance of the child, the Court must have regard to the provisions of section 66K. That reads:
66K(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:
(a)the matters mentioned in sections 66B , 66C and 66D ; and
(bthe income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2); and
(c)the commitments of the party, or each of those parties, that are necessary to enable the party to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(d)the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3) ); and
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
66K(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.
66K(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.
66K(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:
(a)any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and
(b)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
66K(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:
(a)by way of lump sum payment; or
(b)by way of transfer or settlement of property; or
(c)in any other way.
66K(6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Where a maintenance order already exists and the applicant seeks to vary that order, the criteria set out in subsection (3) of section 66S need to be satisfied. That subsection provides:
''The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:
(a)that, since the order was made or last varied:
(i)the circumstances of the child have changed so as to justify the variation;
(ii)the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii)the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or
(iv)in the case of an order that operates in favour of, or is binding on, a legal personal representative – the circumstances of the estate are such as to justify the variation; or
(b)that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing [this is expanded on in subsections (4) and (5)]; or
(c)if the order was made by consent - that the amount ordered to be paid is not proper or adequate [this is expanded on in subsection (6)]; or
(d)that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.''
If any of the criteria above are satisfied, the Court may make such child maintenance order as it thinks proper (see section 66G) subject, of course to the provisions of sections 66J and 66K.
Generally, child maintenance orders cease immediately upon the subject child attaining the age of 18 years – see sections 66L(3) and 66T.
However, there are circumstances in which maintenance orders can be extended beyond the child’s 18th birthday, and those circumstances are set out in subsections (1) and (2) of section 66L. Those subsections provide:
66L(1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a)to enable the child to complete his or her education; or
(b)because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
66L(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:
(a)to enable the child to complete his or her education; or
(b)because of a mental or physical disability of the child.
Evidence and findings
It is clear from subsection (3) of section 68S that the Mother must convince the Court of one of the following:
a)That the circumstances of P and D have changed so as to justify a variation;
b)The circumstances of either the Mother or the Father have changed so as to justify a variation;
c)That the cost of living has changed to such an extent as to justify a variation;
d)That the Consent Order made on 10 June 1999 is not proper or adequate; or
e)That material facts were withheld from the Court or material evidence was false.
It is quite clear that the last two of those threshold factors do not apply in this particular case.
Counsel for the Father sought to convince me that there had not been a sufficient change in the circumstances of the children or the parties as to justify any increase in maintenance. However, I do not agree with that. In this regard, both the parties have had sufficiently significant increases in their incomes that would justify the Court looking at the question of maintenance again. Further, the circumstances of P and D have changed. P is now completing his Tasmanian Certificate of Education and D is undertaking a course at TAFE.
It was generally conceded by the Father that P is in need of maintenance and it appears that he is prepared to continue paying maintenance for P beyond the age of eighteen years, provided that he is enrolled in a satisfactory course of education.
The situation in relation to D was quite different. As mentioned above, he is enrolled in a TAFE course. The evidence is that in order to graduate, students must complete at least thirty four modules, including sixteen core modules and a selection of at least eighteen elective modules.
Last year, D enrolled in a TAFE course in the first semester that could have led to a panel beating apprenticeship. However, he was not fortunate enough to secure such an apprenticeship and he changed to the Diploma of Arts course in the second semester. During that semester he undertook nine modules and he managed to pass six of those. Only one core module (Basic Drawing Skills) was passed by him.
The information provided by the TAFE Institute shows that full-time students are expected to complete the course in two to two and a half years. Although it was not actually stated, I assume that each “module” lasts for one semester. Consequently, if D must do at least thirty four modules, he will need to pass nearly seven modules per semester in order to complete the course in two and a half years.
I note that some of the compulsory modules require less hours than the elective modules. In this regard, all the elective modules require forty eight hours per semester whereas some of the compulsory modules require twenty four, twenty or even fifteen hours per semester.
The total course length is approximately 1,404 hours, so in order to complete the course in two and a half years, a full-time student would need to average 281 hours per semester. D is currently enrolled in modules that total 288 hours for this semester.
It would therefore seem that, as far as the TAFE Institute is concerned, D is a full-time student. Indeed, it appears that the TAFE Institute has issued him with a student card that is endorsed with the words “Full-time”.
Notwithstanding this, he only attends the College on three days per week. That leaves him four days per week to do any home work that is required and possibly obtain a part-time job. However, the clear evidence is that he does not have a part-time job.
In my view, D has a limited capacity to find relatively unskilled part-time employment of the sort that many students in Australia undertake, such as working for prominent multi-national hamburger producers.
Similarly, P is probably able to find such part-time employment. However, in both cases, that could not be significant without interfering with their studies. Currently, neither has such employment. However, I intend to disregard their ability to find such employment because I have no evidence of the availability of such employment, nor do I know how much study and homework is required of them.
In relation to the actual needs of P and D, I am satisfied with the evidence provided by the Mother that she spends $455.00 per week on the two of them. That is a little more than $225.00 per week per child, and although she was fairly rigorously cross-examined in relation to some of those expenses, that cross-examination did not cause me to believe that any of the expenses shown are unreasonable.
Further, pursuant to Section 66J(2)(b) I may have regard to “any relevant findings of published research in relation to the maintenance of children” (underlining added). Although counsel for the Father sought to convince me that the published research is confused, I am satisfied that the published research, particularly the research by Donald Lee of Deakin University in 1989 as adjusted for inflation, simply confirms that the expenditure claimed by the Mother is reasonable.
