English and English - [2007] FMCAfam 1112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ENGLISH & ENGLISH

[2007] FMCAfam 1112

FAMILY LAW – Adult Child Maintenance – whether order should be discharged.

Family Law Act 1975, ss.66A, 66H, 66J, 66J(3)(b)(ii), 66S(2)
Child Support (Assessment) Act 1989

Re AM, Unreported decision 10 April 2006, Carmody J

Applicant:

VINCE CHARLES ENGLISH

Respondent:

PAULA MARY ENGLISH

File number:

DGC 3888 of 2007

Judgment of:

McInnis FM

Hearing date:

4 December 2007

Delivered at:

Melbourne

Delivered on:

21 December 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms C Devine

Solicitor for the Respondent:

Jane Baldwin

ORDERS

The Application filed 21 September 2007 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 3888 of 2007

VINCE CHARLES ENGLISH

Applicant

And

PAULA MARY ENGLISH

Respondent

REASONS FOR JUDGMENT

The Applicant seeks to discharge an order that he pay maintenance for an adult child, Lloyd Oscar English, born April 1981 ("the adult child").
At the commencement of the proceedings the Applicant husband, who is self‑represented, asked to be assisted by his current wife, Ms Kasey English. It is clear from the affidavit material that the Applicant married Kasey English in September 2003, having commenced a relationship with her in 1997. There is one child of that marriage, namely Chelsea Biance English, born June 2000 (‘Chelsea’).
There is no dispute that the Applicant and Kasey English separated on 6 July 2007. Notwithstanding the current separation, Ms Kasey English attended court and was willing to assist the Applicant in this application to discharge the adult child maintenance order.
In the absence of any objection, I permitted Kasey English to act as a McKenzie friend. Toward the end of the proceedings, after the Applicant gave evidence, he then sought to call Ms Kasey English, though indicated it was to give evidence to corroborate his evidence concerning a desire to spend time with the adult child. In the circumstances, I decided not to permit that evidence as I did not regard the Applicant's expression of wishing to spend time with the adult child as a matter in dispute.
It was a concern to the court that Ms Kasey English may otherwise have been able to corroborate other matters, and it was indicated during the course of the evidence of the Applicant that she had in fact assisted him in the completion of his financial statement, which he relied upon in the court.
Nevertheless, as the Applicant did not seek to produce corroborative evidence or indeed other evidence from Ms Kasey English and only sought to call her for the purpose of corroborating his evidence concerning his express desire to spend time with the adult child, I decided that there was little probative value in that evidence and significant prejudice to the Respondent, given that Ms Kasey English had been present throughout the hearing acting as a McKenzie friend and had not sworn any affidavit material prior to the trial of the action.
Accordingly, I refused permission for Ms Kasey English to give evidence but otherwise permitted her to remain in court and act as a McKenzie friend.
The application by the Applicant seeks to discharge the adult child maintenance order made by the Federal Magistrates Court on 9 May 2001. There was no suggestion made by the Applicant that the amount of maintenance payable pursuant to that order should be suspended and/or decreased pursuant to s.66S(2) of the Family Law Act 1975 ("the Act"). However, in the course of my judgment, it seems to me to be appropriate that the court itself may consider, on application to discharge an order, the alternatives provided in s.66S(2), which relevantly provides:
“(2)   In any other case, the court may, by order:
(a)discharge the first order if there is just cause for doing so; or
(b))suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c)if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or
(d)     subject to subsection (3), vary the order:
(i)      so as to increase or decrease any amount ordered to be paid by the order; or
(ii)     in any other way.”
It is clear from that section that the court's primary task is to determine whether there is in fact "just cause" for the discharge or indeed suspension or variation of the child maintenance order.
It is common ground that the order made on 9 May 2001 required the Applicant to pay adult child maintenance for the adult child at the rate of $65.00 per week, adjusted for increases in the Consumer Price Index, and the current amount payable is $82.23 per week. Neither party produced a copy of the earlier order.
It is not in dispute that the Applicant has been assessed by the Child Support Agency (CSA) to pay $112.00 per week in child support for Chelsea. Likewise, it is not disputed that in making that assessment the CSA did not take into account the amount of adult child maintenance which the Applicant pays for the adult child.
It has been argued, and I accept, that if the adult child maintenance had been taken into account, upon application to the court for a departure order from the CSA assessment, then the amount payable for maintenance for the child Chelsea would be assessed at $86.60 rather than $112.00 per week. I accept the calculation made by Counsel for the Respondent in relation to this issue, which appears to be consistent with the provisions of the Child Support (Assessment) Act 1989.
I shall deal with the issue further in this judgment when considering the evidence as to why an application has not been made to the court to seek departure from the current assessment of $112.00 maintenance payable per week for Chelsea.
The agreed chronology in this matter appears from the material:
May 1945, date of birth of Respondent wife
April 1952, date of birth of Applicant husband
22 April 1977, date of marriage of Applicant husband to Respondent wife
1979, date of birth of first child of marriage, Charlotte Mary English
April 1981, date of birth of Lloyd Oscar English (the adult child)
November 1982, date of birth of third child of the marriage, Laura Nyree English
11 May 1997, date of separation of the Applicant husband and Respondent wife
1997, Applicant husband commences relationship with Kasey English
June 2000, date of birth of Chelsea Bianca English, the only child of the relationship between the Applicant husband and Kasey English
27 February 2001, Applicant husband and Respondent wife divorced
9 May 2001, orders made in Federal Magistrates Court at Dandenong, including adult child maintenance order for the adult child at the rate of $65 per week, to be adjusted for increases in the Consumer Price Index
September 2003, Applicant husband marries Kasey English
2003, adult child diagnosed with schizophrenia and obsessive compulsive disorder
2005, adult child required to leave employment in sheltered workshop due to his violence towards other participants in the program
6 July 2007, Applicant husband separates from Kasey English
21 September 2007, Applicant husband files application in Federal Magistrates Court seeking to discharge the order for adult child maintenance for the adult child

