EVERETT & EVERETT
[2014] FamCAFC 152
•26 August 2014
FAMILY COURT OF AUSTRALIA
| EVERETT & EVERETT | [2014] FamCAFC 152 |
| FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the Federal Magistrate made an order for adult child maintenance until the completion of tertiary education – Where the appellant father submits that the Federal Magistrate erred in placing no temporal limitation on the order for adult child maintenance and that the reasons for making the order were inadequate – Where the Federal Magistrate erred in both respects – Where the orders were otherwise unjust and unreasonable – Where the Federal Magistrate found that it was necessary that an order for adult child maintenance included an allowance for the adult child to purchase a motor vehicle and an amount for house cleaning and pool servicing – Where the “necessity” for the provision of a motor vehicle and house cleaning and pool servicing was not established by the Federal Magistrate – Appeal allowed in part – All orders set aside and the matter remitted for re-hearing. FAMILY LAW – APPEAL – CROSS-APPEAL – Where it is submitted that the Federal Magistrate erred in not backdating the order for adult child maintenance – Where the time of the commencement of the order was a matter of discretion – Where the Federal Magistrate’s discretion did not miscarry – Cross-appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant father seeks to adduce further evidence on the appeal – Where some of the evidence sought to be adduced is not controversial, was not available to the applicant father at trial, and is potentially relevant to a matter agitated on the appeal – Where the balance of the evidence is not relevant to the appeal – Application allowed in part. FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Costs certificates granted to the parties for the appeal and re-hearing. Family Law Act 1975 (Cth) ss 66L, 66J, 66B, 66K, s 69ZT, 76 CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Everett |
| RESPONDENT: | Ms Everett |
| FILE NUMBER: | BRC | 2627 | of | 2009 |
| APPEAL NUMBER: | NA | 7 | of | 2013 |
| DATE DELIVERED: | 26 August 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Tree JJ |
| HEARING DATE: | 19 September 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 January 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 45 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Matthews QC |
| SOLICITORS FOR THE APPELLANT: | HopgoodGanim |
| COUNSEL FOR THE RESPONDENT: | Ms Carew QC |
| SOLICITORS FOR THE RESPONDENT: | Nita Stratton-Funk & Associates Solicitors |
Orders
The application in an appeal filed by the appellant on 5 September 2013 for leave to adduce further evidence be granted, but only to the extent of admitting the evidence contained in paragraphs 14-17 inclusive of the affidavit of the appellant filed on 5 September 2013, and otherwise the application be dismissed.
The appeal be allowed.
The cross-appeal be dismissed.
The orders made by Federal Magistrate Demack (as her Honour then was) be set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Demack.
There be no order as to costs including no order as to the costs of the further evidence application reserved on 11 September 2013.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Everett & Everett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 7 of 2013
File Number: BRC 2627 of 2009
| Mr Everett |
Appellant
And
| Ms Everett |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 January 2013, Federal Magistrate Demack (as her Honour then was) ordered that the Mr Everett (“the father”) pay adult child maintenance for the parties’ child, K born in 1994, in the sum of $620 per week, increasing to $688 per week from 1 January 2014. Also by way of adult child maintenance her Honour ordered that the father pay K’s costs of private health insurance, any gap expenses payable to any medical practitioner, and a one-off lump sum of $10,000 to enable K to purchase a motor vehicle for transport to and from university.
By Notice of Appeal filed 21 February 2013, the father challenged the entirety of those orders and sought that the mother’s application seeking the adult child maintenance be dismissed, or alternatively be remitted for re-hearing before a judge other than Judge Demack.
By Cross-Appeal filed 20 March 2013, Ms Everett (“the mother”) appeals against the refusal of the Federal Magistrate to back date the order for periodic adult child maintenance to a date in March 2012, being the date when K turned 18, and sought an order that from 30 March 2012, the amount payable by the father to K be the sum of $620 per week, less any periodic payments made by the father to her during that period.
On 11 September 2013, May J referred to the hearing of this appeal that part of the father’s Application in an Appeal filed 5 September 2013, that sought to adduce further evidence at the hearing comprising evidence of K’s use of a motor vehicle, its purchase, and also a number of images apparently derived from his accessing social media sites of which K was a member.
Relevant Facts
The following is drawn from paragraphs [12] to [27] of the judgment of the Court below, and may be taken as uncontroversial.
The mother was born in 1959. The father was born in 1964.
The parties met in 1987. At that time the mother was employed as a healthcare professional. The father was undertaking university studies in medicine.
They married in 1992.
K was born in 1994.
The parties separated on a final basis in 2008.
Prior to the making of any order, the father was paying money to the mother by way of spousal maintenance and child support. An interim spousal maintenance order was made on 3 December 2009. Under that order, the father paid to the mother $650 per week, he was responsible for rates and insurances on the former matrimonial home, and subject to his approval, repairs and maintenance on the house, and he paid the mother’s private health insurance, the first $130 of the mother’s monthly telephone bill, and the insurance and registration on the vehicle driven by her.
At the time of trial of the mother’s claim for property settlement and spouse maintenance before Federal Magistrate Spelleken (as her Honour then was) in 2010, the father was paying the following expenses for K:
(a)$414.29 per week to the mother;
(b)$86 per week directly to K;
(c)K’s extra-curricular activities and gym fees;
(d)K’s medical, dental, optical, chemist and pharmaceutical needs;
(e)K’s education expenses, including tuition fees at a private high school.
By judgment delivered 31 May 2012, Federal Magistrate Spelleken made orders dividing the property of the parties to the marriage, and further ordered the father to pay spouse maintenance to the mother in the sum of $759 per week until 31 December 2013. In addition, some other specific payments were ordered to be made by the father to the mother.
K finished her high schooling at the end of 2011. She achieved the highest grade available to a school leaver. She was accepted into a science degree at university at Suburb X for the commencement of the 2012 academic year. She remained living at home with her mother in Suburb Y.
K has significant health difficulties. As an infant she was diagnosed with cystic fibrosis. She was diagnosed with diabetes in 2009, which is related to her cystic fibrosis. K also has an unrelated obsessive compulsive disorder, again diagnosed in 2009. In January 2012, K’s respiratory physician, Dr U, noted that K had persistent mild elevation of her liver function tests, which was again cystic fibrosis-related. This condition required further investigation.
Cystic fibrosis is a lung disease. The father’s witness in the trial below
Dr B, a thoracic physician, stated in his report dated 17 July 2012 (Exhibit SB-04 to his affidavit filed 19 July 2012) that:
…
[Cystic fibrosis] even when very well controlled imposes considerable burdens upon the lifestyle of the people living with the condition – indeed good health in this context is dependent upon rigorous participation in treatment regimens. Parental support is a key part of this even for young adults.
