Harold & Raymond
[2021] FCCA 644
•22 March 2021
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Harold & Raymond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)Background
This is the Mother’s Application that pursuant to section 66L of the Family Law Act 1975 (Cth) (“the Family Law Act”), the Father pay adult child maintenance for the parties’ 18 year old son Mr B born in 2002 (“Mr B”).
The Mother was born in 1964 and is therefore aged 56. She is not currently in a relationship.
The Father was born in 1964 and is currently aged 57 years. He has re-partnered.
The parties were in a relatively brief relationship from 1998 to 2003. They separated when Mr B was only 12 months old.
The Mother is currently unemployed. It would appear she has not been engaged in any form of consistent full-time employment since Mr B’s birth. It is her evidence that she is now seeking employment having recently undertaken training to enhance her job prospects.
The Father is a professional who runs his own practice. He relocated his offices in 2019/2020 at some expense. In 2020, like most, he encountered the difficulties of sustaining his business during COVID. In his evidence, the Father indicated his business is returning to a more normal, pre-COVID status in 2021.
Very sadly, Mr B and the Father do not have a relationship. They have not seen each other for seven or eight years. When Mr B was 15, orders were made pursuant to an application brought on behalf of Mr B that enabled him to change his name to Mr B, removing his Father’s surname and his middle name which was that of his paternal grandfather.
It’s fair to say that the level of child support payable by the Father for Mr B has been a longstanding issue between the parties. There have been multiple proceedings, in the Family Court, as well as many reviews through the child support agency and appeals to the Administrative Appeals Tribunal.
In the most recent proceedings before the Administrative Appeals Tribunal, the Father’s income for child support for Mr B was set at $169,825 per annum from 1 January 2018. His level of child support from then until Mr B turned 18 was between $25,000 to $26,000 per year.
Orders were made by Judge Burchardt on 11 July 2018 pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) for the Father to pay half of Mr B’s orthodontic and spinal treatment.
The Father’s obligations to pay child support under the Assessment Act and the orders of the Federal Circuit Court ceased on Mr B’s 18th birthday in 2020.
On 8 February 2021, the Mother filed an Initiating Application seeking orders in the following terms:-
(1) That pursuant to section 66L of the Family Law Act 1975 (Cth), the Respondent Father Mr Raymond pay to the Applicant Mother Ms Harold for the maintenance of the child Mr B the sum of $500 a week from 3 December 2020
(2)That the first of such ongoing payments be made within 7 days from the date of this order directly to the Mother, and fortnightly thereafter to the Child Support Agency for the payment to the Mother until the sais child completes his tertiary education;
(3)That the arrears of maintenance accrued from 3 December 2020 be paid in one lump sum payment within one month of the date of this order;
(4)That the amount of maintenance provided for in paragraph 1 hereof be adjusted each year in accordance with the Consumer Price Index;
(5)That the Respondent Father pay for half of the costs of all of Mr B’s medical expenses and treatment until the completion of his tertiary education, including but not limited to dental, dermatology, physiotherapy, gastroenterology and spinal treatment and health insurance premiums and such other orders as the court deems appropriate.
The Mother sought the matter be listed urgently and it therefore came before the Registrar in the national COVID-19 list on 26 February 2021. The Registrar acceded to the Mother’s application for an urgent hearing and the matter came before me on Wednesday, 17 March 2021 where I heard it on a final basis.
The Father seeks the Mother’s Application be dismissed.
Having completed his Victorian Certificate of Education last year, Mr B was successful in obtaining a place at the C University doing a Bachelors degree. It is the Mother’s evidence this course is extremely difficult to gain entry to and it is not available other than through C University.
Mr B commenced his study at C University on 22 February 2021. He is living in campus accommodation for at least 2021 at the cost of $305 per week. The Mother deposes in her affidavit sworn 18 February 2021 that she and Mr B have been advised by the university that Mr B’s estimated costs of living, exclusive of his accommodation costs, will be approximately $795 a week. However, in annexure “A” to the Mother’s affidavit sworn on 18 February 2021, she estimates Mr B’s living costs exclusive of accommodation to be $522.20 per week. In the Mother’s financial statement sworn on 12 March 2021, she estimates those costs to be $712 a week.
LEGAL PRINCIPLES
In the matter of Tomasevic & Karavesky [2021] FCCA 172, a decision of Judge Tonkin made earlier this year, her Honour succinctly summarises the legal principles applicable to an adult child maintenance application at paragraphs 24 to 35 as follows:-
“24 The relevant law is set out at Part 7 Division 7 of the Family Law Act 1975 (Cth). Section 66L (1) of the Act 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.”