The Evidence

The Applicant Husband relied upon affidavits sworn by him on 21 September 2007 and 19 November 2007 together with an Amended Financial Statement sworn 19 October 2007. No issue has been taken in relation to the documents; and I note in passing that the affidavit purportedly sworn on 19 November 2007 appears to be deficient, in the sense that the particulars of jurat are incomplete. The Applicant Husband gave oral evidence where he adopted the affidavits and the Amended Financial Statement as being true and correct.
The Respondent Wife filed a Response to the Initiating Application on 25 October 2007. I take the Response to include an order that the Applicant Husband's application be dismissed rather than "discharged" which appears in that Response and that otherwise the adult child maintenance order remain and continue with full force and effect. The Respondent relied upon affidavits sworn by her on 24 October 2007 and 29 November 2007 together with a financial statement sworn 24 October 2007. The Respondent Wife gave evidence and adopted the affidavits and financial statement.

Evidence not disputed

During the course of the hearing it became apparent there is a significant amount of evidence which is not disputed or challenged by the parties.
The chronology set out earlier in this judgment does reveal a lack of precision in relation to certain dates; for example, a precise date when the Applicant Husband commenced his relationship with Kasey English, the date of the divorce, the date of birth of the first child of the marriage between the parties, the date when the adult child was diagnosed with schizophrenia and obsessive compulsive disorder, the date of marriage between the Applicant Husband and Kasey English and the date when the adult child ceased employment in the sheltered workshop.
I am satisfied, despite the inadequacy of the material before the court, that the vague nature of the evidence in relation to those dates is not material. It is important, however, that I make findings of fact in relation to other matters which do not appear to be in issue between the parties. Those matters include:
·the medical condition of the adult child
·the living arrangements of the parties
·the Centrelink benefits paid to the Respondent and the adult child

