DORSETT & GODARD

[2017] FamCA 51

FAMILY COURT OF AUSTRALIA

DORSETT & GODARD [2017] FamCA 51

FAMILY LAW – CHILD SUPPORT – Where the husband pays the child’s school fees – Where the husband seeks that the wife contribute equally to the costs of the school fees – Where the Administrative Appeals Tribunal made findings based on the husband’s payment of the child’s school fees – Where the husband has not advanced a proper basis for a change in the existing arrangements for the payment of school fees – Application dismissed.

FAMILY LAW – ADULT CHILD MAINTENANCE – Where the wife seeks that the husband pay adult child maintenance – Where the adult child is a student at university – Where the adult child requires financial support to complete her education – Where the husband did not contend that he lacks the financial capacity to provide financial support – Where the Court does not accept that the husband should provide no financial support – Order made that the husband pay adult child maintenance in the amount of $450 per week.

Family Law Act 1975 (Cth) ss 66L, 66F

Cosgrove and Cosgrove (1996) FLC 92-700

APPLICANT: Ms Dorsett

RESPONDENT: Mr Godard

FILE NUMBER: SYC 4107 of 2014

DATE DELIVERED: 8 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Stevenson

HEARING DATE: 25 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: Byrnes Lawyers

COUNSEL FOR THE RESPONDENT: Mr Stubbs

SOLICITOR FOR THE RESPONDENT: Harris Friedman Lawyers

Orders

1. The husband will pay to the wife a sum of $450 per week by way of adult child maintenance for Ms D, born in 1997 until she completes her current university degree or ceases that course.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dorsett & Godard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4107  of 2014

Ms Dorsett

Applicant

And

Mr Godard

Respondent

REASONS FOR JUDGMENT

The proceedings

1. By an Application in a Case filed on 19 December 2016 the wife, Ms Dorsett, sought the following orders:

   1.That within 7 days the Respondent do all acts, sign all documents and pay all monies necessary to re-enrol the child, [B] as a boarder at [C School] for 2017.

   2.That the Respondent is restrained from terminating [B's] enrolment at [C School] pending [B] completing his school there.

   3.That the Respondent pay as and when same falls due, all school fees in relation to [B's] schooling at [C School] including but not limited to tuition fees, excursion fees, incidental sporting costs, the costs of all school books, school uniforms and extracurricular activities for [B].

   4.That until [B] completes his Higher School Certificate the Respondent pay the cost of the mobile phone plan for the mobile phone number ...

   5.That within seven days the Respondent pay the Applicant the sum of $662.44 for text books purchased by the Applicant on [B's] behalf.

   6.That within seven days the Respondent do all acts, sign all documents and pay all monies necessary to re-enrol the child [Ms D] as a resident at [E] University.

   7.That the Respondent is restrained from terminating [Ms D's] enrolment at [E] University pending [Ms D] completing her university degree.

   8.That the Respondent pay as and when such payments fall due all accommodation fees in relation to [Ms D's] accommodation at [E] University.

   9.That the Respondent pay for all of [Ms D's] university textbooks whilst she attends university.

   10.That within seven days the Respondent pay to [F] Accountants the sum of $11,000 in payment of the invoice dated 21 August 2016.

   11.The Respondent pay the Applicant's costs of and incidental to this Application.

   12.This Application be dealt with on an urgent basis.

2. At the interim hearing on 25 January 2017 counsel for the wife submitted a Minute of Further Interim Orders Sought in the following terms:

   1.In the event the court fails to make Orders 6, 7 and 8 sought in the Application in a Case filed 19 December 2016, that pending further order the husband pay to the wife adult child maintenance for [Ms D] born …, 1997 in the sum of $450 per week.

   At the interim hearing, counsel for the wife indicated that she sought a determination of the issues of payment of B's school fees and adult child maintenance for Ms D.

3. The husband, Mr Godard, opposed the orders sought by the wife.  On his behalf, it was submitted that there should be no order for adult child maintenance and that the wife should pay half of the private school fees of B.

