Harold & Raymond

Case [2021] FCCA 644

FEDERAL CIRCUIT COURT OF AUSTRALIA

Harold & Raymond [2021] FCCA 644

File number(s): MLC 2003 of 2021
Judgment of: JUDGE BENDER
Date of judgment: 22 March 2021
Catchwords:

CHILD SUPPORT – Mother’s application for adult child maintenance pursuant to s66L of the Family Law Act – where Father has not seen child in 7 years – where Mother seeks to backdate child maintenance beyond when the Application was filed

HELD – Father to pay child support in the sum of $225 per week to be paid in fortnightly instalments until the child has completed his undergraduate degree – Father to pay $1,253.00 by way of back payment from when the Application was filed – Mother to provide the Father with proof that the child was enrolled and completed a full-time study load at the commencement and conclusion of each semester until such time that he completes his undergraduate degree
Legislation:

Family Law Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)
Cases cited:

KEK & BK [2005] FMCAfam 250

Paul & Paul (2012) FLC 93 – 505

Tomasevic & Karavesky [2021] FCCA 172

Number of paragraphs: 68
Date of last submission/s: 17 March 2021
Date of hearing: 17 March 2021
Place: Melbourne
Counsel for the Applicant The Applicant appeared in person
Counsel for the Respondent The Respondent appeared in person

ORDERS

MLC 2003 of 2021
BETWEEN:

MS HAROLD

Applicant
AND:

MR RAYMOND

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 MARCH 2021

THE COURT ORDERS THAT:

1.Pursuant to s 66L of the Family Law Act 1975 the Father shall pay for the maintenance of the adult child Mr B born in 2002 (“Mr B”) the sum of $225.00 per week from 18 February 2021 until Mr B completes his full-time undergraduate studies at C University (“the adult child maintenance”).

2.The Father shall pay the adult child maintenance to the Mother’s account, account name Ms Harold, BSB … and account number …63 as follows:

(a)The sum of $1,253.50 on or before 4.00pm 29 March 2021 (being the adult child maintenance from 18 February 2021 to 29 March 2021); and

(b)The sum of $450.00 on 12 April 2021 and each fortnight thereafter.

3.The payment in Order 1 herein shall cease upon:

(a)Mr B commencing full-time employment (other than during the long summer university vacations at the end of years 1 and 2 of his undergraduate degree);

(b)Mr B deferring his studies or ceasing to study full-time;

(c)Mr B discontinuing his enrolment in his studies at C University; or

(d)Mr B completing the requirements of his studies at C University.

4.The payment referred to in Order 1 herein be varied on 1 February each calendar year (“the review date”) commencing in 2022 to such sum as shall be determined by multiplying the adult child maintenance being paid on the review date by the fraction N/C where “C” is the consumer price index for Canberra (all groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ending…

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Details
AGLC
Harold & Raymond [2021] FCCA 644
Case
[2021] FCCA 644
Decision Date

CaseChat Overview and Summary

In the matter of MLC 2003 of 2021, Ms Harold (the Applicant Mother) sought adult child maintenance from Mr Raymond (the Respondent Father) for their adult child, Mr B. The application was heard by Judge Bender.

The primary legal issue before the court was whether the provision of maintenance for Mr B, who was over 18 years of age, was necessary to enable him to complete his undergraduate studies at C University, as required by section 66L of the *Family Law Act 1975* (Cth). The court was also required to determine the appropriate amount and duration of such maintenance, considering the relevant factors outlined in sections 66J and 66K of the Act.

Her Honour applied the principles established in *Paul & Paul* and *KEK & BK*, which interpret "necessary" under section 66L not as absolutely indispensable, but rather as a base level of necessity established by balancing the child's reasonable needs for education against the parents' financial circumstances and the child's own capacity to earn. The court considered factors such as the child's age, educational expectations, any special needs, and the child's income, earning capacity, property, and financial resources. The court also had regard to the parents' financial capacity and commitments.