The medical condition of the adult child

I find that the adult child has had an intellectual disability for many years. Whilst the parties appear to indicate that the adult child was diagnosed with schizophrenia and obsessive compulsive disorder in addition to his intellectual disability in 2003, it seems to me, on the material, that the diagnosis occurred in or about 2004. That would appear to follow from the medical report provided by Alice Priestley, a Senior Clinician/Case Manager of the Murnong Community Mental Health Clinic, who, in a report dated 3 October 2007, relevantly states as follows:
“This is to confirm that Lloyd English, born April 1981 has 3 year history of schizophrenia and Obsessive Compulsive Disorder (in addition to intellectual disability). He has been a client of Murnong Community Mental Health Clinic and received case management services since June 2004 following his admission to M Psychiatric Unit (5/6/04‑15/6/04). This admission occurred after a period of increasingly aggressive and threatening behaviour towards his family in the context of psychotic symptoms. Lloyd's third & most recent admission occurred from 25/5/06‑5/6/06 where he was brought into the Emergency Department after threatening his mother with a knife. It is noted that Lloyd is also prone to impulsive behaviour that can place himself at risk when unwell (eg walking in front of traffic) & he has a history of one suicide attempt by overdose of prescription drugs.
Lloyd's illness is considered to be a life long condition that will require ongoing treatment. In addition Lloyd has a history of non compliance with his medication & will therefore require ongoing monitoring and linkage to psychosocial supports to help manage his illness.”
In the absence of any evidence to the contrary, I accept the medical conclusions set out in the extract from the report from Alice Priestley as being an accurate assessment of the state of health of the adult child.
I note further the medical opinion of Dr Harbans Gupta (Exhibit PME2 to the affidavit of the Respondent Wife sworn 24 October 2007) where the doctor relevantly states in a report dated 17 October 2007 the following in relation to the adult child:
“In my opinion, he suffers from SCHIZOPHRENIA, OBSESSIVE COMPULSIVE DISORDER. He requires constant care and also for medications to be given. He is looked after by his mother, who is sole carer for Lloyd, as he has intellectual disability which is life long.”
Again, I accept the conclusion in that medical report as being an accurate assessment of the medical condition of the adult child. On the evidence before me, I also accept, as deposed to by the Respondent in her affidavit sworn 24 October 2007, that the adult child cannot read or write with any degree of proficiency, is not independent and is not employable. His circumstances do not appear, on the material before me, to be likely to change in the foreseeable future.
I therefore find that the medical condition of the adult child is a condition which will be long‑term and unlikely to change. In particular, I conclude that, having regard to the medical condition, the adult child is unlikely to be able to earn income in employment or be self‑sufficient.
I also accept that the Respondent Wife is the primary carer of the adult child. I find the Respondent Wife, aged 62 years, is an insulin‑dependent diabetic who suffers other medical conditions, including arthritis and lymphedema and is on medication for high blood pressure. I accept that the Respondent receives $265.00 per week Disability Support Pension for herself and $49.00 per week Carer Allowance.
It does not appear to be disputed that the adult child receives a payment of $265.00 per week as a Disability Support Pension pursuant to s.66J(3)(b)(ii) of the Act. I accept that I should disregard that payment to the adult child for the purpose of these proceedings. Hence, the fact that the adult child at the time the orders were made was receiving a partial Disability Support Pension and is now receiving a full Disability Support Pension, in my view, is not relevant to the present proceedings.

The living arrangements of the parties

The Applicant has given evidence that since separating from Kasey English on 6 July 2007 he has resided in a rental property in L. I find that the property is a three‑bedroom ‘run-down’ property as stated by the Applicant in his evidence.
However, I further find that the property has at least two of three bedrooms which are habitable, and that the current rent payable on that property is $165.00 per week. That amount of rent is currently paid by Ms Kasey English. The Applicant lives alone at the rental premises in L.
Prior to separation from Ms Kasey English, the Applicant had resided with her at a property in SL. The Applicant is the registered proprietor of the SL property, though Ms Kasey English is the caveator of a caveat lodged over that property on 14 November 2006. The SL property is subject to a mortgage to the Australia and New Zealand Banking Group Ltd ("ANZ Bank").
Ms Kasey English resides at the SL property with the child Chelsea and also at the property, though living in a caravan, is Ms English's mother. At the SL property there are in fact two caravans, the first occupied by Ms Kasey English's mother, which presumably belongs to either Ms English or her mother. The second caravan, according to the evidence of the Applicant, was purchased by him in or about 2006 for a total amount of $3,000.00.
The second caravan, it was claimed, was purchased by the Applicant to provide accommodation for the adult child if and when the adult child stayed with the Applicant. It is noted the caravan remains, however, at the SL property and is not with the Applicant at the A address. The caravan was purchased through funds raised by way of refinancing through the ANZ Bank, the amount secured by the mortgage over the SL property. I shall consider the evidence in relation to the financial circumstances of the parties later in this judgment.
The Respondent resides at a property at K. That property is owned by the Respondent, though subject to a mortgage which the Respondent pays of approximately $150.00 per week. The Respondent and the adult child live at the property. The other children of the marriage between the Respondent and the Applicant are now adults, Charlotte is a full‑time teacher, aged 28 years, whilst Laura is aged 24 years, married and living in the United States of America.

