J and J
[2000] FMCAfam 67
•14 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & J | [2000] FMCA fam 67 |
| CHILD SUPPORT – Children over 18 years – s66J FLA |
| Applicant: | L T J |
| Respondent: | C P J |
| File No: | ZM 000374 of 2000 |
| Delivered on: | 14 November 2000 |
| Delivered at: | Melbourne |
| Hearing Date: | 30 October 2000 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Edmunds |
| Counsel for the Respondent: | Mr Hoult |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 000374 of 2000
| L T J |
Applicant
And
| C P J |
Respondent
REASONS FOR JUDGMENT
Issue for determination
The matter to be determined by the Court was the payment of Adult Child Maintenance pursuant to Section 66L of the Family Law Act 1975.
The wife sought that the husband pay for the maintenance of two adult daughters a total sum of $300.00 per week until each child respectively completed their tertiary studies. The husband in response conceded that a maintenance order was appropriate with respect to each of his two daughters, but differed from the wife in respect of the quantum which he sought to pay for the said children.
There was agreement between the parties that each of the husband and wife contribute equally to the maintenance of their daughters to enable them to complete their education.
Wife’s application
Specifically, the wife sought that the husband pay to the wife the sum of $150.00 per week for the maintenance of each of the children, A J J born 8 August 1979 and S L J born 19 October 1981, being a total of $300.00 per week, until each such child completes her tertiary studies.
The wife made an oral Application that the payment of maintenance by the husband be retrospective to commence in June 2000 being the time at which he ceased making payments. The making of that oral Application was not opposed by Counsel for the husband although the Application itself was. The wife’s Form 12 Application was issued on the 26 of September 2000 and the matter then proceeded on the
30 October 2000.
Husband’s response
In his response filed 23 October 2000 the husband sought that he pay the sum of $150.00 per fortnight for the maintenance of each of the children being a total of $300.00 per fortnight (as opposed to the wife’s claimed amount of $300.00 per week) such payment to cease upon the completion of the first full-time tertiary course undertaken by each child and be suspended during any period in which the husband was unemployed or in receipt of government benefits.
Background
The parties commenced cohabitation in January 1973 and married on the 14 November 1973. They separated on 27 December 1998 and on the
2 July 2000 the Decree Nisi of Dissolution of Marriage became Absolute.There are two children of the marriage and both children are the subject of this Application. They are A J J born 8 August 1979 who is now aged 21 years and S L J born 19 October 1981 who is now aged 19 years. Both children reside with the wife and have contact with their father as agreed. The wife is residing with her new partner, Mr C D and A and S at 24 A Drive, G W in the State of Victoria. The wife is employed as a Secretary and has recently obtained full-time employment in receipt of approximately $41,000 per annum.
The husband is residing at 27 K Court, B E in the State of Victoria although in his Affidavit filed on the 20 October 2000 he gave his place of residence as being 24 S Avenue, G W, which is the home of his parents. He is employed as a Manager with B C Office Products. The husband is in receipt of salary of $90,000 per annum, together with a car allowance of $11,000 per annum. He has been in receipt of such salary and car allowance since April 1999 in his position as National Manager of Education. He is in the process of reapplying for his position. He is at the date of this hearing however gainfully employed in receipt of an income as set out in his response filed 23 October 2000 and in the event that he was made redundant and not successful in reapplying for his position he would be likely to receive a redundancy package, although no evidence as to the details pertaining to that were given by the husband in the course of the Proceedings.
On the 30 May 2000, Orders were made in the Family Court of Australia at Melbourne by consent between the husband and wife resolving property and spousal maintenance matters between them.
Prior to the resolution of property matters between the parties they had entered into a Heads of Agreement dated 11 June 1999 (not sought to be enforced by either party) wherein they had agreed that as soon as practicable the parties execute a child support agreement for the benefit of their two daughters and that that agreement provide that the husband pay for the benefit of each child the sum of $600.00 per month with the first payment to be on or before the 25 June 1999. The payment was to be varied by the CPI Index percentage as at the 30 June 2000 and annually thereafter. There were certain circumstances set out in which payments would cease. The wife was to instruct the child support agency to collect such monies. The parties did act in accordance with this Heads of Agreement in that the husband made a payment of $1200.00 per month for the benefit of both daughters until May 2000 when the Property Orders were entered into. Thereafter, the husband has made no payment. The parties did not execute a Child Support Agreement and although there was some correspondence between the parties, the wife did not issue her Application seeking child maintenance until September 2000.
Proceedings
The wife relies upon the following:
a)Her Form 12 Application for maintenance filed on 26 September 2000;
b)Her supporting Affidavit filed 26 September 2000;
c)Affidavit sworn by A J J on 27 October 2000.
The husband relies on the following documents:-
a)His Form 12B Response to Application for Maintenance filed on 23 October 2000;
b)His Affidavit filed 23 October 2000.
Evidence
Findings of fact on disputed issues are made on the balance of probabilities. In these reasons, statements of fact should be taken as findings of fact.