…
The mother never returned to the workforce after K’s birth. She remained at home, available to care for K and to provide her with the treatments that she needed and to take her to her many medical appointments.
K requires regular physiotherapy, in the form of positive expiratory pressure, four or five times per week, throughout her life. Each of these sessions takes between 45 and 90 minutes. Sterilised equipment is required to be maintained. Enhanced therapy in the nature of chest percussion physiotherapy is required when K is less well.
Diet is important for a person living with cystic fibrosis. Enhanced calories are required, and even more if K is unwell. Her salt intake has to be monitored, and an artificial enzyme given, which must be kept at a certain cool temperature.
The onset of diabetes has increased the importance and difficulty of managing K’s diet. K is insulin dependent, requiring injections.
K’s parents encouraged K in sporting endeavours, in part, as an adjunct to her health regimen. K became a talented sportswoman, excelling in a variety of sports. K enjoys regular training sessions at a gym with a trainer, and her mother considers that she should have the opportunity for that to continue, as it is a means by which she keeps healthy.
K’s obsessive compulsive disorder is well controlled by medication. She remains under the care of a consultant psychiatrist.
The Appeal
The Notice of Appeal specified five grounds, all of which were pressed at the hearing of the appeal.
Although Mr Matthews, counsel for the father, structured his oral submissions in a way that asserted that the primary ground of appeal relied upon was Ground 2, with the secondary ground being Ground 1, followed by Grounds 3, 4 and 5 described as factual grounds, it is convenient nonetheless to address the grounds of appeal in the order in which they appear in the Notice of Appeal. We will, however, first deal with the application to adduce further evidence.
Application To Adduce Further Evidence
Paragraph 3 of the father’s Application in an Appeal sought leave to adduce further evidence contained in paragraphs 14 to 19 of his contemporaneously filed affidavit. Those paragraphs dealt with two matters. The first was that a search of the Queensland Motor Vehicle Register disclosed that on 29 October 2012 (being a date within the period that the decision below was reserved) the mother had acquired a motor vehicle. The inference we were asked to draw from that evidence was that this motor vehicle was therefore available for K’s use if required.
The second matter was the annexure of 34 pages of what appear to be screen shots of K’s Facebook and Instagram accounts, which contain many photographs of K in a variety of social settings, together with email conversations between K and her friends.
It was not in dispute that the motor vehicle was indeed acquired by the mother during the time that the judgment was reserved, however the mother disputed the relevance of the photographs.
The relevant principles relating to the exercise of the discretion of this Court to admit further evidence were discussed by the High Court in CDJ v VAJ (1998) 197 CLR 172 at [108]-[115] and do not need repetition.
In our view, given that the purchase of the car is undisputed, it was not evidence reasonably available to the father at the time of trial, and it is potentially relevant to one of the matters agitated in this Appeal, we propose to admit the evidence at paragraphs 14 to 17 of the father’s affidavit filed
5 September 2013. However we do not propose to admit the evidence in paragraph 18 (which conjectures the source of funds for the purchase of the motor vehicle) as we do not see that as relevant to this case. Further, we do not propose to admit paragraph 19 of that affidavit, which deals with the Facebook and Instagram material. We can discern no relevance of that material to any aspect raised in this Appeal.
GROUND 1
Ground 1 of the Notice of Appeal asserts as follows:
Her Honour erred in holding, at paragraph 44 of the Reasons for Judgment, that the nature of the filial relationship between [K] and the Appellant, as found by Her Honour at paragraphs 41 and 43 of the Reasons for Judgment, was not relevant to the determination of the Application in a Case, and that such error was perpetuated throughout and informed the assessment of each and every item of expense claimed by the Respondent on behalf of the adult child, when such relationship was a relevant and significant consideration to the assessment of claims made pursuant to s.66L(1) of the Family Law Act 1975 (“the Act”).
The relevant part of the Federal Magistrate’s reasons is at [41] to [44]:
41.The father and [K] have a poor relationship.
42.Parenting orders were made on 4 November 2009 which provided for [K] to live with her mother and spend time with her father after school on Tuesdays, on special occasions and at other times as arranged between [K] and her father.
43.[K] has not reliably spent that time with her father. At the time of trial, [K] and her father were not communicating in any useful sense.
44.The nature of the relationship between the child and the prospective supporting parent, in particular, the conduct or attitude of the child towards the parent, is not relevant to the determination of the application (per Fogarty J in Gamble & Gamble (1978) FLC 90-452).
In his written submissions, Mr Matthews criticised her Honour for having relied upon Gamble, and ignoring the more recent decisions of Cosgrove & Cosgrove (1996) FLC 92-700 and Re: AM Adult Child Maintenance (2006) FLC 93-262. He also referred to the earlier decision of Oliver & Oliver (1977) FLC 90-227.
Section 66L(1) provides:
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.
Section 66J(1) provides the matters to be taken into account in considering the financial support necessary for the maintenance of a child, in the following terms:
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 s 66B; and
(b)the proper needs of the child (this is expanded on in sub-section (2)); and
(c)the income, earning capacity, property and financial resources of the child (this is expanded on in sub-section (3)).
Section 66B sets out the principal object and particular objects of the relevant division of the Act in which s 66J appears, being Division 7.
It will be appreciated therefore that given the positive statutory prohibition in taking into account matters other than those specified in s 66J(1), there is no opportunity for the filial relationship between the parents and the child to be taken into account by the court in the course of assessing the necessary financial support for the child.
On the other hand s 66K(1) which deals with the matters to be taken into account in determining a party’s contribution to a child’s maintenance, although initially cast in like terms to s 66J (in that it stipulates matters which the court must take into account, and prohibits other matters being taken into account) does include at s 66K(1)(e) the following matter which may be taken into account:
(e)any special circumstance which, if not taken into account on the particular case, would result in an injustice or undue hardship to any person.
This therefore provides a potential avenue for the relevant filial relationship to be considered, although only if it is a special circumstance of the kind contemplated in that sub-paragraph.
To the extent that the father contends that the filial relationship is relevant in determining the financial support necessary for maintenance of the child, that argument must be rejected, as s 66J(1) specifically precludes it. It can only potentially be relevant if it was a special circumstance of the kind described in s 66K(1)(e).
To return to the authorities cited to us, we observe that Gamble and Oliver were decisions made under the previous section of the Act (s 76).
By the time Warnick J decided Cosgrove in 1995, s 76 had been replaced by more expansive provisions contained in Division 7 of Part VII of the Act, within which s 66K (albeit at the time of Cosgrove, then relevantly s 66E) appears.
Having briefly reviewed the relevant authorities, Warnick J at 83,390-1 listed nine matters which, in his Honour’s opinion, were likely to bear upon the exercise of discretion in cases such as that which his Honour was then dealing with, including:
(ix).The filial relationship between the child and the person from maintenance is sought.
