D and T
[2002] FMCAfam 264
•23 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & T | [2002] FMCAfam 264 |
| FAMILY LAW – Child maintenance – child over 18 years – relevance of child’s relationship with father – what is “necessary” – whether child able to contribute – how much child’s parents should be required to contribute. Mercer & Mercer (1976) FLC 90-033 |
| Applicant: | M D |
| Respondent: | G J T |
| File No: | HBM3230/2001 |
| Delivered on: | 23 August 2002 |
| Delivered at: | Launceston |
| Hearing Date: | 9 August 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowman |
| Solicitors for the Applicant: | Hobart Community Legal Service Inc. 166 Macquarie Street HOBART TAS 7000 |
| Counsel for the Respondent: | Ms A.L. Valentine |
| Solicitors for the Respondent: | Ware & Partners DX 145 HOBART TAS 7000 |
ORDERS
That G J T pay to M D the sum of $200.00 per week for the maintenance of A J T born 12th July 1983, such maintenance to commence on 17th February 2002 and end on 29th November 2002.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM3230 of 2001
| M D |
Applicant
And
| G J T |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant is M D (“the Mother”) and the Respondent is G J T (“the Father”). They were married, but they are now divorced.
An adult child of the parties, A J T was born on 12th July 1983 (“A”) and he is currently attending a local TAFE College on a full-time basis, being from 9.00 a.m. until 4.00 p.m. on Monday to Thursday and from 9.00 a.m. until 12 midday on Fridays.
The Mother has made an Application for Maintenance for A at the rate of $803.00 per month. That Application initially sought maintenance to date from the date of the Application. However, at the start of the hearing, the Mother’s counsel sought to amend the Application for Maintenance to commence from the start of A’s TAFE course, being 17th February 2002. I am satisfied that such an amendment is appropriate, because the Father was given notice late last year that the Mother wished to make an Application for Maintenance, notwithstanding that A had attained the age of eighteen years.
The Father’s Response to the Application for Maintenance was simply to seek an order that he pay $250.00, being A’s TAFE College fees for 2002.
The Law
Section 66L of the Family Law Act 1975 provides that a Court must not make a Child Maintenance Order in relation to a child who is eighteen years or more unless the Court is satisfied that the provision of the maintenance is necessary to enable the child to complete his or her education or because of a mental or physical disability of the child.
In this case, the Mother is clearly relying upon the need for maintenance for A to enable him to complete his course of education at TAFE.
If the Court is satisfied that the provision of maintenance is necessary for A to complete his education, it is still necessary for the Court to have regard the other sections in the Family Law Act relating to child maintenance. Those sections include sections 66B, 66C, 66J and 66K.
Discussion
In this particular matter, the Father sought initially to introduce evidence concerning the state of his relationship with A as a factor to be considered by the Court, presumably to reduce or eliminate the need for him to pay maintenance. I raised that issue at the start of the hearing and pointed out that I felt that the evidence being put forward by the Father was not relevant evidence that would influence me against making a Maintenance Order. The matter was adjourned for a relatively short period and before the adjournment counsel for the Father drew my attention to a number of cases which she said supported the Father’s view that A’s filial conduct and attitude could be taken into account. Those cases were Mercer & Mercer (1976) FLC 90-033, Oliver & Oliver (1977) FLC 90-227, Gamble & Gamble (1978) FLC 90-452 and H & H (1981) FLC 91-083.
I am grateful to counsel for bringing those cases to my attention. However, I am still of the view that the deterioration in the relationship between father and son as set out in the affidavit material was not of such a nature as to deprive A of his right to maintenance if the Court considered it “necessary” pursuant to the sections of the Family Law Act that have been mentioned above. The father and his counsel accepted that position and did not pursue that aspect of the matter.
It is clear that A is still completing his education. Although the Father appeared to take issue in his affidavit with A’s need to do the course, it became apparent during cross-examination that the Father now accepts that A has improved his commitment to succeed and that the computer course that he is doing at TAFE is an appropriate one. In fact, when cross-examined the Father conceded that the course is suitable and that it is desirable for A to do the course. In this regard, I should comment that the Father is employed in the computer industry.
The meaning of “necessary” in section 66L has been considered in a number of cases. It does not mean “absolutely essential” but it means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parent's financial circumstances and other relevant factors. (See Tuck and Tuck (1981) FLC 91-021.)
Section 66J of the Act requires me to take into account A’s proper needs and his income, earning capacity, property and financial resources.
In this regard, there was no serious challenge to the expenses of A as set out in an annexure to the Mother’s affidavit. Those weekly expenses come to a total of $272.00 and I have no hesitation in accepting that $272.00 per week is a reasonable sum that is necessary to enable A to complete his education.
I was provided with details of A’s taxable income for 2002. That is made up of a youth allowance and the profit that he made on some share sales.
His youth allowance is clearly an “income tested … allowance” that is excluded from consideration by virtue of section 66J(3)(b)(ii) of the Act. See Smith v Wickstein (1996) FLC 92-714.
The money that A made from shares is a different consideration. When he was cross-examined, A’s evidence was that his shares cost him approximately $1,000.00 a few years ago. He sold those recently for little under $2,000.00 after broker’s fees were deducted. He used that money primarily for a holiday. It seems to me that it would have been appropriate for A to have applied at least $1,000.00 of that towards his own education. If that sum of $1,000.00 had been applied from mid February to late November, being the duration of A’s course, that would have contributed approximately $27.00 per week. In other words, that would have reduced his weekly needs to $245.00 per week.