Centrelink benefits of the Respondent and adult child

The Respondent receives a Centrelink Disability Support Pension of approximately $265.00 per week plus a Centrelink Carer’s Allowance of $49.00 per week. The adult child also receives a pension of $265.00 per week. If working he is eligible to receive a disability allowance of $49.00 per week.

Other evidence

Other evidence was given by the parties concerning their respective financial circumstances. The main thrust of the Applicant's case is that his circumstances have changed significantly since the date of the child maintenance order in May 2001. Specifically he claimed that, as he is now separated from Kasey English, he has continued to make the mortgage payments on the SL property of $296.75 per week plus rates of $18.53.
In addition, the Applicant has paid the sum of $112.00, being the child maintenance payable for the child Chelsea assessed by the Child Support Agency. According to his Amended Financial Statement, the Applicant has also continued to pay superannuation in the sum of $30.00 per week.
The Applicant includes an amount of $1,729.65 being an amount held in an ANZ Bank account in his Amended Financial Statement. During the course of submissions, he sought to submit that that is no longer an amount which he retains. However, having adopted the financial statement and given that it was filed on 19 November 2007, I am not prepared to accept submissions from the bar table in relation to any variation of that amount asserted at the end of the trial. I therefore accept the amounts being paid as they appear in the Amended Financial Statement filed by the Applicant on 19 November 2007.
During the course of his evidence, the Applicant also gave evidence of refinancing, which, as I understand his evidence, was arranged with the ANZ Bank using the mortgage as security. Three exhibits were tendered by the Respondent from subpoenaed material produced to the court by the ANZ Bank.
The first exhibit appeared to be an ANZ Bank interim statement of an account in the name of the Applicant, described as a "home loan", secured over the SL property with a balance as at 22 October 2007 of $25,844.84 (Exhibit R1). The last fortnightly payment in relation to that loan appears to be in the sum of $145.81. It is noted that for the period 27 May 2006 to 22 October 2007 there was a total amount of $995.17 "withdrawals" and $1,587.27 "deposits".
The second exhibit from the ANZ Bank was an interim statement of account for a home loan, again secured over the SL property, which showed as at 11 October 2007 a balance of $76,488.60. This loan was in the name of the Applicant and Kasey English (Exhibit R2). The statement showed a total of ‘withdrawals’ of $2,632.66 and "deposits" of $3,230.06 for the period 25 November 2006 to 11 October 2007; the last deposit appears to be the sum of $327.95. As I understand it, this loan was the original loan amount obtained to purchase the SL property.
The third loan is described as a "supplementary loan" (Exhibit R3). This loan is referred to as a "car loan". As I understood it, this loan was to enable the Applicant to purchase a vehicle for Ms Kasey English, and I note that the loan is in both the Applicant's name and the name of Ms Kasey English. As at 17 July 2007 the supplementary loan had a balance of $14,132.09.
According to the evidence of the Applicant, the purchase price of the SL property was $110,000 and he borrowed a total amount of $100,000. Although his evidence was somewhat confused, it would appear that he had increased his borrowings by an amount of approximately $5,000 in or about 2003 to repair his 25‑year‑old Toyota vehicle; and, as indicated earlier, had otherwise used money to purchase a vehicle for Ms Kasey English. That vehicle is described as a ‘Mitsubishi Verada’.

