Keltie & Keltie & Bradford

[2002] FamCA 421

JFKELTED

[2002] FamCA 421

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT CANBERRA

File No. ZC2867 of 2001

IN THE MATTER OF:

KELTIE

Applicant

- and -

KELTIE

First-Named Respondent

- and -

BRADFORD

Second-Named Respondent

EDITED REASONS FOR JUDGMENT

BEFORE:                  Nicholson CJ, Ellis and Finn JJ.
HEARD:  8th day of May 2002
JUDGMENT:           21st day of June 2002

APPEARANCES:     Ms Tonkin of counsel, instructed by Jeanine Lloyd & Associates, Solicitors, 21-23 London Circuit, Canberra  ACT  2600, appeared on behalf of the applicant.

There was no appearance by or on behalf of the First-Named Respondent.

Mr Brzostowski of counsel, instructed by Farrar Gesini & Dunn, Solicitors, Level 5/17-21 University Avenue, Canberra  ACT  2601, appeared on behalf of the Second-Named Respondent.

Catchwords:              Child maintenance – Maintenance liability of a step-parent to a step-child over the age of 18 years.

This was a case stated to the Full Court as follows:-

“Does the Family Law Act give a court of competent jurisdiction the power to make an order that a step-parent pay maintenance for a stepchild who has attained the age of 18 years?”

The Court answered the question raised in the case stated in the affirmative.

Reportable.

INTRODUCTION

1. On 22 January 2002, Federal Magistrate Brewster stated a case for the opinion of the Full Court on a question of law pursuant to the provisions of s.94A(3) of the Family Law Act 1975 (Cth) (“the Act”). It raises the question whether the Act gives a court of competent jurisdiction the power to make an order that a step-parent pay maintenance for a step-child who has attained the age of 18 years.

1. The relevant factual and legislative background to the question raised for consideration is set out in the following terms in the case stated:-

“1.This matter concerns an application for the maintenance of a child E.  E was born on 29 January 1983 and has therefore attained the age of 18 years.

2.On 10 August 2001 E filed a Form 12 application for maintenance in the Federal Magistrates Court of Australia at Canberra.  That application sought maintenance from the first respondent of $150 per week and from the second respondent of $150 per week.

3.The first respondent is E’s natural father.  On 19 November 2001 orders were made by consent that he pay maintenance to E in the sum of $50 per week.

4.The second respondent is E’s stepfather.  He lived with E’s mother from 1991 until her death on 3 January 1997.  They married on 23 April 1993.

5.E resides in New South Wales.  The second respondent resides in the Australian Capital Territory.

6.       The second respondent contends

(a)That Section 66L of the Family Law Act which gives a court the power to make orders with respect to maintenance for a child who has attained the age of 18 years does not apply to a stepchild

…

(c)That Section 66M of the Family Law Act which gives the court the power to order that a step-parent pay maintenance for a stepchild does not apply to a stepchild who has attained the age of 18 Years (sic).”

1. Since the case was drafted and filed, a second question contained therein has been withdrawn.  The Court was requested to consider and determine only the first question formulated in the case stated, namely:-

“1.Does the Family Law Act give a court of competent jurisdiction the power to make an order that a step-parent pay maintenance for a stepchild who has attained the age of 18 years?”

RELEVANT PROVISIONS OF THE FAMILY LAW ACT

1. We consider that it would be useful to commence our consideration of the question raised by this case stated by outlining the structure and relevant contents of the provisions of Division 7 of Part VII of the Act which is entitled “Child maintenance orders”, particularly as we were taken through the various sections by counsel for both the step-father and the adult child.

1. The expression “child maintenance order” is not defined in Division 7. The definition is to be ascertained by reference to ss.4(1), 64B(5), 64B(2)(c) and 60D(1) of the Act.

1. Section 4(1) provides that, unless the contrary intention appears, “child maintenance order” has the meaning given by s.64B(5) and s.60D(1) provides that, in Part VII, “child maintenance order” has the meaning given by s.64B(5).