A states that he has been conscious of the need to earn what income he can while he is studying. He says that he would need to work at weekends or during the evening and that he has made applications for work to ten potential employers without success. I therefore accept that A does not have any greater capacity to contribute towards his own necessary expenses than the $1,000.00 that I have already referred to.
Section 66K sets out the matters to be taken into account in determining what contributions (if any) should be made by the Mother and the Father towards A’s maintenance.
The Mother has an income of $375.00 per week gross from her employment as a teacher’s aide and I have no evidence that her earning capacity is any greater than that. She also receives $75.00 per week by way of spouse maintenance, making a total of $450.00 per week.
I am also required to look at the Mother’s property and financial resources. In this regard, much of the evidence centred upon the Mother’s, and her children’s interests in a testamentary trust established by the Will of her late mother (“the Trust). In my view, the Trust has little bearing on the outcome of this matter. This is because the evidence is that the Mother’s late mother left a one half share in her estate in trust for the Mother and the three children of herself and the Father. The child A is one of those beneficiaries of the Trust, which is a discretionary trust and the trustees are the Mother and her brother. While the Trust gives the trustees reasonably wide discretionary powers, I accept the Mother’s evidence that it would be inappropriate to apply the trust funds for the benefit of only one beneficiary.
In any event, it seems to me that the available trust funds are somewhat limited. There is approximately $5,800.00 in an investment account and a further $5,000.00 that was lent to A’s brother, who is also a beneficiary. He is due to repay that loan.
The Trust also has an interest of approximately 70% in the value of the of the home in which the Mother and A are currently living. Consequently, the Trust, which is a financial resource of both the Mother and A, is already contributing to A’s maintenance by providing a roof over his head that does not require rent or mortgage payments.
The Mother also has some Telstra shares that had a value of $3,338.00 at the time of the hearing. It seemed to me that the Father’s counsel was arguing that she should sell those shares to contribute towards A’s maintenance. Given the Mother’s relatively low income, I do not believe that it is appropriate for her to dispose of those shares that could be saved for a more rainy day.
I am therefore of the view that the Mother does not have a capacity to contribute more than her income of $450.00 per week towards her expenses and those of A. In this regard, there was no serious challenge to her expenses of $368.00, so it would appear that she has a balance of $82.00 that she can contribute towards A’s need for $245.00.
The Father’s taxable income for the year ended 30 June 2001 was $75,481.00. In addition to that he received fringe benefits worth $5,618.00. Consequently, he has a remuneration package that is worth more than $80,000.00 per annum gross. That income is significantly better than the $1,093.00 per week ($56,836.00 per annum) that he put in his Form 12B Response.
The Father says that the additional income that he earned relates to overtime that he cannot predict. However, I am satisfied that it is sufficiently consistent for me to accept that his income is in the vicinity of $80,000.00 with his fringe benefits. That is $1,538.00 per week.
In addition, his new wife has an income of $311.00 per week. Further, she receives child support for her two children of approximately $1,200.00 per month that is not disclosed in his Response.
The Father says that he has expenses that total $1,604.00 per week. However, I do not accept some of those expenses or that he is liable for them all, so I set out below the changes that I intend to make for the purposes of calculating his real ability to contribute to A’s maintenance:
a)The mortgage payment of $300.00 per week clearly relates to the provision of a home for himself, his new wife and her children. His wife can contribute to that so it is appropriate to reduce that by $150.00.
b)The council rates shown in his Response are significantly inflated and he conceded that they were $31.00 per week and not $126.00 per week as shown. That is a reduction of $95.00 per week.
c)It is clear that the Father has attributed to himself only all the telephone expenses of his household. In my view, he should only be liable for one third so I shall reduce that by $14.00.
d)School lunches are clearly not an expense for the Father to pay as his own expense. That must relate to his teenage stepchildren and he does not have a legal liability to support them. I shall therefore reduce that by $34.00.
e)The tax payable on the Father’s taxable income of $75,481.00 was $22,856.00. That is $440.00 per week, but the Father is claiming $485.00. Clearly that item needs to be reduced by $45.00.
f)The Father claims $25.00 per week for holidays. That is an item that must come after his obligation to properly maintain his child. The whole of that $25.00 is therefore to be ignored.
g)The Father claims pharmaceutical costs of $33.00 per week as his own expenditure but none for his new wife or stepchildren. In my view, that should be reduced by $22.00.
h)The father shows legal costs of $57.00 per week but in cross-examination he stated that was what he spent last year. Clearly, that sum is inappropriate and should not be included.
i)A contribution to World Vision of $33.00 per week is laudable, but his obligation to support his son comes before that donation. The whole of that sum must be ignored.
j)The Father claims a contribution of $200.00 as his share of housekeeping expenses. Clearly, that is excessive and it is my view that it should be halved.
The total of the adjustments referred to above means that the Father’s expenses of $1,604.00 should be reduced by $575.00 making his total reasonable expenses $1,029.00 per week.
That means that he has a notional disposable income after meeting all his own expenses of $509.00 per week to contribute towards A’s maintenance.
The result of what is set out above is that the Mother has $82.00 available to contribute towards A’s expenses of $245.00 and the Father has $509.00. This means that the Mother has approximately 14% of the combined notional total of $591.00 and the Father has approximately 86%. Justice would appear to suggest that they ought to contribute in those proportions to the sum of $245.00 that is required for A’s maintenance.
That means that the Father should pay approximately $210.00 per week. However, the Mother is only seeking $200.00 per week so it is appropriate to order that the Father pay that amount by way of maintenance for A for the whole of the period that he is to attend TAFE this year.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 23rd August 2002
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