25 Section 66H of the Act sets out the approach to be taken in proceedings for child maintenance. The objects of the Act[1] include ensuring that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents and that parents share equitably in the support of their children. The Court may make such maintenance order as it thinks proper.
26 The Court is required to consider the financial support necessary for maintenance of the child and then determine the financial contributions towards that financial support to be made by each party.
27 Section 66J (1) of the Act sets out the matters (and no other matters) to be taken into account as follows:
(a) the matters mentioned in section 66B; and
(b) the proper needs of the child (subsection (2)); and
(c) the income, earning capacity, property and financial resources of the child (subsection (3)).
[1] Section 66B (1) and (2)
28 Section 66J (2) provides in taking into account the proper needs of the child the court
(a) (a) must have regard to:
the age of the child;
(i) the manner in which the child is being and in which the parents expected the child to be educated or trained; and
(ii) 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 publishes research in relation to maintenance of children.
29 Section 66J (3) of the Act provides that 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.
30 Section 66K of the Act provides that 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 the parties (subsection (2)); and
(c) the commitments of the party or each of the parties that are necessary to enable that 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 (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.
31 Subsection 66K (2) of the Act provides that 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 or under the control of or held for the benefit of the party that do not produce but are capable of producing income.
32 Subsection 66K (3) of the Act provides that 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 foregone by the parent or other person in providing that care.
33 Subsection 66K (4) of the Act provides that 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.
34 Subsection 66K (5) of the Act that 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 the parties to provide maintenance by way of periodic payments before considering the capacity of the party or each of the parties to provide maintenance:
(a) by way of a lump sum payment; or
(b) by way of transfer or settlement of property; or
(c) in any other way.
35 Subsection 66K (6) of the Act provides that subsections (2) and (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).”
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; or
a child welfare officer of the relevant State or Territory.
s66G Court’s power to make child maintenance order
In 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 order
In 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.
EVIDENCE
The Mother
The Mother relies on her affidavits sworn 18 February 2021 and 16 March 2021 and her financial statement sworn 18 February 2021.The Mother also gave vive voce evidence at the hearing of this matter.
It is the Mother’s evidence she is currently in receipt of Jobseeker and has been linked into services to increase her skills to enhance her job prospects. The Mother has not been in consistent employment since Mr B’s birth. She has undertaken administrative work on a casual contract basis including for the Employer D. She owns real estate but this property is subject to a mortgage. The property is tenanted and it is the Mother’s evidence the rent meets the expenses only and therefore does not provide her with an income stream. It is the Mother’s further evidence she cannot increase its current mortgage to assist with Mr B’s costs as the bank will not allow her to do so because of her lack of full time employment.
In her vive voce evidence, the Mother advised the court that Mr B has obtained part-time employment in Canberra at Employer E for 10 to 15 hours per week at the rate of $19 per hour. The Mother noted that this hourly rate was less than Mr B was paid in Melbourne when he was working. Mr B is also applying for part-time work in an office for one day a week as he can adjust his class commitments to have Fridays off. Mr B has also applied for Youth Allowance and Austudy, but this is as yet to be approved and, of course, is not a factor of relevance in my determination of this matter.
The Mother deposes to Mr B having some ongoing medical expenses. These include medication for acne, the need for physiotherapy because of a long-term back condition, issues in relation to stomach problems as well as his need to have his wisdom teeth removed at a cost of $2000.
The Mother describes Mr B as an ambitious, talented, intelligent young man who is working very hard. She believes he will achieve his degree and will perhaps even pursue post-graduate qualifications to ensure his future.
The Father
The Father relies on his affidavit and financial statement both sworn on 12 March 2021. He too gave vive voce evidence at the hearing.
The Father is angry that this application has been brought and questions why he is required to continue to provide support for a son with whom he has no relationship and who, in his mind, has rejected him.
It is the Father’s evidence he has paupered himself to meet his child support obligations over the last few years and particularly last year when, on his evidence, his income dropped to only $63,000 because of COVID-19. He did so as he believed his financial responsibilities for Mr B would finish upon Mr B’s 18th birthday.
It is the Father’s evidence he does not believe he will return to earning an income of $160,000 per annum as he does not wish to continue to work as hard as he was required to previously to generate that level of income. It is his evidence he is 57 and he wants a better work/life balance.
In addition to the Father’s sworn financial statement, the court also had tendered into evidence the Father’s 2020 tax return.
Annexure “E” of the Mother’s affidavit sworn 16 March 2021 contains a table in which she compares the Father’s financial circumstances on 15 February 2018, 4 March 2019 and 12 March 2021 based on sworn statements relied upon by the Father in proceedings before the Federal Circuit Court and the Administrative Appeals Tribunal.