At 83,391-2 Warnick J said:
As to (ix), the attitude of the child, to the person from whom maintenance is sought was considered relevant in Mercer & Mercer (1976) FLC 90-033 and in Oliver & Oliver (1977) FLC 90-227 at 76,203. Asche SJ did not disagree that filial attitude could be relevant. However in Gamble & Gamble (1978) FLC 90-452 Fogarty J doubted the appropriateness of the considerations raised by Watson SJ in Mercer’s case, and in H v H (supra). Smithers J, though acknowledging that attitude of an adult-child may be relevant, thought it would not normally be appropriate to distinguish between children according to their attitudes to their parents.
For my own part, I respectfully agree with the observations of Asche SJ in Oliver (at p 76,203):
“I do not think that it is a necessary element of awarding maintenance that there should be a warm relationship between the parent and the child and if it were necessary in every case to prove that, it would encourage the child who behaved with smarmy obsequiousness to his parents as against the child who remained frank and honest as to his relationship …”
and I would abhor any practice which might develop in which an examination of the relationship between child and respondent became standard practice, but I do not consider it can be said that in no circumstances could the attitude of the child to the respondent constitute a special circumstance which might affect the justice of the case in terms of s 66E(1)(d), or be relevant to the exercise of the ultimate discretion.
An appeal from the orders of Warnick J failed: see Cosgrove v Cosgrove (No 2) (1996) FLC 92-701.
A comparison of the previous s 76 on the one hand, and the provisions contained within Division 7 of Part VII (whether s 66E as at 1995, or s 66K at present) on the other, demonstrates that a far broader range of considerations were potentially able to be taken into account under the earlier legislation. Particularly, by virtue of the reference in then s 76(1) to the matters referred to in s 75 the matters which a court could take into account included that specified in s 75(2)(o) namely “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.” There is no such equivalent matter contained in the current legislation, or indeed the legislation as it prevailed at the time that Cosgrove was decided.
It does not appear as though the Court in Cosgrove adverted to the much narrower scope of the statutory opportunity for filial circumstances to be taken into account in s 66E than in s 76. Given that earlier cases were decided in a statutory context where a broader range of matters could be had regard to, the utility of reciting purported statements of principle from them is dubious. That said, it does appear as though Warnick J correctly identified that, to the extent filial relationships could be relevant, it was only if they were a special circumstance of the kind contained within then s 66E.
We consider that the following propositions can be drawn from an analysis of the cases and the present legislation:
(a)it is not a necessary element, before adult child maintenance can be ordered, that there be a warm relationship between the parent and the child; and
(b)there should not be a practice in adult child maintenance applications of conducting a detailed examination of the relationship between the child and the Respondent; however
(c)it cannot be said that the attitude or behaviour of the child to the Respondent could, to use the language of s 66K(1)(e), never be a special circumstance which, if not taken into account in the particular case, would result in an injustice or undue hardship to any person.
However so stated, it is apparent that the task confronting a parent, who wishes to rely upon the filial relationship in determining what contribution should be made by them to the maintenance of the child, is a particularly difficult one. They would need to show that, if the filial relationship is not taken into account, it would result in an injustice or undue hardship to either them or someone else.
It follows then, that to the extent that the Federal Magistrate purported to say at [44] of her Reasons that the conduct or attitude of the child towards the parent could never be a relevant factor, her Honour fell into error. However that is not the end of the matter.
At [19] of her written outline, Ms Carew, who appeared for the mother before us, argued that if there had been an error of law perpetrated by the Court below, “there are no facts in the present case that would disqualify [K] from receiving adult child maintenance.”
To this, Mr Matthews argued that the existence of a bad relationship between a parent and a child might militate against a finding of necessity in relation to individual or groups of expenses. Given that, as we have identified, if it be relevant at all, the filial relationship can only be taken into account in determining contribution by a party, rather than the financial support necessary for the child, that argument must be rejected. Moreover, even at its highest, the father’s contention is simply that K has spent little time with her father, and communicates poorly with him. That may be so, but it is quite another thing to say that such conduct is a special circumstance which, if not taken into account in this case, would result in an injustice or undue hardship to the father or someone else. In fairness, Mr Matthews did not put his case in that way. Plainly on the facts here, such a case would fail.
This Ground of Appeal is not made out.
GROUND 2
Ground 2 of the father’s Notice of Appeal is expressed as follows:
Her Honour erred, at paragraphs 89 to 92 inclusive of the Reasons for Judgment, in making final orders which:
(a)had no temporal limitation or other reasonable, proper or adequate conditions so as to effectively engage the provisions of s 66VA of the Act, such as being for the duration of fulltime attendance for the specific undergraduate degree in which [K] was enrolled at the [university], and subject to such satisfactory progress during the continuation of such studies as required to maintain standing to continue with that course;
(b)gave to the intended adult beneficiary an unfettered, and therefore, unreasonable, discretion or option to undertake any and all tertiary education over an unspecified period into the future;
(c)were made without any or any adequate or proper reasoning process being apparent in the Reasons for Judgment, but rather was based upon an unexplained “preference” and contrary to the well-established principle that there should be finality in orders made under the Act;
(d)were without, limitation or consideration as to the Appellant’s capacity to indefinitely comply therewith;
(e)have the effect of reversing the onus in the future from the applicant for an order for maintenance to the Appellant to “consider his legal remedies” at the time of some indeterminate future “cataclysmic event,” and otherwise do not prescribe or reserve to the parties any entitlement to return the matter to the Court in the future in the event of a change of financial or other circumstances to seek to discharge, vary or modify the orders; and
(f)were unreasonable and unjust in all the circumstances.
The relevant part of the reasons for decision of the Federal Magistrate are as follows:
How long should the order last?
89.The mother seeks that the orders continue “until such time as [K] completes her tertiary education.” The father seeks further parameters around the end date: her first degree only, and so long as he is working fulltime.
90.It seems to me that the completion of [K]’s tertiary education is a better reflection on when she may be in a position to be employed using her university studies. A first degree is not always the mark that the graduate is due to commence employment – further studies may be warranted, typical or necessary.
91.The father is working fulltime as a specialist medical practitioner earning in the order of $665,600 per annum before tax. Even if he were to do that work part-time, he may still earn a considerable income. There is no present basis for finding that he has any lesser working life capacity than the length of time it will take [K] to complete her tertiary education. In the event that a cataclysmic event occurs affecting the father’s working capacity, he may consider his legal remedies at that time.
92.I consider that phrasing used by the mother to be preferable.