Background

1. The husband and the wife, who are both aged 49, began to live together in 1991 and married in 1994.  They separated under one roof in July 2013 and ceased to occupy the same premises in April 2014.

2. The parties have four children:

   ·Ms G born in 1993 (23)

   ·Mr H born in 1994 (22)

   ·Ms D born in 1997 (19)

   ·B born in 2000 (16).

3. Ms G and Mr H live independently of the parties.  Ms D is a student at E University and lived at residential College in 2016.  B attends C School.

4. Initially the husband proposed that B leave C School and be enrolled at a school in I Town.  Ultimately he agreed that B should remain at C School and the issue was whether the fees should be shared equally between the parties or paid solely by the husband.

5. The husband is a professional.  He maintains offices in I Town and Sydney.  The wife is a qualified professional but does not practice in her field.  She is a consultant for a company in I Town.

6. Ms D commenced a degree at E University in 2016 and took up residence at College at the beginning of that year.  The husband paid the college fees for 2016, which amounted to $685 per week.

7. In his affidavit of 13 May 2016 the husband deposed:

   98.[Ms D] is now living at [… College].  I am paying her fees which are $685 per week.  This includes all meals.  The fees have been paid up to the end of semester 1 which ends in June.  This is a 40% increase on the fees from when [Ms G] started at the college and is now significantly more expensive than living in private accommodation and I have only agreed to pay for one year at college because [Ms G] and [Mr H] were able to have that experience.  I expect [Ms D] to move into private accommodation in 2017 if she decides to continue with her university studies.

8. Ms G and Mr H attended College for three and two years respectively.  The husband deposed that Mr H lived in rented accommodation close to E University in 2016.  The husband paid the bond and the weekly rental of $280 to the end of June 2016 and then gave to Mr H a lump sum of $7,500 to cover the period July to November 2016.

9. On 19 May 2015 the wife applied for a departure from an administrative assessment of child support.  In 2016 the Administrative Appeals Tribunal issued a decision, whereby the annual rate of child support payable by the husband for B was fixed at nil from 19 May 2015.  The tribunal noted that the parties "agree that they expect [B] to continue [at C School] as a boarder until the end of year 12 in 2018."  The tribunal made the following findings:

   53.[Ms Dorsett] also confirmed that the she has not contributed to the boarding fees of approximately $45,000 in 2015 and $22,500 in 2016.  [Mr Godard] said about $8,000 was outstanding for [Ms D] at the date of hearing but that he was responsible for payment.  It follows that he met many of the usual costs of the children during term time, including accommodation and food.  This has also reduced the expenses that [Ms Dorsett] meets for the children during term time.

10. The tribunal made the following further findings:

    55.In 2015, [Mr Godard] paid approximately $45,000 in boarding fees for day-to-day costs of the children during term time and this is more than the costs of the children according to the Table.  In 2016, the boarding fees are more than 85% of the costs for [B] in the Table.  This is greater than [Mr Godard's] allocated share of 70% of the usual costs of the children and of the actual costs of the children (including tuition fees). In that case, taking into account that both parties have a similar duty to support the children, the Tribunal proposes to reduce the annual rate of child support payable by him to $0.

Consideration

B's school fees

1. The husband did not make a submission to the effect that he is no longer able to afford to pay the whole of B's school fees.  Essentially, his case was that B has performed poorly at C School and, if the wife contributes equally to the costs of his attendance "… she will be financially and emotionally invested in [B's] education, and may assist in his performance and behaviour improving."

2. I am of the view that the husband advanced no proper basis for a change in the existing arrangements for payment of B’s school fees.  In May 2016 the Administrative Appeals Tribunal made a child support departure order based, to a large extent, on these arrangements.  Accordingly, I will not accede to the husband's application that each of the parties pay one half of B's school fees.

Adult child maintenance for Ms D

1. Section 66L of the Family Law Act 1975 (Cth) provides as follows:

   66L  Children who are 18 or over

   (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.

   (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.

   (3)A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.

   The wife brought the application for maintenance for Ms D in reliance upon this section, as she is entitled to do pursuant to section 66F.

