Heath and Yarram

[2014] FCCA 1033

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEATH & YARRAM [2014] FCCA 1033

Catchwords:
FAMILY LAW – Adult Child Maintenance application – applicant mother’s financial position unclear – father well off – daughter in good health – whether maintenance necessary to enable child to complete education.

Legislation:  
Family Act 1975, s.66L

Applicant: MR HEATH

Respondent: MS YARRAM

File Number: MLC 9712 of 2013

Judgment of: Judge Burchardt

Hearing dates: 25 March 2014 and 5 May 2014

Date of Last Submission: 7 May 2014

Delivered at: Melbourne

Delivered on: 30 May 2014

REPRESENTATION

Counsel for the Applicant: Mr A. Cooper

Solicitors for the Applicant: Randles, Cooper & Co. Pty Ltd

Counsel for the Respondent: In person

ORDERS

1. The father pay adult child maintenance of $105 per week to his daughter, X, until 31 December 2016. 

2. The daughter, X, provide proof of academic results, and continuing enrolment at (omitted) TAFE, by 28 February 2015 and again by 28 February 2016 to the father, MR HEATH. 

3. That X notify MR HEATH forthwith in the event that she ceases her academic studies prior to 31 December 2016. 

IT IS NOTED that publication of this judgment under the pseudonym Heath & Yarram is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 9712 of 2013

MR HEATH

Applicant

And

MS YARRAM

Respondent

REASONS FOR JUDGMENT

Introductory

1. The substantive applicant in this case is the respondent mother.  She seeks that the Court order the applicant father to pay $400 per week in Adult Child Maintenance in respect of the parties’ daughter, X, born (omitted) 1996. 

2. For the reasons that follow, I am going to order that the father pay $105 a week adult child maintenance until the conclusion of his daughter’s three year course at the (omitted) TAFE. 

A Brief Overview of the Proceeding

1. The parties separated a very long time ago and entered into orders before the Family Court of Australia in October 2000. 

2. On 8 November 2013 the applicant father sought orders in effect, as he put it, to enforce the 2000 orders by compelling the respondent to transfer to him an accessory unit related to a property the subject of the earlier orders. 

3. The mother’s Response to the Initiating Application and Affidavit filed 2 December 2013 made numerous assertions about the accessory unit, all of which can be paraphrased, admittedly rather broadly, as amounting to an assertion that the accessory unit either belonged to X or ought to be applied to her benefit. 

4. On 10 December 2013 the respondent mother filed an Affidavit deposing that her daughter did not want the accessory unit and she had therefore transferred the required title to the applicant father and that “this case has gone.” 

5. Notwithstanding this on 12 December 2013 the respondent mother filed an Amended Response to Initiating Application by which she sought, relevantly, that the father pay Adult Child Maintenance until 31 December 2019 “That is until X gets (omitted) Degrees, and until she gets a job.”  The Amended Response also sought that “Fine the Applicant Husband up to $6,600 pay to X, according to the Family Court Order, which was made on 17 July 2003.  Applicant Husband contravened the Family Court Order.  He did not see his daughter, X, in 3 years.” 

6. The Application for the imposition of a fine was not pursued at final hearing.  The respondent mother expressly clarified that the only matter now in dispute is Adult Child Maintenance, although her complaints about the father not seeing his daughter remain part of the case. 

7. Accordingly, the only matter before the Court is the question as to whether the Court should order the applicant father to pay Adult Child Maintenance and if so in what amount?  As earlier indicated, the respondent mother seeks that Child Support payments continue in effect at the $1,678.83 per month that obtained until X turned 18, whereas the applicant father seeks to pay $105 per week. 

The Legislation

1. The terms of s.66L of the Family Law Act 1975 (“the Act”) make it clear that the Court is relatively restricted, on one view, as to when it may make an order in relation to Child Support. Section 66L(1) reads:

   “(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. Both parties agree that X is in excellent health and therefore the only issue before the Court is whether the Court is satisfied that the provision of the Maintenance sought is necessary to enable X to complete her education.  If the Court is not so satisfied the Court must not make an order. 