The essence of this ground of appeal is that to make an order for adult child maintenance “until such time as [K] completes her tertiary education” is an error of law in itself because there is no temporal limitation to the operation of the order, which could therefore operate indefinitely. Subsidiary arguments are that there was a failure to adequately expose any proper reasoning process for the order, that there was an inadequate consideration of the father’s capacity to indefinitely comply with the order and that, in effect, there was an obligation cast upon the father to return to court if circumstances in the future would justify a variation in the order. Based on all these matters, it was finally said that the order was unjust and unreasonable.
Asserted error in absence of limitation or conditions
At [33] of these reasons, we have already set out the terms of s 66L(1). Importantly that section does not provide for a temporal limitation to be imposed on an order for adult child maintenance, but plainly, the court needs to be satisfied on the evidence before it that the maintenance ordered is necessary to enable the child to complete his or her education, or because of a mental or physical disability of the child.
A number of earlier decisions both of single Judges and Full Courts of the Family Court of Australia have considered the necessity, as distinct from desirability, of making adult child maintenance orders that have a definite expiration, either by reference to a specific date or event. In the Marriage of Tuck (1981) FLC 91-021, the Full Court was concerned with an appeal against the refusal to make any order for the adult child maintenance of two children. In the course of their joint reasons Evatt CJ and Murray J said at 76,227:
The position is that S. was due to complete her basic degree in 1978, while P., had he continued with his original course, would have completed his degree in 1980. We do not think it just to compel the husband to pay maintenance for any longer than is required to enable the children to complete the basic university degree which they are undertaking at present. If that were done, the husband would have done his duty by the children. We do not consider that the husband should have to maintain S. so that she can obtain a higher degree. Nor should he have to contribute to P’s. maintenance to enable him to do a combined course…
The decision of the Full Court in Henderson and Henderson (1989) FLC
92-011 is often cited in support of the proposition that in making an order for adult child maintenance the court is not limited to only the duration of one course of education. However, that proposition needs to be read in the context of the facts of that case. There, an adult child had already completed one course of education, but had been unable to obtain employment in the field for which that training had notionally equipped her, and accordingly sought adult child maintenance for a second course. The majority of the Full Court held that it was open to the court to make an order providing for adult child maintenance for the duration of that second course of education. However, as is plain, it was not suggested that the maintenance should be able to continue beyond the completion of the second course of education, and in that context the Full Court indicated that “[t]here must, of course be an end to a parent’s obligation to support an adult child undertaking courses of education, but given the circumstances of the present case, we think that it was well within her Honour’s discretion to make the order that she did.” (at 77,030).
We were referred to a single Judge decision of Myrtle & Myrtle [2012] FamCA 460, not as containing any relevant statement of principle, but rather as an example of the sort of order which it was contended ought perhaps have been made here. In that case the relevant order provided:
The payments in Order 25 will cease upon:
(a)MM commencing full-time employment; or
(b)in respect of any period exceeding six (6) months when MM is not habitually residing in the Wife’s residence; or
(c)the discontinuance of MM’s enrolment at TAFE or university; or
(d)MM failing to pass two or more subjects in one semester forming part of his tertiary study course requirement; or
(e)MM being absent from tertiary study for a period of longer than four months; or
(f)the day on which MM marries or commences residing in a de facto relationship; or
(g)1 February 2015;
whichever is the earlier.
There is nothing to preclude a Court, either at the time of initially dealing with the application for adult child maintenance, or subsequently in dealing with a further application, from making a maintenance order for either a then positively identified, or alternatively only merely possible, second course of higher education. However that said, in either case the Court would still need to be satisfied on the evidence that the provision of the maintenance is necessary to enable the child to complete that education.
In our view, the making of the order in the terms made by the Federal Magistrate was not an error of law. She was, as Ms Carew submitted, making an order substantially mirroring the provisions of s 66L(1)(a) itself, save that her Honour restricted the education the subject of the order to tertiary education.
However, the question remains, did her Honour err in failing to put in place a temporal limitation or specific conditions? We find that her Honour did err in this regard.
No adequate or proper reasoning process apparent in reasons
At [89] to [92], the Federal Magistrate clearly identified that the intention of framing the order to conclude upon the completion of K’s tertiary education was to provide support to her until such time as she was able to be employed using her university studies. However, that is not required by s 66L and cannot provide a legitimate reason for framing the order as her Honour did. Further, her Honour does not appear to have adverted to the potentially indefinite operation of her orders, or considered whether such an order was just and reasonable. Nor has her Honour identified the evidence before her that satisfies the requirements of s 66L. Her Honour also does not appear to have recognised that minimum workloads and satisfactory progress might ordinarily be considered as matters requiring attention in adult child maintenance orders intended to enable a child to complete their education, or to have explained why any such conditions were not, on the particular facts of the case, included in her orders. In our view, those are matters which it was incumbent upon
her Honour to expose in her reasoning. Moreover, her Honour’s expressed preference for the “phrasing used by the mother” in the formulation of her orders suggests that perhaps her Honour was of the view that differences between the competing proposals were only semantic. They were not.
This aspect of this ground of appeal is therefore made out.
Failure to consider father’s capacity to comply
This may be shortly dealt with. Paragraph [91] of the reasons below expressly adverted to the father’s then annual income of $665,600 before tax, and there was a specific finding that “there is no present basis for finding that he has any lesser working life capacity than the length of time it will take [K] to complete her tertiary education.” Plainly her Honour did address the father’s capacity to pay.
Thus this aspect of this ground of appeal has no merit.
Alleged reversal of onus
We do not read [91] of her Honour’s reasons as reversing an onus: all that her Honour was doing was adverting to the prospect that the father may, should circumstances suggest it, bring an application under s 66S for modification of the adult child maintenance, and particularly, should there be a sufficient change in circumstances, for the father to seek a variation of the order. Thus there is also no merit in this aspect of this ground of appeal.
Unjust and unreasonable in all the circumstances
As argued, the attack made on her Honour’s reasons was primarily directed towards the absence of temporal limitation, (save that the orders would cease upon K concluding her tertiary education) without there being any minimum workload required to be undertaken, or reasonable progress maintained.
Although the clear purpose of her Honour’s orders were to ensure that K’s needs were met until she became qualified for employment, which of itself could not be said to be unreasonable or unjust despite not being the relevant test or the required focus under s 66L, the difficulty is that the orders were not cast in a way which protected the father from an indefinite timeframe in which that outcome might – or might not – be achieved. Under the orders, so long as K could be said to have not yet completed her tertiary education – a term which itself is notably imprecise – the father’s obligation to pay adult child maintenance continued. Such orders are unjust and unreasonable, and not a proper exercise of the discretion, which thereby miscarried.
We are persuaded that this aspect of this ground of appeal is made out.
GROUNDS 3, 4 & 5
Both in their written and oral submissions, counsel for the father and mother argued these grounds cumulatively. It is therefore convenient if in these reasons, we similarly deal with them.