The court ordered the Father to pay $225.00 per week for the adult child maintenance from 18 February 2021 until Mr B completes his full-time undergraduate studies. Specific payment arrangements were detailed, including a lump sum for arrears and fortnightly payments thereafter. The maintenance obligation was to cease upon Mr B commencing full-time employment (outside of university holidays), deferring or ceasing studies, discontinuing enrolment, or completing his degree. The order also included a provision for annual review of the maintenance amount based on the Consumer Price Index for Canberra. The Mother and/or Mr B were required to provide proof of Mr B's full-time enrolment each semester.

Orders

Orders of the court

MLC 2003 of 2021

BETWEEN:

MS HAROLD

Applicant

AND:

MR RAYMOND

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 MARCH 2021

THE COURT ORDERS THAT:

1. Pursuant to s 66L of the Family Law Act 1975 the Father shall pay for the maintenance of the adult child Mr B born in 2002 (“Mr B”) the sum of $225.00 per week from 18 February 2021 until Mr B completes his full-time undergraduate studies at C University (“the adult child maintenance”).

2. The Father shall pay the adult child maintenance to the Mother’s account, account name Ms Harold, BSB … and account number …63 as follows:

(a) The sum of $1,253.50 on or before 4.00pm 29 March 2021 (being the adult child maintenance from 18 February 2021 to 29 March 2021); and

(b) The sum of $450.00 on 12 April 2021 and each fortnight thereafter.

3. The payment in Order 1 herein shall cease upon:

(a) Mr B commencing full-time employment (other than during the long summer university vacations at the end of years 1 and 2 of his undergraduate degree);

(b) Mr B deferring his studies or ceasing to study full-time;

(c) Mr B discontinuing his enrolment in his studies at C University; or

(d) Mr B completing the requirements of his studies at C University.

4. The payment referred to in Order 1 herein be varied on 1 February each calendar year (“the review date”) commencing in 2022 to such sum as shall be determined by multiplying the adult child maintenance being paid on the review date by the fraction N/C where “C” is the consumer price index for Canberra (all groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ending on the day 12 months prior to the review date namely 31 December and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date.

5. The Mother and/or Mr B shall provide the Father with written proof from C University at the commencement and conclusion of each semester confirming Mr B’s full-time enrolment in studies at C University.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The relevant law relating to an application for adult child maintenance is set out in Part VII, Division 7 of the Family Law Act as follows: s66F Who may apply for a child maintenance order(1)Unless subsection (2) applies, a child maintenance order in relation to a child may be applied for by:(a) or both of the child’s parents; or(b) the child; or(ba) (ba) a grandparent of the child; or(c)any other person concerned with the care, welfare or development of the child.(2) A child maintenance order in relation to a child who is under the guardianship, or in the care (however described), of a person under a child welfare law may only be applied for by:(a) the child; or(b) a parent of the child who has the daily care of the child; or(c) a relative of the child who has the daily care of the child; ora child welfare officer of the relevant State or Territory.s66G Court’s power to make child maintenance orderIn proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper.s66H Approach to be taken in proceedings for child maintenance orderIn proceedings for the making of a child maintenance order in relation to a child the court must:(a) consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J; and(b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 66K)s66J Matters to be taken into account in considering financial support necessary for maintenance of child(1) 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 section 66B; and(b) the proper needs of the child (this is expanded on in subsection (2)); and(c) the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).(2) In taking into account the proper needs of the child the court:(a) must have regard to:(i) the age of the child; and(ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and(iii) any special needs of the child; and(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must:(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and(b) disregard:(i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and(ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.(4) Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).s66K Matters to be taken into account in determining contribution that sohld be made by party etc(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:(a) the matters mentioned in sections 66B, 66C and 66D; and(b) the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and(c) the commitments of the party, or each of those parties, that are necessary to enable the party to support:(i) himself or herself; or(ii) any other child or another person that the person has a duty to maintain; and(d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:(a) any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and(b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:(a) by way of lump sum payment; or(b) by way of transfer or settlement of property; or(c) in any other way.(6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).s66L Children who are 18 or over(1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:(a) to enable the child to complete his or her education; or(b) because of a mental or physical disability of the child.The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:(a) to enable the child to complete his or her education; or(b) because of a mental or physical disability of the child.(3) A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.EVIDENCEThe Mother