I am therefore satisfied that the reasonable needs of P and D amount to $225.00 per week each.
They are currently under the age of eighteen years and there is no dispute that maintenance is payable at least until 26 August 2002. Further, as mentioned above, it does not appear to be an issue with the Father that P will continue his education and be in need of maintenance beyond that date.
Much was made of whether the course being undertaken by D is an appropriate course and whether he has an intention to complete that course.
In my view, that is irrelevant because the Father conceded that D wishes to obtain employment in the jewellery industry, preferably in the area of jewellery making.
It is very important to note that the relevant wording in section 68L is “to enable the child to complete his or her education”. The section does not refer to actually obtaining a diploma or completing a recognised course. Instead, it refers to the completion of the education of the child.
It is clear that D is completing education that will fit him for the occupation that he has chosen. Consequently, he should be maintained by his parents while he is undertaking that education.
Before I turn to the ability of the Father and the Mother to provide for the maintenance of P and D, it seems appropriate to look at the situation of A. This is because the Father is seeking maintenance for him.
Section 66L(1) provides that the Court must not make an order for A unless the Court is satisfied that the maintenance is necessary to enable him to complete his education or because “of a mental or physical disability of the child”. It is clear that he is not continuing his education but whether he has a mental disability was an issue between the parties.
I am satisfied that A suffers from a mental disability.
The Father’s evidence is that A has been diagnosed as a schizophrenic. Indeed, that is confirmed in A’s own affidavit. However, the Mother was not prepared to concede that diagnosis.
During cross-examination, the Mother conceded that A has seen a psychiatrist and that he prescribed anti-psychotic drugs to treat A’s psychosis. She conceded that a psychosis is a disturbed way of thinking and that A suffers paranoiac delusions.
The Mother has a Masters Degree in Psychiatric Nursing and when she was questioned about A’s condition, I found her to be evasive in that she appeared to be unwilling to concede A’s disability.
In this regard, I prefer the evidence of the Father and I am satisfied that, although A tried to take part in a scheme to make him fit for work, he is currently not able to work. It is therefore my view that he should be maintained, even though he is over the age of eighteen years.
It seems to me that there are a number of ways in which A’s maintenance can be approached. I can assess his need for maintenance and the ability of his parents to pay maintenance and make an order requiring the Mother to pay the Father her proper share of his maintenance costs. However, that will result in both parties paying funds to the other.
A second method would be for me to reduce the amount payable by the Father to the Mother for P and D, by the amount that I consider appropriate for A. That method also has some flaws, so I consider it more appropriate simply to take into account the fact that the Father is being totally responsible for the maintenance of A pursuant to section 66K(1)(c)(ii) of the Act when assessing the Father’s ability to provide for the maintenance of P and D.
I was referred to the decision of FM v FM (1997) FLC 92-738 in relation to the question of whether maintenance is appropriate for A. That decision is a decision of a Registrar of the Family Court of Australia and I am not bound by that decision. However, I am of the view that this case can be distinguished on its facts because I accept that A is not employable at this time as a direct result of his mental disability.
Notwithstanding this, I consider that my approach of taking into account the Father’s maintenance of A when assessing his liability for maintenance of P and D is the best approach.
The Mother’s pay advice for 3 April 2002 shows a total remuneration of $30,846.50 for the financial year. Her evidence is that from time to time she works in excess of her required hours and her fortnightly pay fluctuates, depending on the type and number of shifts that she does. The total remunerations received by her by 3 April 2002 relates to almost exactly three quarters of the year. It is therefore logical to assume that her total remuneration for the year will be approximately $41,000.00, or $788.00 per week.
The Mother’s weekly commitments for herself are $561.00 per week, so she has $227.00 per week available (excluding maintenance and family allowance) available to her to contribute towards the maintenance of P and D.
The Father’s total remuneration package as shown in his pay advice for the period ending 12 May 2002 is $1,322.00 per week (to the nearest dollar). His own expenditure is $879.00 per week. However, that includes mortgage payments by him at the rate of $160.00 per week, while his current wife is paying a similar amount, making a total of $320.00 per week. His evidence in cross-examination was that the bank only require $124.00 per week in total. The amount attributable to him must therefore be $62.00 per week and not $160.00 per week. Consequently, his claimed personal expenses of $879.00 per week must be reduced by $98.00 per week, resulting in notional total personal expenditure of $781.00 per week. The Father’s current wife has an income of $978.00 per week and she is therefore able to meet all of the expenditure attributable to her in the Father’s household expenditure.
The Father states in his Response that A’s expenditure is $161.00 per week. I accept that all the items claimed are reasonable so the Father’s reasonable weekly expenditure for himself and A is a total of $942.00.
As a consequence, the Father has a notional disposable income of $380.00 available for the maintenance of P and D.
The Father has that notional $380.00 available and the Mother has a notional $227.00 available. Between them, they notionally have $607.00 per week, of which the Mother has a notional 37% and the Father has a notional 63%.
As I have said above, it is my view that $225.00 per week per child is reasonable for their maintenance, it seems to me that the Father should be responsible for approximately 63% of that amount. That is $141.75.
Consequently, the Mother’s application for $140.00 per week per child is entirely appropriate. I shall therefore make orders that the Father pay maintenance at the rate of $140.00 per week per child for A and D, such to be extended beyond their eighteenth birthday if they are undertaking full-time secondary or tertiary education.
I shall make an appropriate order for Consumer Price Index increases.
In my view the increases in maintenance for P and D should date from the next payment of maintenance that is due after the making of the Orders.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 14 June 2002
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