Grounds 3, 4 and 5 provide as follows:
3.Her Honour erred in law and/or in fact in making each and every of her findings and in the absence of any sworn evidence or disclosure of financial documents and records from the intended adult beneficiary of the orders sought by the Application in a Case, and on the basis of the material filed by the Respondent which was and could only have been informed by hearsay, was not supported by contemporaneous or current financial documents and records, which, despite written request by the Appellant and contrary to the Respondent’s duty of disclosure, had not been disclosed by her.
4.Her Honour erred in finding, contrary to the evidence, including the uncontradicted expert evidence of Dr [B] (to which no reference is made in the Reasons for Judgment), that:
(a)both parents were committed to her achieving a university education and agree that she needed financial support to that to occur;
(b)the amount claimed by the Respondent for food and household items ($250.00) solely attributable to [K] was wholly appropriate;
(c)it was reasonable for the Respondent and [K] to both be responsible for the electricity costs which were allowed at $42.00;
(d)there was no basis for the Court to consider that house cleaning expenses must be met by outside contractors but an increase in adult child maintenance was dictated from 1 January 2014 (the date from which the Respondent’s spouse maintenance would cease) in the amount of $68.00 referrable to housecleaning and pool servicing;
(e)$14.00 per week was a reasonable allowance for [K]’s mobile phone use;
(f)$33.00 per week for clothing, shoes and dry cleaning was not excessive in the Appellant’s mind, and therefore $50.00 per week for a clothing allowance was reasonable;
(g)$50.00 per week ought to be allowed for entertainment and hobbies, because that was the weekly sum the Appellant attributed to himself for such items;
(h)although animal care for three pets of $22.00 was not relevant to [K]’s education as such because they are her responsibility the Appellant must pay that amount by way of adult child maintenance;
(i)a claimed amount for chemist and pharmaceuticals of $92.00 per week should be accepted, because the Respondent was well aware of what services or discounts were available;
(j)hairdressing, pedicures and skincare claimed at $22.00 per week should be accepted as well as an allowance was made for $30.00 hair care every six weeks or $5.00 per week;
(k)gym membership including sessions with a personal trainer at $60.00 per week although not medically necessary ought be allowed because there was no evidence that [K] was wasteful or profligate;
(l)claims for textbooks and computers should be allowed at $25.00 per week together with books and magazines at $10.00 per week on the basis that that amount the Appellant allowed himself;
(m)[K]’s weekly maintenance needs represented financially amount to $620.00;
(n)the lack of any detail or evidence of [K]’s work or earnings in the Affidavit was adequately explained by the Respondent;
(o)there was no evidence to suggest that [K] has any capacity to earn money which would be of a quantum or consistency to be reliably applied for her support and any earnings she received would be more likely to be small amounts irregularly which could be applied by her at her discretion;
(p)the Respondent did not have the present capacity to contribute to [K]’s maintenance at all;
(q)in order for the Respondent to be able to attend to her own and [K]’s needs from future income she (the Respondent) would need to have an after tax income of over $72,000.00;
(r)at the end of 2013 the Respondent would not be in a better position to assist with contributing to [K]’s maintenance;
(s)given the history of difficulties in communication between the Respondent and Appellant and non-communication between the Appellant and [K] it seemed reasonable to regularise payments of private health insurance through a Court Order;
(t)the purchase of a car was necessary for the purposes of enabling [K] to compete her education, as acknowledged by the Appellant;
(u)because a first degree is not always the mark that the graduate is due to commence employment and further studies may be warranted typical or necessary there was no necessity for a temporal limitation on the order.
5.Her Honour failed generally to provide adequate reasons for finding expressly or implicitly that each of the items of maintenance claimed which she allowed was necessary for the purpose prescribed by s.66L(1)(a) of the Family Law Act 1975 and, particularly in light of the uncontradicted expert evidence, Her Honour did not demonstrate by reasons a proper assessment or analysis, and thus the process of reasoning is deficient in the appellate sense.
Taken literally, Ground 4 would seem to invite appellate review of as many as 21 factual findings, even down to the minutiae of, for instance, whether or not the evidence supported a finding that K’s mobile phone use was reasonably allowed at $14 per week. Unsurprisingly however, that is not the way in which the appeal was in fact argued by Mr Matthews. Rather, in dealing with Grounds 3, 4 and 5 as an amalgam, there were three principal issues upon which he particularly focused: firstly, an asserted error of principle by the learned Federal Magistrate as to what would comprise “necessity,” secondly, an asserted error of fact in the finding that the specific items were necessary, and thirdly, inadequate reasons or reasoning as to the basis upon which the asserted items of expenditure were held to be necessary.
There were then three additional issues which Mr Matthews pressed relating to these grounds. The first was that her Honour erred by making findings of the financial support necessary for K’s maintenance without any direct evidence from her, but rather on, primarily, evidence from her mother. The second was that as part of her reasoning in determining the quantification of K’s needs, she on occasion used a “good for the goose – good for the gander” approach: In other words, quantifying the amount allowed in relation to some items of K’s needs by reference to the amount that the father expended himself for such items. Thirdly, it was argued that her Honour ought to have given, where relevant, great or greater weight to the evidence of Dr B, a thoracic physician who provided a report at the request of the father, particularly because it was un-contradicted.
It is therefore convenient if we deal with these grounds by reference to those six topics in the order we have identified them above.
Necessity – error of principle
Mr Matthews argued, correctly, that s 66L prohibits the making of an order for adult child maintenance unless the court is satisfied that such maintenance is necessary to enable the child to complete his or her education. Thus, the central focus of the enquiry is the question of whether the maintenance is necessary for that purpose.
The construction of the word “necessary” has been well settled in this Court for many years. In Tuck at 76,227 Evatt CJ and Murray J said:
To define “necessary” as meaning “absolutely essential” is to give the adjective a most stringent definition. That stringency, in our view, is not warranted by the concept expressed very strongly by the Act that the Court shall regard the welfare of the child as the paramount consideration. “Necessary” in this context means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors.
At [47] to [48] of her Honour’s reasons, under the heading “Is maintenance necessary to enable [K] to complete her education?” her Honour said:
47.The parents of [K] are both committed to her achieving a university education. They agree that she needs financial support for that to occur. The father concedes that point through his position that [K] should be the applicant and/or [K] should approach him directly for financial assistance. The father’s alternate position in Exhibit 3 would appear to concede that [K]’s weekly expenses are at least $300plus private health cover and gap medical expenses payments.
48.Given that I have already considered that the mother has standing to bring the application and that there is no legislative basis for [K] to have been a necessary witness, it is the quantum of adult child maintenance which requires the detailed consideration.