1. Subsection 64B(5) provides that:-

“To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(c), the order is a child maintenance order.”

1. Paragraph (2) of s.64B provides that:-

“A parenting order may deal with one or more of the following:

…

(c)       maintenance of a child;”

1. Subsection 66B(1) sets out the principal object of Division 7, namely to ensure that children receive a proper level of financial support from their parents.  Subsection 66B(2) sets out particular objects of the Division, namely to ensure that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents, and that parents share equitably in the support of their children.

1. Subsection 66C(1) provides that the parents of a child have, subject to the Division, the primary duty to maintain the child.  The priority of that duty is defined in paragraphs (a) and (b) of s.66C(2), whilst paragraph (c) provides, inter alia, that the duty is not affected by the duty of any other person to maintain the child.

1. Section 66D sets out the principles as to when step-parents have a duty to maintain a child as follows:-

“(1)The step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step-parent to have that duty.

(2)      Any duty of a step-parent to maintain a step-child:

(a)is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and

(b)does not derogate from the primary duty of the parents to maintain the child.”

1. Section 66E prohibits a court from making, reviving or varying a child maintenance order where an application for child support could properly be brought under the Child Support (Assessment) Act 1989 (Cth).

1. Section 66F sets out the persons who may apply for a child maintenance order.

1. The Court’s power to make a child maintenance order is conferred by s.66G as follows:-

“In proceedings for a child maintenance order, the court may, subject to this Division, make such child maintenance order as it thinks proper.”

1. Subsection 66H prescribes the approach to be taken by a court in determining an application for a child maintenance order.

1. Subsection 66J sets out the only matters that a court must take into account in considering the financial support necessary for the maintenance of a child, which include the objects set out in s.66B.

1. Section 66K identifies the only matters that a court must take into account 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. 

1. Section 66L relates to a child maintenance order in relation to a child who is over 18 and is in the following terms:-

“(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.”

1. Section 66M defines when step-parents have a duty to maintain a child, and is in the following terms:-

“(1)As stated in section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.

(2)A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.

(3)In making an order under subsection (2), the court must have regard to these (and no other) matters:

(a)the matters referred to in sections 60F, 66B and 66C; and

(b)the length and circumstances of the marriage to the relevant parent of the child; and

(c)the relationship that has existed between the step-parent and the child; and

(d)the arrangements that have existed for the maintenance of the child; 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.”

1. Section 66N sets out matters to be taken into account in determining the financial contribution towards the financial support necessary for the maintenance of a child by a step-parent of the child and is in the following terms:-

“In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child, the court must take into account:

(a)the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and

(b)the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.”

1. We have already referred to the provisions of ss.66B, 66C, 66D and 66K. As s.66N also refers to s.60F, for completeness, we set out s.60F which provides:-

“(1)A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children:

(a)a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

(b)       a child of the husband and wife born before the marriage;

(c)a child who is, under subsection 60H(1), the child of the husband and wife.

(2)A reference in this Act to a child of a marriage includes a reference to a child of:

(a)a marriage that has been dissolved or annulled, in Australia or elsewhere; or

(b)a marriage that has been terminated by the death of one party to the marriage.

(3)A child of a marriage who is adopted by a person who, before the adoption, is not a prescribed adopting parent ceases to be a child of that marriage for the purposes of this Act.

(4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

(a)if a court granted leave under section 60G for the adoption proceedings to be commenced - the child ceases to be a child of the marriage for the purposes of this Act;

(b)in any other case - the child continues to be a child of the marriage for the purposes of this Act.”

1. Section 66P confers on the Court a range of general powers in proceedings for a child maintenance order. Section 66Q confers jurisdiction on the Court to determine urgent child maintenance orders. Section 66R requires the Court to specify certain details if the Court makes provision for the maintenance of a child by ordering a lump sum payment or the transfer or settlement of property. Section 66S relates to the modification of a child maintenance order. Sections 66T, 66U and 66V relate to the effect on a child maintenance order of the child turning 18, dying, being adopted, marrying or entering into a de facto relationship. Section 66W relates to the recovery of arrears under a child maintenance order.