Other money was spent on airconditioning in the SL property in 2002 in the sum of approximately $3,000.00; central heating, also in 2002 at a cost of between $6,000.00 to $7,000.00. As indicated earlier, a caravan was purchased at the end of 2006, which remains at the SL property and which was purchased for an amount of $3,000.00.
It should be noted that, although some evidence was given by the Applicant in support of his Amended Financial Statement and affidavit material, criticism was made of the non‑disclosure of matters which might have assisted the court's deliberation, including financial records arising out of his employment.
The Respondent gave evidence adopting her affidavits and financial statement. Her financial details include the Disability Support Pension referred to earlier in this judgment. Questions were raised as to her expenditure, not simply on herself but also in relation to the adult child. It perhaps could be noted that some suggestion was made that, whilst $60.00 per week was spent on the adult child, an attack could be made against the Applicant, who revealed expenditure of $80.00 per week on himself. This arose during the course of the Respondent's evidence.
I should add that when dealing with the financial circumstances of both parties some attempt was made to analyse the expenditure of both.
Having considered all the evidence, however, I am not satisfied that either has revealed excessive expenditure in the financial statements and accordingly accept those financial statements, which in the case of the Respondent revealed a total average weekly income of $396.00, with expenditure of $762.00 and note the value of the property owned by the Respondent is estimated to be $288,030, with a total liabilities of $37,500. Her weekly expenditure totalled $555.00 of which $237.00 is attributable to the adult child. I note in passing the pension amounts referred to earlier in this judgment were included simply in the context of expenditure and for no other reason.
In the Applicant's Amended Financial Statement, it is noted, his total average weekly expenses amount to $407.50. He asserted in evidence, however, that he was struggling to afford fuel for his car to travel to and from work and was not able to purchase food, and indeed referred to purchasing and living on "noodles" during most of the week.
I accept that the expenditure revealed in the Respondent's Financial Statement for the adult child is not unreasonable and in part represents costs which could properly be regarded as necessary for the maintenance of the child for the purposes of ss.66A and 66J of the Act.
The needs of this child are quite unique, having regard to his medical condition, and, without reciting the details set out in the affidavits of the Respondent, I am satisfied that the expenditure incurred and the activities undertaken by the adult child are appropriate and the costs not in any way excessive but rather costs which I find are necessary for the maintenance of this adult child. They include cable television and Internet costs, which on the affidavit material before me seem entirely appropriate and necessary for this particular adult child, having regard to his medical condition.

