E and E
[2003] FMCAfam 215
•17 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| E & E | [2003] FMCAfam 215 |
| FAMILY LAW – ADULT CHILD MAINTENANCE – Section 66L – enable the child to complete his/her education – voluntary payments to child resulting in lack of need for maintenance. |
Family Law Act 1975
| Applicant: | ERE |
| Respondent: | ESR |
| File No: | (P)MLM2047/2003 |
| Delivered on: | 17 June 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 27 May 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Spicer |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms M Smallwood |
| Solicitors for the Respondent: |
THE COURT ORDERS THAT:
The application pursuant to s.66L(1)(a) of the Family Law Act 1975 for maintenance for S is dismissed.
The respondent husband pay to the wife for the support of the child A born 1985 the sum of $1100.00 per calendar month liability for such payments to commence retrospectively on the 1 April 2003 and such payments to continue until the completion of her secondary education inclusive of examinations. The first of the weekly payments due are to commence 7 days from the making of this order and the arrears, calculated after deduction of the weekly sum currently being paid by the husband to the wife (in the sum of $580.00 per calendar month) for the support of A are to be paid by the husband to the wife within 21 days of the making of this order.
There be liberty to the parties to apply in relation to the question of costs until 20 June 2003 and thereafter each party pay their own costs.
Otherwise all extant applications are dismissed and the matter removed from the Pending Cases List.
Certify for Counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM2047/2003
| ERE |
Applicant
And
| ESR |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced by the wife filing an application for maintenance on the 1 April 2003. An affidavit sworn by the wife on
1 April 2003 was relied upon by her. The husband filed a response document on the 21 May 2003 and relied upon an affidavit sworn by him on the 20th May 2003. At the commencement Counsel for the wife indicated that the application of the wife was for $2,280.00 per month by way of payment of adult child maintenance for the two children. The basis for that application was that this figure represented the maximum monthly sum payable on the child support scale. That maximum applied to annual incomes of approximately $113,000.00. In my view there is a flaw in this approach, in particular in relation to the child S. Section 66L of the Family Law Act 1975 (the Act) imposes a very different regime of maintenance payments with difference considerations. The husband’s counsel put the husband’s position as being that no order should be made with respect to S and an order in the sum of $1,000.00 per calendar month should be made with respect to A retrospective to the 1st May 2003 and to continue until the conclusion of her secondary school year.
Each of the parties was cross-examined during the course of the proceedings and the parties’ son S born 1983 was called by the wife to give evidence. He was briefly cross-examined by Counsel for the husband. Each of Counsel made thoughtful submissions at the conclusion as to what orders the court should make in the proceedings.
The two children, the subject of the application are S born 1983 and now aged 20 years and A born 1985 and now aged 18 years. Both children reside with their mother and have done so since the parties separated on 16 July 1991. Of relevance to these proceedings is the ending of the child support agreement entered into between the parties in December 1998 which provided for the husband to pay to the wife the sum of $1,000.00 per calendar month for the two children with such sum to be adjusted in accordance with any changes in the consumer price index. That agreement ceased to be operative upon A reaching 18 years on the 12th February 2003. It had previously ceased in operation with respect to the child S and the reduction in the monthly sum earlier provided for in paragraph 4 of the agreement was no longer operative. Currently both A and S receive a youth allowance of $78 each week but I disregard this sum as required pursuant to the Act.
A is currently in Year 12 at Y High School. It was not in issue between the parties that she is a child with respect to whom s.66L(1)(a) of the Act operates and that the court can be so satisfied. The matter for judicial determination was the quantum of adult child maintenance and the commencement date of any order. Although the wife sought in the application that the husband pay maintenance to the wife for the duration of A’s tertiary studies it was conceded by Counsel for the wife that the court could not now make such an order. This is because I am unable to determine whether s.66L will be an operative provision at the completion of A’s secondary studies anticipated to conclude this year. There is no evidence before the court to enable it to reach the requisite satisfaction of relevant matters at this point in time regardless of her intentions with respect to tertiary education in the 2004 year.