Whilst it may have been helpful if her Honour had referred to relevant authority in those passages of her reasons, nonetheless, no error of principle appears directly or implicitly in them. Moreover, earlier in the reasons at [45] (albeit under the heading “Should an Order be made in the mother’s favour”?) her Honour had said:
The onus is on the applicant, herein the mother, to persuade the Court that the maintenance is necessary. The persuasion can only be based on evidence …
At [49] to [88], her Honour considered individual components of the claim for adult child maintenance repeatedly by reference to whether individual items were “necessary.” There is nothing in her Honour’s consideration as to what may be “necessary” which would suggest that she misunderstood either what the concept of “necessary” required, or that she was not mindful that an order for adult child maintenance should not be made unless it was necessary for either the purpose or the reason articulated in ss 66L(1)(a) and (b).
Therefore, to the extent that these grounds assert an error of principle, they must fail.
Findings of necessity
Little argument was addressed to the specific components that were allowed within the award of adult child maintenance by the father. In his written submissions at paragraph 28 Mr Matthews said:
Combined with this is the consideration that many of the allowances for maintenance expenses assessed by her Honour were what could colloquially be called “what’s good for the goose is good for the gander” type findings, for example, $50.00 per week for entertainment being allowed merely because the Appellant himself, by his amended financial statement filed 12 June 2012, swore that that is what he spent on average per week. An assessment based on the same justification was made in relation to both clothing and books and magazines.
In his oral submissions, Mr Matthews also particularly challenged the allowance made in the order for $10,000 to enable K to purchase a car.
It is useful to state at this point that this aspect of the three grounds of appeal asserts errors of fact, as plainly the determination that something was “necessary” to, for instance, enable K to complete her education, is such a finding. In order to succeed, it would be necessary for the father to demonstrate that the findings in relation to the impugned items, or their quantification, were not reasonably open to the Federal Magistrate on the evidence before her. Mr Matthews did not so structure his argument, nor did he directly so contend.
All of the components which together justified the adult child maintenance in the sum of $620 per week, thereafter increasing to $688 per week, were the subject of evidence before the Federal Magistrate. Many of them were the subject of cross-examination. Some of the claims that were advanced were plainly not accepted by her Honour – for instance, holidays including an overseas trip per year, including a business class airfare, were claimed at $163 per week. Her Honour rejected that claim as there was no basis for considering that K required the provision of a paid holiday or travel for the purposes of completion of her study.
We do not propose to consider the factual necessity of each of the items of recurrent expenditure that were allowed by her Honour and that are referred to in Ground 4 of the Notice of Appeal, and ultimately we were not asked to by Mr Matthews.
However two items do require individual consideration. The first is the purchase of the car, specifically raised in Ground 4(t) and in Mr Matthews’ submissions.
Her Honour’s reasoning in relation to the car is contained at [82] to [88] of her judgment. Those paragraphs provide as follows:
82.[K] has remained living with her mother at the house at [Suburb Y]. She attends university at [Suburb X]. Both are suburbs of Brisbane and are some distance apart. The public transport options for moving between the two suburbs are convoluted. The mother is also concerned about the effects on [K]’s health in her being exposed to the any unwell person whilst on public transport, unable to remove herself from the environment. Flu and flu-like illnesses particularly during the winter months are of the greatest concern.
83.Further, [K] intends upon giving herself a full schedule of activities. Apart from her study and specific on-campus commitments, [K] intends on finding some part-time employment. She also has her health regimen to maintain, including regular gym sessions. Within her busy day public transport would slow her down, make keeping commitments difficult if not impossible, and limit her capacity to be flexible in her availability and scheduling.
84.The father opposes a lump sum payment for [K] to buy a car. He rebuffs the health based argument, citing the fact that [K] will be in large lecture halls, exposed to her fellow students and their colds or flu. If [K] is too ill to travel by public transport, he considers it unlikely that she will be travelling to university that day by any means, including her own car. Further, the father points out that the mother has a car available for her use, and as she is not employed, [K] may have its use.
85.Further the father points out that to his knowledge, [K] had some savings already earmarked for purchasing a car, and he considers that it would be preferable for her to have to save for a car, rather than have it merely provided to her by her parent or parents. The mother points out that the father’s adult stepson drives a car provided by him by his mother and her partner (the Respondent father herein).
86.It seems to me that the question for the court is whether the provision of money for the purposes of buying a car is necessary for one of the matters that the legislation directs attention towards. That is, is it necessary for the purposes of enabling [K] to complete her education, or because of her mental or physical disability?
87.The father appears to acknowledge, through his suggestion that [K] may be able to borrow her mother’s car, that private transport to university may be necessary. He does not provide any criteria to establish when it may be necessary. Given the other evidence about [K]’s significant health issues and the father’s clear understanding of those issues, it seems to me that it is reasonable for the court to understand that the father considers that it may be necessary for [K] to travel by private transport because of factors which are particular to [K] and her needs which are different from the needs of a student with [K]’s medical conditions.
88.Regardless of the fact that the mother is not employed outside of the home in any regularised way, that does not mean that her motor vehicle is always available for [K]’s use. The mother is presently borrowing another vehicle from a friend to enable [K] to have access to a car. There is no reason why the mother should have to arrange her commitments to make her car available for [K]’s use nor any reason why she should have to continue to rely on the charity of a friend. [K] either has a need for a car, or she does not. I have already considered that the father acknowledges the need for a car. The quantum sought is modest. The mother considered that she would also contribute to the cost of purchase. The order should be made in the sum of the sought $10,000.
This is a convenient place to record that her Honour’s reasons do contain an inconsistency as to the basis upon which her Honour was purporting to award adult child maintenance, and particularly whether it was necessary to enable K to complete her education, or because of K’s mental or physical disabilities.
At [38] of her Honour’s reasons, when discussing the law, and having recited
s 66L, her Honour said:
The question then, is whether the provision of maintenance is necessary for [K] to complete her education or because of some mental or physical disability of [K]. Despite [K]’s significant health difficulties, it is on the first limb of the provision that the mother relies.
The basis for her Honour so saying that the mother restricted her case only to the first limb is unclear. It certainly does not appear to have been so restricted by the relevant Application in a Case filed by the mother on 19 March 2012, nor does it appear to have been so restricted in the mother’s affidavits. In fact, quite the contrary – there is extensive material in the mother’s affidavit dealing with K’s medical condition and her obsessive compulsive disorder.
Further, later in her reasons, the Federal Magistrate specifically allowed certain items of adult child maintenance because of K’s health difficulties, particularly the payment of private health insurance and the car. Against that position, it appears as though her Honour’s observation that the restriction of the application to “completion of education” alone was an error, but an error her Honour thereafter did not perpetuate when considering individual components of the maintenance she allowed.
Her Honour’s advertence to K not seeking adult child maintenance as a result of mental or physical disability was specifically referred to by
Mr Matthews at paragraph 27 of his written submissions, but did not seem to be relied upon by him other than in the context of his complaint that K ought to have given evidence herself.