Annexure “J” of the Mother’s affidavit sworn 16 March 2021 is part of the Father’s 2018 tax return.
The Father did not dispute the accuracy of the figures contained in Annexure “E” of the Mother’s affidavit sworn 16 March 2021 or the annexed tax return.
Perusal of these documents reveals the following:
·the Father’s gross business income in 2018 was $299,514 and, in 2020, was $280,784.
·The Father has reduced the mortgage on his only property in Town F from $186,000 to $100,000 in the period 2018 to 2020. On his evidence this property is used by he and his family and as an Airbnb.
·The Father is contributing between $450 to $480 per week into his superannuation.
·In his 2020 tax return, he took advantage of the COVID-19 allowances and wrote off a one-off depreciation for his new car and new office equipment of $50,000 for that year, thus reducing his taxable income by that amount.
·$6267 of interest on the loan on Town F was deducted from the income earned on that property.
When giving his vive voce evidence, the Father advised the court he has a drawdown facility on the mortgage on Town F of $55,000 representing what he agrees are payments greater than the minimum amount required by the bank on the mortgage on that property.
The Father also agreed he pays the maximum amount allowable, being $25,000 per annum, into his superannuation.
It is the Father’s evidence that, given he is 57, he is keen to accumulate as much superannuation as possible given it’s relatively low level of $120,000. He is also keen to pay out the mortgage on Town F as soon as possible so he can be mortgage free.
In response to questions about the earning capacity of his Town F property, the Father’s evidence is that the primary purpose of this property is to give he and his family the benefit of a country retreat and that it was never bought to be an income generator. While it is rented out as an Airbnb, its rental primarily meets its costs. In his 2020 tax return, the property showed rental income of $39,675 and expenses of $36,409 resulting in a modest profit of $3,266.
Father’s Capacity to Pay Adult Child Maintenance
Whilst in no way being critical of the Father’s decisions in relation to his financial management at this time in his life, I am satisfied he has the capacity to pay adult child maintenance as there is clearly considerable expenditure by him that is by choice and not necessity.
In KEK & BK, Judge Tonkin discussed at paragraphs 57 to 60 the requirement in section 66L that the court must be satisfied maintenance is necessary to enable a child over 18 to complete their education before making an order for adult child maintenance.
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
I am satisfied that the provision of maintenance is necessary to enable Mr B to undertake his undergraduate tertiary education.
I accept the Mother’s evidence that the course he has chosen is best undertaken at C University which means he needs to live in Canberra away from his home during the university year.
Whilst Mr B should and can obtain employment to contribute to his support and education, and, to his credit, has already done so, his is in a full time course in which he hopes to excel. He therefore cannot meet the totality of the costs necessary to enable him to complete his education.
His expenses other than the $305 per week for college accommodation, are not as yet fully known given he had not yet moved to Canberra at the time this Application was filed.
The expenses listed in annexure “A” of the Mother’s affidavit sworn 18 February 2021 seemed to me to be a reasonable estimate of Mr B’s living expenses. I have excluded from that list costs of entertainment, hobbies and holidays as they are not education related. I have also excluded the amount allowed for household expenses as someone in university accommodation does not incur those costs. I am therefore satisfied Mr B’s weekly expenses whilst living in Canberra including the costs of his accommodation is $720.
The C University website shows in 2021 semester 1 runs from 6 February to 19 June and semester 2 runs from 27 July to 29 October, a total of 35 weeks.
It is not unreasonable to expect Mr B to return home outside of his university semesters. He will not be required to pay the accommodation costs at the college when he is not living there.
It is also reasonable to expect Mr B to increase his hours of work over the lengthy summer break and to be able to better contribute to his living costs during that period.
The Mother is seeking an order for the Father to pay adult child maintenance in the sum of $500 per week. The amount the Father would pay if this figure was ordered is the entirety of Mr B’s costs for the 35 weeks he would be at university in Canberra. If he stays in Canberra during the mid-semester break, the figure of $500 per week would result in the Father paying almost all of Mr B’s costs whilst in Canberra.
I accept when Mr B is at home from university there will still be costs for his support, but, as noted, he should contribute to those costs.
As was noted earlier in this judgment section 66J and 66K set out the matters to be taken into account when determining the level of adult child support to be paid by a child’s parents. The relevant factors in this matter are:-
·the capacity of Mr B to earn or derive income; and
·the income earning capacity and financial resources of Mr B’s parents.