The husband, despite the cessation of his contractual obligations to pay child support for A, has continued to acknowledge that the provision of maintenance is necessary to enable her to complete her education in the ongoing payment by him to the wife of $580.00 per calendar month this being the sum he was required to pay pursuant to the earlier agreement. In addition he has paid the cost of A’s orthodontic treatment as conceded by the wife in evidence despite her earlier and erroneous claim that he “assisted” in such payment.
The husband is gainfully employed as Human Resources Manager for L. He resides in a de facto relationship and his partner is employed as a building manager. The have no dependant children. His income receipt is in the sum of $165,000.00 per annum approximately and the income of his partner is $54,600.00 per annum.
The wife is gainfully employed working as a receptionist with QS and she has not re-partnered in a de facto relationship. She provides for the children who continue their residence with her and is assisted in that regard by the payment of adult child maintenance for A as described and by the payment of board to her from the parties’ son S in the sum of $500.00 per month. Her income receipt is $33,000.00 per annum. Whilst she concedes she could earn a greater income by working full-time,
I accept that such work would not promote the family interests and would not enable her to be available for the care of A to the extent which she is, and is willing to be. No criticism should be made of her in this regard.
S attends university 4 days in each week. He is in his second year of a bachelor of arts course at University. I must determine whether the provision of maintenance from his father is necessary to enable him to complete that education. It must be remembered that this legislation is prescriptive and needs to be read accordingly. I find that I am not so satisfied for the following reasons:-
(a)S is in receipt of income from his employment at XL in the sum of $90.00 net each week and would be able to obtain university holiday employment to increase this amount;
(b)S is in receipt of additional income from his involvement as a coach and occasional umpire in the sum of approximately $16 each week averaged out over the year;
(c)S receives in a reliable and ongoing manner, a regular payment of monies from his father in the sum of $580.00 per month out of which he retains $80.00 and pays to his mother $500.00 by way of board. This receipt of funds has continued throughout his tertiary studies to date and the wife accepts in her evidence that the husband is prepared to continue such payment to S and the husband gave evidence of his intention to do so;
(d)The husband has paid on S’s behalf his HECS fees in advance which are in an amount of $3,500.00 per annum and in relation to which S has no future liability consequent upon his father’s generosity and support;
(e)The husband has paid and shall continue to pay the cost of S’s university books and materials;
(f)The husband paid for one half of the cost of S's motor vehicle thereby enabling S to purchase a motor vehicle with easier accessibility to university. In addition the husband has paid the comprehensive insurance on the motor vehicle in the current year (approximately $1,000.00);
(g)The husband meets the RACV payment of $110.00 per annum in respect of S’s car;
(h)Some of S’s extra expenses – not related to his completion of his education at all – are also paid by his father, such as memberships of both the CC and FC; a $240.00 per annum contribution to his mobile phone costs; and annual holidays in each year;
(i)S’s dental and some of his medical costs not recoverable through insurance are paid for by the husband – the husband also paying the health insurance;
(j)S has, on the wife’s evidence, in addition money of his own to spend as he wishes.
(k)In total, the wife accepted that the husband pays to S or on S’s behalf the sum of $15,270.00 per annum or $1,272.00 approximately a month in addition to the provision of annual holidays (at a cost of approximately $4,000 per annum for both children) and other expenses paid for by agreement between S and his father.
There are no monies necessary to be paid by the husband to the wife and/or to S in excess of what the husband currently voluntarily pays which would be categorised as the necessary provision of maintenance to enable S to complete his education. The cost of his education is met by his father. His transportation costs are significantly contributed to by his father. His living expenses are significantly contributed to by his father as they are also by his own receipt of income earnt which it is necessary for this court to take into account. There is no evidence before the court that even were he to live independently of his mother he would need maintenance from his father to enable him to complete his education given my findings of fact in this matter. S is significantly supported by both of his parents and that level of support is far greater than what is necessary to enable him to complete his education. His father could be considerably less generous and this application would still fail. There was no necessity in the bringing of it with regard to S.