Decision

Reasons for decision

Her Honour held that:“57 … section 66L (1) of the Act provides that 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 maintenance is necessary:(a) to enable the child to complete his or her education; or(b) because of mental or physical disability.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 18.58 Subsection 66L (2) of the Act provides that a Court must not make a child maintenance order that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of maintenance beyond that day is necessary:(a) to enable a child to complete his or her education; or(b) because of a mental or physical disability.59 In Paul & Paul (2012) FLC 93 – 505 the Full Court said:“[100] The legislation anticipates that teenagers and young adults undertaking tertiary study may require, quite legitimately, the financial assistance of their parents.[101] There is no presumption that any such payment is automatic, even if needed or desired. Quite to the contrary, it is for the applicant for an adult child maintenance order to persuade the Court that the provision of maintenance is necessary, here, to enable the child to complete his and her education.[102] The wife carries the onus of establishing the payments of maintenance by the husband are “necessary” to enable the children to complete their education.[103] Whilst we do not construe the word “necessary” as meaning completely indispensable it does seem to us that a base level of necessity does have to be established before the Court is able to exercise a general discretion about the reasonableness or otherwise of making the order.[104] The fact the Father voluntarily agreed to contribute to J’s support for the time being does not by itself establish that payment of maintenance either for J or K is “necessary” in order to allow them to complete their respective tertiary educations.[105] The capacity of the children to undertake employment is something to be taken into account….”60 In KEK & BK [2005] FMCAfam 250 FM Ryan (as she then was) discussed the meaning of the word “necessary.” The Court said in reference to section 66L of the Act:“[40] Necessity must be shown to establish an entitlement under this section. In In the Marriage of Gamble (1978) FLC 90-452, Fogarty J found that necessity constitutes more than being morally or socially desirable. Necessity is not restricted to absolute necessity according to In the Marriage of Tuck (1981) FLC 91-021. In Tuck the Full Court determined necessity by considering the needs of the child balanced with the reasonableness of the parties contributing, given their financial circumstances, along with any other relevant factors. This interpretation was reaffirmed in In the Marriage of Henderson (1989) FLC 92-011 in the context of the former section 66H (now 66L) of the Family Law Act.[41] Warnick J considers what is necessary in terms of completion of a child’s education in In the Marriage of Cosgrove (1996) FLC 92-700. His Honour concluded that maintenance is necessary for a child over the age of 18 “if the child reasonably needs support to enable the child to complete his or her education.” Warnick J held necessity does not mean maintenance must be “absolutely essential” but that it should involve the element of “reasonableness”. That is, there may be many ways in which a child could find the financial support to complete his or her education but when balancing the parent’s resources and the child’s potential resources, what is reasonable? A compelling approach to determining reasonableness can be found in Warnick J’s non-exhaustive list of factors to be considered by a court when exercising discretion in adult child maintenance cases. These factors are: •Whether the “nexus” of dependence between the child and parents had ceased and the application amounts to a “resurrection” of that dependence.•The period between the initial cessation of dependence (if any) and the application; •Whether the child had completed a course of education intended by the parents to outfit him/her for employment sufficient to support him/herself;•Other assistance, benefits or education which the child has received;•The ability of the child to complete the course in question;•The likelihood of the child completing the course in question;•The financial capacity of the child to maintain himself/herself to the completion of the course of education;•The financial circumstances of those persons responsible for support of the child (generally the parents).””CONCLUSION

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.