The materials before the Court the mother’s affidavit filed 12 December 2013

1. The respondent mother deposed that the parties married on (omitted) 1990 (the husband’s first affidavit filed 8 November 2013 dates the marriage as (omitted) 1992) and neither side has tendered the Marriage Certificate.  The Affidavit deposes that X said, in respect of the accessory unit, “I don’t care, he want (sic) it, give it to him.”  There are various complaints as to wrongdoing by both the applicant and his solicitor, Mr Cooper, but in the circumstances I do not regard these as being now of any significance. 

2. The Affidavit went on to set out the previous extant rate of Adult Child Maintenance paid until X was 18, the applicant father’s alleged breach of the 2003 order, the father’s financial circumstances, including an alleged income of $180,000 per year, and the mother’s very reduced financial circumstances including a taxable income for 2013 of $12,301.  The respondent mother deposed that she owned a property in Property G, (which it is clear is unencumbered) and that she is not working because she was looking after her father full-time, he being ill with leukaemia. 

3. The respondent mother’s Financial Statement also filed on 12 December 2013 sets out an income of $230 per week, being a Centrelink payment, a contribution from the mother’s husband also in the sum of $230 per week, ownership of a car worth $50,000 (the mother’s share being 50 per cent). 

4. The figures set out at Part N of the Financial Statement would support expenditure of $400 in respect of X of which $170 is food, and $30 relates to petrol and car maintenance.  There is in fact no information to suggest whether or not X actually has a car or whether she contributes to the costs of the mother’s household. 

The father’s affidavit filed 24 February 2014

1. The father’s Affidavit asserts that the mother is very well qualified academically and goes on to make a number of points which are really in substance by way of submissions.  He surmises as to the ownership of a property at Property B and to the fact that the Property G property is unencumbered.  The Affidavit goes on to comment as to the value of the car.  The applicant then gives details of his own financial situation which may be summarised as saying that he has two investment properties which are very heavily encumbered, that he has to pay $2,000 a month to sponsor his own parents in Australia and that he is presently supporting two children with his current wife, with one child attending primary school and the other attending full time care. 

2. The applicant father went on to estimate X’s living costs at $350 a week given that she is living rent free and sets out his offer of $105 per week.  The father’s Financial Statement adds but little to this picture save that it is clear that the school fees paid on behalf of his child at (omitted) Grammar are very high and that his wife contributes approximately $900 a week to the family household. 

The evidence before the Court

1. The mother made an opening address.  She confirmed she sought the orders in her Amended Response.  She explained that she had not had time to read the father’s Affidavit until the previous evening as she had been distressed by the hospitalisation in January and death on 22 February 2014 of her father.  She emphasised that Maintenance would be paid to X’s account and not hers.  She confirmed that X is engaged in a three-year course at the (omitted) TAFE studying (omitted) and other matters and tendered a certificate of enrolment as exhibit A2. 

2. Although she was a (occupation omitted) and loved her job the mother said she cannot now work in that capacity as she has to look after her ailing mother who has Alzheimer’s disease.  She confirmed that she is presently on a carer’s allowance.  The mother confirmed that the property at Property B is in her father’s name so far as the registered ownership is concerned.  She confirmed that only the Property G property is owned by her. 

3. In relation to the car mentioned by the applicant father, the respondent mother confirmed that she has an older daughter, Y, who works at (omitted).  Y is married and according to the mother needs assistance with her children and lives in (omitted).  Y bought the mother the car as joint owners (exhibit A6 is the purchase form - it is not, however, the car registration and does not establish therefore who is the registered owner). 

4. The respondent mother was critical of the applicant father’s alleged prior endeavours to minimise or evade his Child Support obligations. 

5. When called to give evidence under cross-examination the respondent mother confirmed her significant educational qualifications but asserted that her work in Australia had been predominantly as a (occupation omitted).  She was pressed as to whether a proposal as to Child Support had been put to her before X turned 18 but denied this. 