There is agreement between the parties as to the following matters:
a)That the provision of maintenance by the husband to the wife for the support of each of the parties’ daughters A and S was necessary to enable them to complete their education;
b)That it was appropriate given the earning capacity of the parents and objects of the Family Law Act1975 that each of the parents share equally in the support of their daughters;
c)That it was appropriate that the husband make payments by way of periodic amounts and that the necessary expenses of the children did not include an amount claimed for :
i)Cigarettes - $30.00;
ii)Dancing - $12.00;
iii)Entertainment - $60.00.
Making a total of $102.00 (the above was also conceded by A in evidence).
d)That A would complete her studies in November 2001, she currently undertaking a Bachelor of Business and Bachelor of Communications at M University on the B, C and C Campuses;
e)That S was undertaking a Bachelor of Social Science and in her first year. She probably had 3 years following this year to complete the course although the course was normally a 3-year course and ordinarily she would have concluded it in November 2002.
Evidence of A
A gave her evidence in a straightforward manner. She clearly has worked hard to earn income, applied herself to her studies and left herself little time for anything else. Indeed, she was completing a 4 year Degree Course in 3 years by taking extra subjects in each year and by attending Summer School. In the last Financial Year she worked as a waitress at the W H Hotel and was in receipt of income to 30 June 2000 of $14,404.00 gross or $12,175.50 net making a weekly amount of $234.00 approximately. This was in excess of the amount to which she had deposed namely $190.00 per week and her income in the month of July, August and September of this year averaged approximately $131.00 per week net. In addition, however she has taken a second job with RJ L, Accountant and is in receipt of $112.00 per week making a total weekly income presently of $243.00. Her receipt of the $112.00 each week however is dependent upon her working each Thursday between 9.00am and 5.00pm which does not occur during school holidays and around exam time.
I accept that the work in which A is engaged is casual and part-time and therefore there is some uncertainty about her ongoing income. She gave evidence and I have no reason to doubt her that she suffered a neck injury and that that neck injury causes her some restriction in her employment. Over a 12-month period, A has been able to sustain an income of approximately $234.00 each week with significant cost and difficulty to her. She was working approximately 40 hours a week at times; took holidays of 4 days duration in January and survived on 4 hours sleep before attending her studies at the University. I accept that it is not possible for A to continue to work these sort of hours by way of earning income and outside the hours to which she devotes to her studies. She has managed to accumulate savings and as at 27 October 2000 had an amount of $1,009.04 in one Savings account and $172.00 in another.
A owns a motor vehicle, which was purchased in part by her parents prior to their separation and in relation to which A is responsible for the ongoing maintenance and running costs. Her parents clearly saw it as something necessary for the furtherance of her studies in providing transportation between B, C and C campuses and I find this is a necessary expense. Likewise the expenses claimed in relation to the Internet relate to the furtherance of the girl’s studies and the medical and dental health insurance and costs relate in part to physiotherapy and pain relief from time to time for A.
Mrs J’s evidence was that she had helped her younger daughter S purchase a car recently as S had, up until then, been driving her car and had damaged same. Her evidence was conflicting as to the savings held by S and applied towards the purchase of the Motor Vehicle with a total purchase price of $6,750.00. The inclusion of the costs of running and maintaining S’s motor vehicle increased the necessary expenditure as stated by the Wife in her Form 12 Application but decreased in part the fares stated. Mrs J gave evidence as to an increase in expenditure on lunches to $30.00, Internet being 2 connections to $24.00, medical and dental increased to $40.00 for the two girls and an increase in taxation making a total expenditure for the children of $790.00.
S has suffered from glandular fever and chronic fatigue syndrome in this year. This has hampered the pursuit of her studies and on Mrs J’s evidence deemed necessary the provision of a motor vehicle for S so that she would not be required to spend some hours on public transport each day.
In all I accept that the necessary expenses for the two daughters are in the total sum of $790.00 per week but that from that must be deducted the $102.00 referred to earlier making a total sum of $688. If each of the husband and wife are to bear these expenses equally then the husband is to be responsible for one half of the weekly amount, namely $344.00 each week.
However, the girls are in receipt of their own income and the question for the Court is whether the girl’s income should be applied to meet their necessary weekly expenditure and if so should the calculation be that their expenses are $790.00 regardless of the nature of those expenses and from that amount should be deducted the sum of $400.00 per week (being approximately the amount received by the girls by way of income earnt) leaving an amount of $390.00 for which each of the parents were equally responsible or alternatively, whether from the sum of $790.00 should be deducted the sum of $102.00 referred to in paragraph 15 above leaving an amount of $688.00 from which should be deducted the $400.00 of income to leave an amount of $288.00. That is, should the husband pay to the wife an amount of $195.00 per week or $144.00 per week.