I've already noted that Mr B, to his credit, is working part-time. He clearly has the capacity to earn some income and contribute to his own support. From a comment made by the Mother, he was working in Melbourne prior to starting at C University as she told the Court his hourly rates were higher in Melbourne than he is currently receiving in Canberra.
My finding that the Father has the capacity to contribute to the cost of Mr B’s tertiary education is set out in paragraph 37 of this judgment. I have found the Father has a capacity to contribute to the cost of Mr B’s tertiary education.
Whilst the Mother is currently on Jobseeker, I am satisfied she has the capacity to work full time and earn an income with which to support herself and to contribute to Mr B’s support.
The Mother is also seeking an order that the Father pay half the costs of Mr B’s medical expenses until the completion of his tertiary education including but not limited to dental, dermatology, physiotherapy, gastroenterology and spinal treatment and health insurance premiums.
As was explained to the Mother, the provisions of the Assessment Act cease to have application upon a child turning 18. Orders of the type sought by her are not available to the court.
The Mother argues, however, that Mr B’s health needs being met are necessary to enable him to complete his education and, as such, orders should be made by the court as sought by her or, at the least, the amount of periodic payments made by the Father should include an amount that reflects Mr B’s medical needs.
The Father cannot see why he should support a child who he has no relationship with and who has so overtly rejected him. He argues he has paid extraordinarily high amounts of support for Mr B, particularly in the last three years, and it’s time for the Mother to get a job and support Mr B and for Mr B to be responsible for his own upkeep.
The Mother seeks that the adult child maintenance be ordered to be paid to her and that she will on forward it to Mr B. When asked by the court why any adult child maintenance should not be paid directly to Mr B, it is her evidence, which the court accepts, that if the court orders payment to her, the Child Support Agency will collect those moneys on her behalf but will not do so if the court orders direct payment to Mr B.
The Father requests that if he is ordered to pay adult child maintenance, he do so directly to the provider. This is because, to quote him:-
·“the Mother will keep the money just for herself”
·“how do I know Mr B is even enrolled at university”
·“I don’t trust either the Mother or Mr B to tell me if Mr B defers or leaves his course.”
That there is no relationship between the Father and Mr B, whilst very sad for both, is not a relevant factor under the Family Law Act when determining whether an order for adult child maintenance should be made. For example, in the matter of Tomasevic & Karavesky referred to in this judgment, the Father has never met the child he is ordered to pay maintenance for.
Having determined there is a necessity for these parties to pay maintenance so that Mr B can complete his education, and having considered the particular circumstances of this case and, in particular:-
·that Mr B’s reasonable living expenses when in Canberra including accommodation are $720 per week;
·that Mr B will be in Canberra for approximately 35-40 weeks a year maximum and therefore his living expenses of $720 per week are only for that period;
·Mr B’s capacity to contribute to his own expenses when in Canberra by working part-time and in Melbourne working full time in the long summer vacation; and
·Both parties should and can contribute to Mr B’s expenses and have the earning capacity to do so
I have determined the Father should pay $225 per week by way of his contribution to Mr B’s living expenses.
This figure reflects what I am satisfied is a proper contribution by the Father to the costs of Mr B’s accommodation and his weekly living expenses. The figure includes a contribution of $37.50 or $1,950 per annum to Mr B’s medical, dental, physiotherapy and pharmaceutical costs. It also reflects the Father’s contribution to Mr B’s accommodation and living expenses when in Melbourne.
Given the Mother’s evidence regarding collection by the Child Support Agency, the order will provide such an amount be paid to the account nominated by the Mother.
The Mother seeks this order be backdated to 3 December 2021. The court cannot make an order that is backdated to a date earlier than when the Initiating Application is filed which, in this case, was 18 February 2021.
Thus, an order will be made for the Father to pay the sum of $1253 into the Mother’s account by 29 March 2020 and, thereafter, $450 per fortnight commencing on 12 April 2021 until Mr B completes his full time undergraduate degree at C University.
To assuage the Father’s concern that he will not be notified in the event Mr B stops undertaking full time tertiary studies, the orders will require the Mother and Mr B to provide the Father with written proof from C University at the commencement and conclusion of each semester that Mr B continues to be fully engaged in his studies.
An order will also be made that the amount ordered will be adjusted on 1 January each year pursuant to the Consumer Price Index in Canberra.
Finally and to avoid any further litigation, the orders will enunciate that the Father’s responsibility for adult child maintenance for Mr B is only if Mr B is undertaking full time undergraduate tertiary studies and will cease if Mr B obtains full-time employment (other than during his long summer holidays), or if Mr B defers or only studies part-time. Any post-graduate studies will be at Mr B’s discretion and expense.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 1 April 2021
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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Remedies
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Standing
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