KEK & BK - [2005] FMCAfam 250

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEK & BK

[2005] FMCAfam 250

FAMILY LAW – Adult child maintenance – child with disabilities – liability for adult child maintenance should not be determined by assuming a general benefit flows from tertiary education – a course of study that contributes to scholarship but does not enhance employability does not fall within the objects – child support departure applications – cross applications dismissed.

C v C (1962) 4 FLR 461
C & L [2002] FMCAfam 163 (unreported)
DJM v JLM (1998) FLC 92-816
Gyselman (1992) FLC 92-279
In the Marriage of Cosgrove (1996) FLC 92-700
In the Marriage of FM (1997) FLC 92-738
Mee & Ferguson (1986) FLC 91-716
In the Marriage of Gamble (1978) FLC 90-452
In the Marriage of H (1981) FLC 91-083
In the Marriage of Henderson (1989) FLC 92-011
In the Marriage of Tuck (1981) FLC 91-021
Osborne v Osborne (1972) 19 FLR 315

Applicant:

KEK

Respondent:

File No:

PAM 4158 of 2004

Delivered on:

30 May 2005

Delivered at:

Parramatta

Hearing dates:

8 February & 8 March 2005

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr A. Givney

Solicitors for the Applicant:

Lamrocks

Counsel for the Respondent:

Mr G. Watkins

Solicitors for the Respondent:

In person

ORDERS

Commencing 24 September 2004 pursuant to s.66L of the Family Law Act 1975 the father pay $162 per calendar month for the child Matthew (not his real name) born in 1986. Payment pursuant to this order is to be made to a bank account nominated by the mother, monthly in advance.
In addition to the maintenance ordered pursuant to order (1), the father shall provide private hospital and medical insurance, which includes provision for incidentals for the child.
If as a consequence of these orders the father must pay arrears of child maintenance, all arrears shall be paid to the mother within eight (8) weeks from today.
Commencing 7 September 2006, the father’s child maintenance for the child Matthew shall increase to $160 per week. Payment pursuant to this order is to be made to a bank account nominated by the mother, fortnightly in advance.
These orders continue until Matthew finishes a TAFE diploma commenced second semester 2005, or three years from the date of these orders provided Matthew is still enrolled in the TAFE diploma, or Matthew discontinues the TAFE diploma whichever is the sooner.
For the purpose of these orders Matthew will complete his TAFE Diploma on the day upon which a TAFE official advises he that he has completed all necessary requirements for conferral of TAFE Diploma.
If Matthew suspends his TAFE diploma studies for more than one year the father’s liability to continue to pay maintenance pursuant to these orders is discharged.
All child support applications are dismissed.
In the event that either party seeks to make an application for costs they shall file and serve written submissions within twenty-one (21) days. Any submissions in reply shall be filed and served within fourteen (14) days…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KEK & BK

Details

AGLC: KEK & BK [2005] FMCAfam 250
Case: [2005] FMCAfam 250
Decision Date: 30 May 2005

CaseChat Overview and Summary

In the Family Court of Australia, the case of KEK & BK involved the parents of a child born in 1986. The primary dispute centred around the father’s obligations regarding child maintenance and insurance for their son Matthew. The court was tasked with determining the appropriate amount of child maintenance, the duration of these payments, and the father's responsibility to provide private health insurance for the child.

The court had to decide on the quantum and duration of child maintenance payments, considering the child’s educational commitments and the father’s financial capacity. It also needed to address the provision of private hospital and medical insurance, ensuring the child's health needs were met. Additionally, the court had to consider the implications of the child suspending his studies and how that would affect the father's maintenance obligations.

The court determined that the father should pay $162 per month starting from 24 September 2004, increasing to $160 per week from 7 September 2006. These payments were to continue until Matthew finished his TAFE diploma, up to a maximum of three years from the date of the orders. If Matthew suspended his studies for over a year, the father’s maintenance obligations would cease. The court also ordered the father to provide private health insurance covering the child. Any arrears were to be paid within eight weeks, and all child support applications were dismissed. The court further outlined procedures for any future applications for costs and the return of exhibits.

Orders

Orders of the court

Commencing 24 September 2004 pursuant to s.66L of the Family Law Act 1975 the father pay $162 per calendar month for the child Matthew (not his real name) born in 1986. Payment pursuant to this order is to be made to a bank account nominated by the mother, monthly in advance.

In addition to the maintenance ordered pursuant to order (1), the father shall provide private hospital and medical insurance, which includes provision for incidentals for the child.

If as a consequence of these orders the father must pay arrears of child maintenance, all arrears shall be paid to the mother within eight (8) weeks from today.

Commencing 7 September 2006, the father’s child maintenance for the child Matthew shall increase to $160 per week. Payment pursuant to this order is to be made to a bank account nominated by the mother, fortnightly in advance.

These orders continue until Matthew finishes a TAFE diploma commenced second semester 2005, or three years from the date of these orders provided Matthew is still enrolled in the TAFE diploma, or Matthew discontinues the TAFE diploma whichever is the sooner.

For the purpose of these orders Matthew will complete his TAFE Diploma on the day upon which a TAFE official advises he that he has completed all necessary requirements for conferral of TAFE Diploma.

If Matthew suspends his TAFE diploma studies for more than one year the father’s liability to continue to pay maintenance pursuant to these orders is discharged.

All child support applications are dismissed.

In the event that either party seeks to make an application for costs they shall file and serve written submissions within twenty-one (21) days. Any submissions in reply shall be filed and served within fourteen (14) days and any response within a further seven (7) days. All submissions will be filed with my associate on facsimile number 9893 5767.

10.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

11.

The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

12.

All outstanding applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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