6. The respondent mother confirmed that X is at the (omitted) TAFE on a three year course doing a (omitted) Degree.  The mother was cross-examined about the living arrangements for her extended family, and it is clear that there has been some moving about.  The relevant upshot is that the mother is living with her own mother in Property G and X is living with the mother’s husband in Property B.  The Property B property is owned by X’s grandfather and was bought in about 2006, allegedly with contributions from the mother’s younger sister. 

7. The respondent mother was cross-examined about the Mercedes Benz car recently purchased.  The mother said that this was purchased for some $60,000 (as is clear from the exhibited purchase document, exhibit A6).  The mother was cross-examined about her relationship with the father and it is sufficient to say that it is very clear that the relationship has been bad.  Most unusually, the mother is the subject of an indefinite Intervention Order against her. 

8. The respondent mother was cross-examined about the extent to which the applicant father had seen or been able to interact with X and became, perhaps unsurprisingly, somewhat combative and emotional during this process.  She was not aware that the applicant father had invited X to go to (omitted), nor that he had provided X an iPad for her 18^th birthday. 

9. I would interpolate and say it is highly probable that X avoids alerting her mother to any contact with her father because of the mother’s disapproval, strong as it still is, of the father generally. 

10. When it was put to the respondent mother that X has very little in the way of expenses at the moment because she is living rent free, the mother responded,

    “What about her shares for paying utilities and transport costs – she has to buy books and stationery.”

11. The respondent mother referred to a tuition fee of $6,696 but conceded that this is a HECS debt that X is not presently required to pay. 

12. Under further cross-examination the respondent mother revealed that X is studying at (omitted) TAFE for three days per week.  When challenged as to whether X could get a part-time job, the mother said that she wants X to find part-time work but not in her first year which is a difficult transition period. 

13. The respondent mother confirmed that X was living in Property G prior to Christmas but is now living in Property B because there is not sufficient space in the Property G unit.  The respondent mother said that X needs money to buy clothes and shoes.  In re-examination the respondent mother confirmed that her elder daughter married in 2011 and that after she had a child she wanted help.  That was why the car was bought.  The respondent mother said it was a gift and that her name had been included in the contract. 

The Evidence of the Father

1. The applicant father confirmed that he is employed by (omitted) in (omitted) (he appears to be employed at the (omitted)).  In evidence-in-chief he gave evidence that he had always paid his Child Support obligations on time by automatic deduction.  He gave details of his contact with X through gifts and through meeting her at stations or his parents’ home near (omitted).  He confirmed that he has to give his own parents $2,000 per month and that he pays for their rent and health care.  They are not eligible for the receipt of State benefits. 

2. He confirmed that his elder child is at (omitted) Grammar with fees of approximately $16,000 per year.  He confirmed that he would pay $105 per week until X finishes her education, provided he had proof that she was undertaking it. 

3. Cross-examination was somewhat fraught.  The interpersonal dynamic between the parties is bad and the way in which the respondent mother put her questions to the applicant father was extremely accusatory and aggressive.  It is not perhaps appropriate to say too much about the answers given under cross-examination which, in my view, did more to indicate the very poor interpersonal dynamic between the parties than anything else.  It was put strenuously to the applicant father that X has to pay for food, transportation, cosmetics, books, stationery, telephone, internet costs and socialising, to which he replied that she could work part-time. 

4. The tenor of what the applicant father had to say can be summarised as being to the effect that while he acknowledges X as his daughter, she is now an adult.  The father expects X to contribute to her own cost of living. 

5. One matter I should note is that he had invited X to come to (omitted) and offered her the ticket but she would not come.  The applicant father expressed the view that X did not go because she would have trouble with her mother if she did. 

6. It should be noted that the applicant father’s answers to questions about his financial circumstances, about which he was of course pressed, did not resile from his affidavit material and were given in a fashion I found responsive and convincing. 