2. In Cosgrove and Cosgrove (1996) FLC 92-700 Warnick J set out a

   
   

   non-exhaustive list of matters which His Honour considered relevant to the exercise of discretion to make an order for maintenance of an adult child.  His Honour stated as follows (at 83,390 – 83,391):

   …

   I come then to the matters which are likely to bear upon the exercise of discretion in cases such as this;  they, I opine, include the following:

   (i)  whether the "nexus" of dependence between the child and parents had ceased and the application amounts to a "resurrection" of that dependence;

   (ii)  the period between initial cessation of dependence (if any) and the application;

   (iii)  whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself;

   (iv)  other assistance, benefits or education which the child has received;

   (v)  the ability of the child to complete the course in question;

   (vi)  the likelihood of the child completing the course in question;

   (vii)  the financial capacity of the child to maintain himself/herself to the completion of the "education";

   (viii)  the financial circumstances of those persons responsible for support of the child (generally the parents);

   (ix)  the filial relationship between the child and the person from whom maintenance is sought.

   …

3. The wife relied upon an affidavit sworn by Ms D on 23 January 2017.  Regrettably, this affidavit was replete with indications of animosity toward and complaints about the husband.

4. Ms D deposed that she has part-time employment while she is at university.  She earns $20 per hour and works for two afternoons per week.  She worked in a take away restaurant at I Town during the summer university vacation.

5. Ms D's evidence in relation to her anticipated expenses, if she lives in rented accommodation, was confined to the following:

   57.If I do not attend college I will have to find alternate accommodate.  My enquiries to date indicate that a small bedroom in a shared home would cost approximately $300 per week.  In addition, my food would cost approximately $150 per week.  I would also have to travel to and from university and pay for my own electricity.  On top of all of those expenses I would have to pay for university texts, clothing, socializing, etc which I estimate would be at least $150 per week.

6. The husband deposed that the weekly fees at College in 2017 will be $721, which is a 60 percent increase on the amount payable for Ms G when she commenced attendance in 2011.  The husband deposed further that he will be required to pay a lump sum of $14 000 to College in February 2017.

7. It was incumbent upon the wife to establish that payment of maintenance for Ms D is "necessary to enable [her] to complete her education".  I would respectfully agree with the statement of Warnick J in Cosgrove and Cosgrove (above) as follows:

   The word "necessary" does not mean "absolutely essential" but involves a consideration of "reasonableness".

8. I am satisfied that Ms D requires accommodation in Sydney in order to complete her degree.  I am not satisfied that it is "necessary" for her to live at College.  It is clear that continued residence at College is a preference of both Ms D and the wife.  I accept that cheaper alternatives are available for Ms D's accommodation during the remainder of her university course.

9. The husband opposed the making of any order at all for the maintenance of Ms D.  He contended that there was "no proper evidence of [Ms D's] expenses" and no explanation as to why she can undertake no more than eight hours' work per week.  The husband advanced his concern as to Ms D's alleged "attitude of entitlement" as a basis for his opposition to providing her with adult child maintenance.

10. I accept that the evidence of Ms D's projected expenses was scant and imprecise but, in my view, the reality is that she requires financial support in order to complete her degree.  In his affidavit of 24 January 2017 the husband estimated Ms D's expenses at no more than $450 per week.  The husband gave no breakdown of this figure.

11. As noted, I am satisfied that maintenance for Ms D is necessary to enable her to complete her education for the purposes of section 66L(1). As further noted, the husband did not contend that he lacks capacity to make a contribution to Ms D's financial support.

12. I accept the husband's argument that private rental accommodation for Ms D would be a cheaper alternative to ongoing residence at College.  I do not accept that the husband should make no contribution whatsoever to Ms D's financial support.

13. It seems to me that the husband should pay maintenance for Ms D but the state of the evidence makes the fixing of an amount a somewhat arbitrary exercise.  I am inclined to the view that Ms D could reasonably be expected to undertake more than eight hours of paid employment per week.  I will order that the husband pay adult child maintenance for Ms D in the sum of $450 per week.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 February 2017.

Associate: 

Date:  8 February 2017