Turning then to the evidence relating to the need for a motor vehicle, the father is correct to identify that, certainly in relation to the car, the evidence of
Dr B was relevant, and uncontradicted. In his evidence he said that he did not advise people with cystic fibrosis to avoid public transport. Further, there was evidence of available public transport for K to travel from her home to university each day and return, which is scarcely surprising given that K lives in a major capital city.
Her Honour seemed to place great weight upon the fact that K had a practice at the time of the trial of using the mother’s car, and inferred that the father accepted that a motor vehicle was necessary because he argued that she could continue to use it.
With the greatest of respect to her Honour, we do not find that reasoning persuasive. Plainly enough there is a need for K to travel to and from university; equally plainly there is public transport available for her to do so. The fact that she may for whatever reason choose to travel by car instead, does not by itself and without more establish a necessity. Moreover, the evidence of Dr B would preclude that the provision of a car was necessary because of K’s cystic fibrosis.
Accordingly we would allow the appeal to the extent that it challenges the allowance in relation to the motor vehicle.
We note that in this circumstance we have not needed to refer to the further evidence that has been admitted in order to determine that an appealable error has been made by her Honour.
The second item which requires individual consideration is the increase of K’s adult child maintenance from 1 January 2014 to the sum of $688 per week, which is attributable to $68 for the cost of house cleaning and pool servicing thereafter not being funded from mother’s spouse maintenance.
Nowhere in her Honour’s reasons does she explain why the cessation of spouse maintenance generated an increased need in K attributable to this item. Her Honour appears to have regarded it as something of an automatic consequence upon the cessation of spouse maintenance, without analysing the matter afresh from the perspective of necessity. In doing so, her Honour erred.
Accordingly, we would allow the appeal to the extent that it challenges the increased allowance in relation to house cleaning and pool servicing of $68 per week on and from 1 January 2014.
Adequacy of reasons
In his written submissions, Mr Matthews contended as follows in relation to this aspect of the appeal:
29.There is no explanation in the Reasons from which the Appellant, as a litigant, could reasonably ascertain the logical distillation of the admissible evidence which justified findings of “necessity” in the respects identified in Ground 4 of the Notice of Appeal.
30.There seems, with respect, to be no explanation apparent for her Honour’s failure to make findings with respect of a significant body of critical evidence, including the uncontradicted expert opinions of Dr [B], or to properly weigh the evidence and apply established legal principle without error such that a re-trial may well be necessary.
At paragraph 32 Mr Matthews continued:
Her Honour’s Reasons for Judgment and the findings identified above fail, it is submitted, to meet the requisite process of reasoning.
Our task then is to assess whether or not there is an adequate expression and articulation of the reasoning as to why it is that the maintenance that was ordered was necessary for one or both of the reasons specified in
s 66L(1)(a) or (b) of the Act.
We have already identified that the process embarked upon by her Honour was the common, and indeed the orthodox, one of reviewing each asserted item of expenditure to determine whether it was necessary, and in the event that it were found to be necessary, to then seek to quantify the likely cost of it. The third and final stage of her Honour’s approach was to, consider in relation to the total quantified needs of K, what contribution the father should make to that maintenance. As we say, that approach is quite unremarkable.
With respect, this aspect of the appeal seems to us to confuse the quantification of the cost of meeting a need in relation to a particular item, with the need of the item itself. A good illustration of this is the mobile phone costs which were allowed at [57] of the judgment. That paragraph provides as follows:
Mobile phone at $14.00 per week is claimed. The mother advised in cross-examination that she had evidence to support that claim “in her bag.” It was not called for. This is a modest claim. Given [K]’s health needs it seems prudent that she have the capacity to retain a mobile phone. It (sic) not seem to me to be a discretionary spend, or a frippery. $14.00 per week for [K]’s phone is allowed. I will not allow separate amounts for the home landline or internet. Under the spousal maintenance order the husband will pay the first $130.00 of the wife’s phone bill until the end of this year. In any event, the amount already allowed satisfies [K]’s phoning needs. Internet access is available at university.
Plainly her Honour was of the view that the item of mobile phone expenditure – whatever it may be assessed at – was appropriate “given [K]’s health needs.” It was expressly excluded as being a “discretionary spend” or a “frippery”. The basis of the quantification was as set out in the mother’s affidavit. Likewise, the reasons for the disallowance of the home landline and internet costs, is explicit.
As we have said it is unnecessary to set out the individual paragraphs of her Honour’s reasoning in relation to the individual components of the maintenance ordered. Suffice to say that save and except in relation to the allowance for a car and the increase for house cleaning and pool servicing we are of the view that there is an adequate exposure of the basis upon which each of the individual items has been found necessary, and thereafter quantified. However in relation to the allowance for a car and the increase for house cleaning and pool servicing, there is not an adequate exposure of her Honour’s reasoning, and to that extent this ground of appeal succeeds.
Failure to have evidence from K
This ground may be shortly dealt with. First, there was no objection made to the evidence relied upon, and given, by the mother as to what she expended on K. Indeed, there could be no objection on the basis that Division 12A of the Act applies to these proceedings, and as such many of the rules of evidence (including as to the admissibility of hearsay evidence) do not apply (s 69ZT of the Act). Further, the mother in fact purchased many of the items claimed, or was the direct source of funds for their purchase, and thus was the person best placed to give evidence of the costs she incurred in meeting the expenses of K. The evidence was therefore properly before the Federal Magistrate and may be given such weight by the court as the court thinks fit (s 69ZT(2)).
Particularly in matrimonial proceedings, it can be readily understood why a child with an already tenuous relationship with a parent, may wish to avoid either being the claiming party themselves, or a witness available for cross-examination in the proceedings.
There is simply no merit in the claim that the appeal ought succeed because K was not a witness.
Good for the goose – good for the gander
There are several instances, including those referred to at [82] above, where the learned Federal Magistrate justified the quantification of the cost of providing an item necessary for K’s maintenance, by reference to the amounts expended by the father. However it does not appear that her Honour ever justified the inclusion of an item of expenditure – as distinct from its quantification – merely upon the basis that the father incurred such expenditure. In evaluating the reasonableness of the likely cost of an item of necessary expenditure, it is thereby permissible to have regard to the father’s expenditure. Doing so serves as a means of cross-referencing the reasonableness of the claim by the mother. To do so does not comprise appealable error.
Dr B
By report dated 17 July 2012 Dr B, a thoracic physician, answered six questions posed of him by the father’s solicitors. In an addendum to that report dated Thursday 19 July 2012, he answered two supplementary questions. Relevantly the questions and supplementary questions and the respective answers are as follows:
1. Should this person be avoiding public transport such as City cats, buses and trains in order to minimise her chance of catching colds etc?