As at the time of hearing the husband was paying in the sum of $580.00 per calendar month to the wife for the support of A. His obligation to pay this sum had ceased in the February of this year as A had turned 18 although she remained and remains a secondary student completing her Year 12 studies. The matter for determination is the quantum to be paid by the husband until the cessation of those studies. I am satisfied that the provision of maintenance is necessary to enable A to complete her education and that an order is appropriate.
The husband is willing to consent to an order that he pay the sum of $1,000.00 per calendar month to the wife. The wife seeks a payment of $1140.00 per month.
Pursuant to s.66G of the Act I must make such order as the court thinks proper. It is incumbent upon the court to consider the financial support necessary for A by reference to the matters referred to in s.66J of the Act and the contribution to be made by the husband by reference to those matters set out in s.66K of the Act.
A spends nearly all of her time at her mother’s residence and it is her mother who has the responsibility for her care on a full-time basis. It is her mother who is currently incurring what I find are necessary costs in engaging a tutor to assist A this year. Driving lessons although desirable are not, I find, necessary to enable A to complete her education. Currently her mother provides a large part of her necessary transportation which is of course a cost incurred by the mother and one which should be equitably apportioned between the parents. The expenses associated with the care of A are difficult for this court to determine because:-
a)S and A’s expenses have been included as one; and
b)on the wife’s evidence the figures provided in her Form 17 Financial Statement are all estimates.
For the two children each week those estimates included the following:-
i)$376 for food, household supplies and the other expenses related to both children;
ii)$91 relating to A’s expenses only:
– $7 fares
– $6 lunches
– $50 tutor
– $10 school expenses
– $18 pocket money;
iii)$35 petrol;
iv)$50 entertainment; and
v)$18 gifts.
However, the evidence of the wife was that she was not sure as to her expenditure in the sum claimed of all these amounts. She conceded that amounts as earlier claimed by her could be reduced. The wife included as equal expenses of the children and herself rates, insurances and car lease payments on her motor vehicle and claimed $35 a week on petrol for effectively her transportation of A each week. A returns from school by public transport but is driven by her mother three-quarters of the way to school each morning. The wife is driving herself to the station to then travel onwards to her own place of work by public transport. The wife did not concede that this expenditure was exaggerated but given the type of car driven by the wife and the short distance between school and home leaving only some weekend travel the figure appeared high. The wife conceded she does not incur the $18 claimed for car registration nor that she gives A $40 each week in pocket money. The real figure was $18 each week. In respect of the medical expenses paid by the wife I do not accept them in the sum of $9 each week on the evidence given by her. Her claim, given the relatively good health of her children and coverage provided by the husband, was exaggerated. I do not think deliberately – rather an estimate that proved to be too high. I found overall the wife to be a witness of truth. She has placed her career as secondary to the needs of the children and has provided for them to the best of her ability. Her financial position is not overall as good as that of the husband and the children remain obviously significantly emotionally and financially dependent upon her. That dependency however is shared between the parties in the financial contribution made by each. It is a pity the wife saw the need to litigate with respect to S and a pity the husband did not voluntarily increase his payments as he proposed in the running of this matter in February this year.
The father currently makes the following payments on behalf of A:-
b)$500.00 (being by way of approximation half of $1000.00) for private health insurance cover on an annual basis;
c)$2000.00 (being by way of approximation half of $4,000.00) for holidays taken with A or holidays taken by A in the absence of her father;
d)annual membership of the CC;
e)dental and some medical expenses; and
f)$580 each week maintenance payment.
The husband’s income, assets and financial resources are considerable relative to the wife’s. In particular, his income determines that it is just and equitable that he pay a greater share of the expenses associated with the care of A. In addition, she spends little time with her father which again places the burden of her upkeep on the wife to an extent greater than if she regularly stayed overnight with her father. Her expenses are half of $376 (even allowing for $9 medical each week), together with $91 and some allowance for petrol ($30). Gifts are not a necessary expenditure. This totals $329 a week or $1425.66 each month. Given the wife’s evidence, it can only be an approximation. It is appropriate he pay in the sum of $1100.00 each calendar month and the payment should be back-dated to the date of filing of the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of FM Hartnett
Associate: T.A. Jones
Date: 16 June 2003
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