Findings as to the Facts

1. The applicant father’s financial situation is very much better than that of the respondent mother.  He has a very substantial income stream and his wife, who apparently has reduced her work and pay slightly since the birth of their one year old child, nonetheless has a significant income of at least $40,000 to contribute to the household.  The applicant father’s income is, on his Financial Statement, in excess of $180,000.  While it is true that he has very significant expenses in relation to his negatively geared properties, and he has to contribute some $2,000 a month to his parents, the fact that he is able to pay some $16,000 a year in tuition fees for an eight year old child speaks for itself.  In a broad general way he is not short of money. 

2. The respondent mother’s position is much more difficult to work out.  She owns a property outright and has a very expensive almost brand new car.  Her father owns the property in Property B (I am told, although the title has not been tendered) but it seems that the respondent mother and her family have used the two properties interchangeably from time-to-time.  Presumably, with the demise of her father recently, the Property B property will pass under her father’s will or intestacy.  Given that her mother lives in the Property G property, and the respondent mother’s husband and X live in the Property B property, it seems to be more probable than otherwise that the respondent mother has active control over the disposition of that property also.  Her husband and X do not pay rent and the property is clearly unencumbered. 

3. The respondent mother’s household cannot be wholly comingled with that of her husband (given that they live in different properties), and it is difficult to see how somebody on an income of only $230 per week could be paying for the petrol and servicing of a Mercedes car, let alone otherwise running a household as well.  One way or the other, it seems to me that the respondent mother must have greater financial resources than she has disclosed.  It is not, however, at all possible to say how much greater such resources might be. 

4. X is living rent free and the assertion that she is required to contribute to the costs of the household in which she lives is, in my view, far fetched. The only evidence (apart from material filed after the hearing, without leave, and not the subject of evidence in Court), I have been given are the estimates put by the respondent mother in her Financial Statement. It should be noted, however, that X does not live with her mother and may not have been doing so at the time the Financial Statement was sworn (X was living in Property G until “before Christmas” and the Financial Statement was sworn on 12 December 2013). The evidentiary position could scarcely be less satisfactory.

5. What I do know is that X is in good health and attends (omitted) TAFE for no more than three days a week, obviously only during academic term time.  The applicant father is certainly correct to say that X could obtain a part-time job.  Although each side have their own estimate, the applicant father’s estimate of X’s expenses was $350 and the respondent mother’s $400 (expanded to $500 during the trial itself). 

Should the Court make an order for Adult Child Maintenance?

1. It is, of course, for the applicant (relevantly for these purposes, the respondent mother) to convince the Court that an order for Adult Child Maintenance should be made.  The Court cannot do so unless satisfied that the provision of maintenance is necessary to enable X to complete her education.  In one sense this question has already been implicitly answered because the applicant father is offering to pay $105 per week.  That offer, however, is not decisive as to the factual question I am asked to decide.  

2. Given the lack of precision about critical matters to do with X’s actual expenditure and the respondent mother’s true financial position, it is no easy matter to reach firm conclusions.  Doing the best I can in this evidentiary wasteland, I am of the view that the applicant father’s proposal is the one to which I should accede.  It is, in a sense, a concession against interest that I am entitled to pay regard to, notwithstanding the reservations expressed above. 

3. Assuming that the $400 asserted in the respondent mother’s Financial Statement is not too wide off the mark, it is not unreasonable to suggest that X obtain employment to make up such shortfall as there may be, even if, as the respondent mother would doubtless contend, the respondent mother is unable herself to contribute.

4. I am not persuaded that this ought not occur now, even though the first year is a time of some turbulence in the life of many students.  Indeed, one might feel that for many students the requirement to obtain some measure of employment would be a grounding and enlivening experience, in any event.

5. It should be emphasised that it is for the respondent mother to prove her case.  The evidentiary shortfalls to which I have referred would strongly incline me to the view that I am not satisfied that the money the respondent mother now seeks is indeed necessary for X to finish her education.  Nonetheless and for the reasons given, I think that there should be an order that the applicant father pay $105 per week Adult Child Maintenance until X's (omitted) Degree is finished in three years time.  I will make the ancillary order sought to require details of her continuing results to be made available to her father to satisfy him that she is indeed still enrolled. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  30 May 2014