Most respiratory viruses are transmitted by carriage from hand to nose/mouth. I do not advise people with CF to avoid public transport.
2. Would you anticipate this person being able to work part time should she choose to do so whilst studying at University (University involves 16 contact hours per week)?
Many people living with CF have full or part time jobs (indeed normal integration within the community is a goal of treatment) and I do not think, on the information available, that some part time work would be contra-indicated.
3. It has been suggested that she requires regular pedicures, for medical reasons. Whilst she has been diabetic for 3 years she has normal feet, normal circulation and no neurological deficits in relation to diabetes etc. Would this be standard medical advice in this circumstance?
Good foot care is important in diabetes. The young lady has had diabetes for 3 years; microvascular disease is unlikely within 5 years of the onset of this complication. Nonetheless some contact with podiatrists (likely initially once or twice a year) is appropriate for appropriate education, with the frequency of visits increasing over time and dictated by the evidence of microvascular or neurologic complications.
4. It has been suggested that this person requires a personal trainer 2-3 times per week, would this be medically advised or would a gym membership such as [the university] or fitness first or similar be just as beneficial?
Exercise is a critical part of therapy in CF. This particular young women [sic] has shown evidence of application and aptitude for team sports. Clearly there are many ways vigorous aerobic exercise can be performed. Most people with CF do not have personal trainers and I do not believe it would be mandatory in her case.
5. In terms of CF related constipation are there any specific recommendations for management? It has been suggested that the optimal treatment is Nulax bars at a cost of $80 per month or so?
There are many ways of treating CF constipation. I have insufficient information to answer this question.
6. It has been suggested that she only fly Business class to reduce her risk of viral exposure? Is this a medical recommendation in general with this condition?
As per question # 1 I do not believe this is a medical necessity.
Supplementary questions:
Does the young lady require air-conditioning?
I do not believe air conditioning, whilst enhancing quality of life, is medically essential.
Is a heated swimming [sic] important in the medical care?
See my response to question # 4 – Swimming is an excellent form of exercise but I do not believe a heated swimming people [sic] is necessary for treatment.
Dr B had never seen K, whether in the context of a medico legal assessment or therapeutically. He was being asked to provide generalised advice albeit in the context of a short summary of K’s medical condition. Insofar as his evidence dealt with public transport, we have already indicated that we propose to disallow the maintenance calculated by reference to the cost of purchasing a motor vehicle. As to his evidence in relation to there being no need for K to fly business class, the learned Federal Magistrate did not allow any such component. One is then left to conjecture what assistance the balance of Dr B’s report could have given the Federal Magistrate. That is particularly so given that, on occasion, Dr B expressed his own opinion of whether something was necessary or not. Whilst it may be that that evidence was not contradicted, it does not mean that therefore the Court was bound to accept that what Dr B thought was or was not necessary against some unspecified criteria, was necessary or not for the purposes of s 66L.
There is no substance in this aspect of the appeal.
Cross-Appeal
The grounds in the cross-appeal are as follows:
1.Her Honour erred in failing to backdate the order for periodic adult child maintenance to [a date in March] 2012 being the date when the child [K] turned 18.
2.Her Honour erred in failing to provide adequate reasons for her decision not to back-date the maintenance.
Her Honour’s reasons relevantly provide as follows:
74.The mother had sought that the amount be back-dated to the date of her application, and the father resisted any back-payments being ordered. The mother has agreed through her solicitor that any payments ordered should be made payable to an account in [K]’s name. I cannot see that back-payments to [K] would be appropriate, there being no evidence that she has expended monies.
75.I weigh up:
a.The mother’s obligation to support her daughter financially, and to adjust her other expenditure accordingly; and
b.The time taken between the filing of the application and the delivery of judgment, along with;
c.The consideration that I have found that the entire future burden of the expenses of [K] (as determined by the Court) is to be borne by the father, along with;
d.The evidence that the father has been voluntarily contributing directly to [K] in an amount of the order of $300.00 weekly;
and consider that the amount ordered shall be from the date of this order.
In her Summary of Argument in support of the cross-appeal, Ms Carew placed great importance upon the mother’s demonstrated lack of capacity to contribute to K’s maintenance, together with the asserted fact that between March 2012 and January 2013, the effect of her Honour’s orders was that the mother bore the burden of what was said to be at least $15,000 of expenditure.
In his response, Mr Matthews argued that her Honour’s reasons did not disclose any error of principle, or that the outcome was plainly unjust or unreasonable.
The time for the commencement of the order was clearly a matter of discretion. We agree that there is no error of principle demonstrated on the face of her Honour’s reasons. Moreover, as is plain from Norbis & Norbis (1986) 161 CLR 513, appellate interference with the exercise of a discretion of the kind in question here is quite circumscribed. Whether or not to back date an order is precisely the sort of matter upon which “different minds might reach widely different decisions without either being appealable”. We are not persuaded that the refusal to back-date fell outside “the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”.
There is no merit in these grounds of appeal.
Conclusion
We have found merit in aspects of Grounds 2, 4 and 5, and thus the appeal must be allowed in part. As far as the cross-appeal is concerned, we have found no merit in the grounds of appeal, and thus the cross-appeal must be dismissed. In relation to the appeal, the question then becomes whether the orders should be set aside and the proceedings remitted for rehearing in the Federal Circuit Court, or whether we can re-exercise the discretion. To the extent that the appeal has succeeded, it relates to not only the inadequacy of reasons, but also the substantive content of the orders pronounced. Particularly in light of our conclusion that the absence of temporal limitation upon the order caused the exercise of the discretion to miscarry, we are of the view that all of the orders must be set aside and the proceedings remitted for further determination. In order to properly form the exercise of the discretion, at the very least there will need to be a further enquiry as to the sorts of matters that inform the precision of the orders in Myrtle.
Costs
At the conclusion of the hearing we sought submissions from the parties as to the question of costs depending on the result of the appeal and the cross-appeal.
If the appeal succeeded it was submitted that costs should follow the event, and likewise if the cross-appeal succeeded.
In relation to the appeal, we have only found merit in some aspects of the grounds of appeal and we are not persuaded that it is appropriate to make an order for costs in favour of the father.
In relation to the cross-appeal, both in terms of the written submissions of the parties and the oral submissions made at the hearing, very little time was taken up compared with the time taken in relation to the appeal. Accordingly we are also not persuaded that it would be appropriate to make an order for costs in relation to the cross-appeal in favour of the mother.
We consider that each party should bear their own costs both in relation to the appeal and the cross-appeal.
In those circumstances, and given that we are allowing the appeal on questions of law, we consider that it is appropriate for each party to be given costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal, but of course not the cross-appeal given that that will be dismissed, and for the rehearing of the proceedings.
I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 August 2014
Associate:
Date: 26 August 2014
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