Reasoning

During the course of submissions reference was made to relevant legislation, including the approach the court should take in proceedings for a child maintenance order set out in ss.66H and 66J of the Act. I note further that, as indicated earlier, in an application of this kind where the Applicant seeks to discharge the adult child maintenance order, the court needs to be satisfied that there is in fact, pursuant to s.66S(2) of the Act "just cause" for discharging the order or suspending or varying the order.
I have noted further the matters the court may consider when deciding to vary the order by way of a decrease, which in this instance may well be regarded from the Applicant's point of view as a decrease to zero upon discharge, although in either event, on my reading of the legislation, the court still needs to be satisfied that there is just cause for so doing.
I do not accept the evidence of the Applicant that his financial circumstances have changed significantly since the date the order was made in 2001 but rather note that the Applicant has sought to refinance rather than fulfil his commitment to the adult child maintenance order. He could at any time, in my view, dispose of the caravan which would appear to be unused and currently situated at the SL property.
He could also cease paying the mortgage payments on the property at SL, given that Kasey English is residing there with her mother and only paying in return the rental of $165.00 currently due and payable on the rental property occupied by the Applicant. It should be the other way around, or, at the very least, further discussions could take place regarding a realistic contribution by Kasey English to her current accommodation costs, including rates and mortgage, which are both totally paid at present by the Applicant.
No attempt has been made by the Applicant to readjust his finances even in the manner described, which clearly would provide an ability to pay the current adult child maintenance order.
Further, I am satisfied that, if he chose to do so, the Applicant could have reduced the amount of maintenance payable for the child Chelsea by at least reducing the sum assessed by the Child Support Agency from $112.00 per week to $86.60 per week, thereby providing further funds which the Applicant could draw upon for his own living expenses and/or to meet the obligations to pay adult child maintenance.
Having regard to the financial history, including the refinancing for the purchase of the car for Kasey English and repair of the Applicant's car together with other expenditure for items including airconditioning and heating, the Applicant has demonstrated a capacity to service finance for those purposes, which, in my view, clearly indicates a capacity to continue to make the payment of $82.00 per week for the adult child.
As indicated earlier, I am satisfied that the adult child has significant medical issues combined with his intellectual disability, and I have already made findings about the future prospects of the adult child in relation to being self‑sufficient. I am satisfied that he continues to require maintenance and it is my conclusion that both parents have an obligation to support the adult child. The Respondent does so by providing care and support on a full‑time basis for the adult child and I do not think it is unreasonable for the Applicant to continue to meet his commitments as ordered by the court in 2001.
Other savings which the Applicant could make to add to his claimed income of $923.21 per week would be to forgo temporarily the additional payment of $30.00 per week towards superannuation and he could draw on the funds he currently has in his bank, which, as I have indicated, I find to be the amount set out in his Amended Financial Statement of $1,729.65.
Those matters, combined with the opportunity to sell the caravan, presumably for an amount of approximately $3,000, when combined with the income expenditure and financial arrangements of the Applicant, lead me to conclude that there is no just cause for discharging, suspending or varying the adult child maintenance order.
Indeed it may be argued that there has been a significant change in the circumstances of the child, for the purposes of s.66S(3) of the Act, which may justify an increase in the amount paid, given the diagnosis which occurred in or about 2004 of schizophrenia and obsessive compulsive disorder together with the deterioration of his health to the point where he is unable to continue the limited employment in a sheltered workshop. Nevertheless, no claim is made for an increase in the amount payable.
I should add that during the course of the hearing there was considerable dispute between the parties as to whether or not the adult child wished to see his father. The Respondent claimed that she had been told by the adult child that he did not want to see his father. I was concerned that the Respondent did not appear to seek independent assistance to determine the reason for that view, if indeed it was expressed to her by the adult child, as clearly the Applicant wishes to spend more time with the adult child.
As I indicated during the hearing, this is a matter for the parties to seek to resolve, if possible, by counselling; or for the matter to be otherwise resolved through other proceedings.
However, on the evidence before me I am not satisfied that this case is one where I am able to conclude that the adult child has freely and willingly conducted himself in a manner which would lead the court to conclude that the child maintenance order should be discharged. Having regard to the adult child's medical condition, it is not possible for me to draw that conclusion in this case. Hence, the facts and circumstances of this case are perhaps different to other cases.
In a matter of this kind there is no express age‑based limitation found in the legislation and I accept that there is no need to imply a restriction. The orders which I have set out earlier in this judgment made in 2001 provide a satisfactory safeguard by consent, namely in circumstances of whether the Applicant becomes medically‑unable to work due to ill‑health and provides a certificate to that effect or loses his job as a result of circumstances beyond his control. In any event, the orders as they presently stand will cease upon the Applicant retiring upon or after attaining 65 years of age. The orders made by consent on 9 May 2001 are as follows:-
“BY CONSENT IT IS ORDERED
1.The husband pay to the wife for the maintenance of the child Lloyd Oscar English born April 1981 the amount of $65.00 per week and for the maintenance of Laura Nyree English born November 1982 the amount of $17.00 per week (being a total of $82.00 per week), the first of such payments to be made on the 20^th day of April 2001 and weekly thereafter, such amount is to be varied on 1^st July each year commencing 1^st July 2002 by multiplying the amount payable by the inflation factor (if any) applicable to the immediate preceding child support year as is prescribed by the Child Support (Assessment) Regulations.
2.That the maintenance payable for the child Laura Nyree English cease upon the completion by the said child of her first University Degree.
3.That the child maintenance payable pursuant to paragraph 1 of these Orders be suspended in the event of and for the duration of any of the following:
(a)that the husband becomes medically unable to work due to ill health and provides to the wife a medical certificate to this effect;
(b)that the husband loses his job as a result of circumstances beyond his control; or
(c)that the Husband retires upon or after attaining sixty-five years of age.
IT IS DIRECTED
4.That the Application of the wife filed 18^th March 2001 be otherwise dismissed.
5.That this matter be removed from the Pending Cases List and that the hearing date scheduled on 23^rd April 2001 be vacated.
6.That the Minutes of Consent Orders remain on the Court file.”
I am mindful of the principles to be applied set out in the judgment of Carmody J in Re AM, Unreported decision 10 April 2006 (Re AM). In my view, there is no evidence in the present case of what might be described as a ‘strained nature’ of the relationship between the Applicant and the adult child, though clearly there is room for improvement in that relationship which ought be facilitated by the Respondent, to the extent that she is able to do so.
I also note, arsing from the decision of Carmody J in Re AM, that there are circumstances where the capacity of the liable parent, in this case, the Applicant, needs to be considered first, given that there may be a requirement to adjust the payments as the needs and circumstances of the Applicant alter over time (see paragraph 152 Re AM).
However, as indicated, I am not satisfied that the circumstances of the Applicant in the present case have altered to the extent that I can be satisfied there is just cause for discharging, suspending or varying the adult child maintenance order. I accept that the current financial contributions of each of the parties is appropriate and there is nothing in the material which would cause me to alter the orders made in 2001.
I have no doubt in the present case that the adult child maintenance order remains necessary in the interests of the adult child due to the adult child's mental disability described earlier in this judgment.

Conclusion

It follows therefore that the application filed 21 September 2007 should be dismissed. I shall hear the parties in relation to the question of costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 December 2007