Husband’s evidence
The husband has recently purchased a home in which he is residing being 27 K Court, E B. In addition, he has a rental property in O Street, G W and a holiday home at 53 N Drive, R. He has paid no maintenance for the support of his adult children since June 2000. He considers his financial position precarious. He has however, $17,757.00 in a Term Deposit; his evidence as to the R property was that its general state of repair is so good that it is not possible to find sufficiently good tenants and thus he derives no income from it despite it being encumbered by a mortgage of $80,000 - $85,000 currently. I can only conclude that presently he has no pressing need for rental income.
Although the husband has monies in a Term Deposit account, he deposed to spending $77.00 a month on credit card repayments wherein he indicated that his credit card balances total $11,160.00. He did not think it desirable to pay off that debt with his capital.
The husband’s evidence as to the O Street property was that it was almost revenue neutral leaving mortgage repayments with respect to E B and R considerably less than that claimed in his Form 12B.
The husband’s Statement of Expenditure of repairs of $120.00 a week in his Form 12B was a little at odds with his evidence wherein repairs relating only to R (the property in which he is residing having been so recently purchased) were $580.00 for a septic tank and other expenses covered by an insurance claim. This does not correlate with a repair expenditure of $120.00 per week. Likewise, his claim of expenditure at $65.00 a week on entertainment included his payment on occasion for his partner. Furthermore, he is in possession of a motor boat but his evidence was that he has not used it since April 2000 when the motor ceased and therefore although he deposed to fuel costs there is presently no fuel cost.
The Wife’s position in the running of her case was that she had now secured full-time employment and that regardless of a one half share being $195.00 per week or $144.00 per week she was willing to meet that cost. The husband’s position likewise was that it should be one of those two figures (namely the lower) or somewhere in between if the Court so determined but his evidence was also that he was in an impoverished situation which on the evidence I do not accept. I find that the husband does have a similar capacity to the wife to meet his one half of the necessary expenses whether they be $195.00 or $144.00 per week for each of the husband and wife. I reiterate that the husband’s income more than doubles that of the wife.
The law
Section 66C of the Family Law Act1975 imposes a primary duty on both parents to maintain their children and fortunately in this case each of the parents have conceded that they should be equally responsible for the support of their two adult daughters.
The grounds of Section 66L of the Family Law Act1975 are made out that in both parents concede that maintenance is necessary for their two daughters to enable them to complete their tertiary education. The Wife, being the parent with whom the two daughters are residing, has made Application on behalf of the parties’ daughters for child maintenance where the children are over 18 years. In considering the financial support necessary for the maintenance of a child Section 66J sets out the relevant matters to be considered.
The first step in determining the quantum of adult child maintenance to be paid is to assess the proper needs of each of the parties’ daughters. Although the children and parents concede that the daughters can provide out of their own income for some part of their, I am of the view that those modest needs should be met out of the girls income but I consider it reasonable that the girl’s income be reduced in the same sum (see Section 66J(2)(a)(i)), such that each of the husband and wife contribute $195.00 to the support of their daughters.
I find also that the income earnt by both but A, in particular, is fluctuating and dependent upon not only their willingness but ability to work such extended hours whilst still full-time students. It seems appropriate that their Mother and Father assist by meeting their proper needs and thereby not compelling A to work a 40-hour week in some instances while she remains a full-time student. The expenses claimed were reasonable and not challenged save for the three items as agreed upon and referred to at the commencement of this judgment namely cigarettes, entertainment and dancing (which are paid by the girls and shall not be expended in instances where the girls do not earn sufficient of their own income) and a challenge by the husband as to the provision of a motor vehicle for each girl. I find that given the significant distances travelled and the time taken on public transport to complete such travel that it is a necessary provision in their lives, and that they themselves are hard working girls who assist in the provision of a vehicle to each of them by their own efforts and receipt of income.
Conclusion
I find that the provision of support by both parents is necessary to enable each of their daughters to complete their tertiary education. I find that support should extend to the end of 2001 for A at which time she shall have completed her tertiary education, and the end of 2002 for S who should be part way through hers. I do not believe it appropriate to extend the provision of support for S beyond that time as on the evidence it was not clear to me that S will in fact continue with her education. She is already a year behind and as a result of having suffered from ill-health on her mother’s evidence, her tertiary future is less certain. If she proceeds in a full-time capacity in the years to come she should have the support of both her parents. I am of the view however that there is not sufficient evidence before me that the provision of maintenance will be necessary for S to complete her tertiary education beyond the due date for completion. She may have a part time final year and be able to maintain herself. I therefore propose to order that the husband pay maintenance for each of his daughters until the conclusion of the academic years 2001 and 2002 respectively, save that if either of them do not pursue full-time studies between now and that time then the provision of such maintenance should cease and the husband should be notified of either of his daughter’s cessation of full-time studies in writing within 7 days of same occurring.
I do not believe that any payment should be backdated. Both A and S have accumulated savings which each of them have spent or are intending to spend on necessary expenditure. They have been able to meet their necessary expenditure to the present time and continue as students albeit engaged in excessive hours (in the case of A) in order to earn income. I believe it would be prejudicial to their Father to have a lump sum payment which he now must meet when he is not in the financial position to do so.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM
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