1. Specifically, in relation to children over the age of 18 years, s.66VA provides:-

“(1) A child maintenance order made under section 66L:

(a)to enable the child to complete his or her education; or

(b)because of a mental or physical disability of the child;

stops being in force if the child ceases that education or ceases to have that disability.

(2)The person to whom the maintenance is payable must, as soon as practicable, inform the person required to pay it of that change in circumstances.

(3)Any amounts of maintenance paid under the child maintenance order after it stops being in force may be recovered in a court having jurisdiction under this Part.”

1. Counsel for the step-father also drew our attention to the provisions of s.65H(2) which provides:-

“A parenting order in relation to a child stops being in force if the child turns 18, marries or enters into a de facto relationship.”

1. We note, however, that s.65H(2) is in Division 6 which relates to parenting orders other than child maintenance orders.

1. We would record that the father of the adult child did not appear at the hearing before us.

SUBMISSIONS ON BEHALF OF THE STEP-FATHER

1. Counsel for the step-father referred to the relevant sections of the Act and then submitted that the only section which provides for the determination of the financial contribution towards the financial support necessary for the maintenance of a child by a step-parent of the child is s.66N.

1. He noted that s.66K(1) provides that the Court, 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, must take into account the matters mentioned in ss.66B, 66C and 66D. He submitted that this is saying no more than that there are parents who may be ordered to make contributions and that there may be step-parents who may also be obliged to make a contribution towards the financial support necessary for the maintenance of a child. Thus, he submitted, the Act does not provide that a step-parent “is liable to a ‘child maintenance order’ as defined”. He further submitted that s.66L refers to a child maintenance order and not to financial contributions towards the financial support necessary for the maintenance of a child by a step-parent.

1. Sections 66M and 66N, he submitted, form a code which requires the Court first to determine, having regard to the matters referred to in s.66M(3), whether it is proper to impose a duty upon a step-parent to maintain a step-child, and then, if it is proper, to determine the financial contribution to be made by the step-parent towards the financial support necessary for the maintenance of the child, having regard to the provisions of s.66N which further directs the Court to take into account the matters referred to in ss.60F, 66B, 66C, 66D and 66K. Counsel asserted that support for the submission is to be found in the omission from s.66N of any mention of s.66J.

1. Counsel further submitted that by omitting any reference in s.66N to s.66L, Parliament has not shown an intention to require a step-parent to make any financial contribution towards the financial support necessary for the maintenance of a child who is 18 or over, regardless of whether that child is completing his/her education or is disabled.

1. In addition, counsel submitted that the reason for the omission of any reference to the termination of the duty of a step-parent to contribute in ss.66L(3) and 66T, was that those provisions relate only to a “child maintenance order” and not to an order made pursuant to ss.66M and 66N.

1. He thus submitted that the question formulated in the stated case should be answered in the negative. 

1. During the course of argument, counsel conceded that, if an order made pursuant to the provisions of ss.66M and 66N is a child maintenance order, then, having regard to the provisions of s.66L, a court of competent jurisdiction would have power to make an order that a step-parent pay maintenance for a step-child who has attained the age of 18.

SUBMISSIONS ON BEHALF OF THE ADULT CHILD

1. Counsel for the adult child submitted that the question formulated in the case stated should be answered in the affirmative.

1. She also referred in detail to the structure of Division 7 of Part VII of the Act and the relevant sections contained therein.

1. After referring to the definition of a child maintenance order, counsel noted that the definition contains no discrimination by reference to age and, in particular, that no distinction is drawn in respect of children under or over the age of 18.

1. Thereafter, she submitted if a court determines that it is proper for a step-parent to have a duty under s.66M to maintain a step-child, the court proceeds to determine the contribution to be made by the step-parent for the maintenance of the child in the same manner as it would determine an application against a parent, subject to the important qualification contained in s.66N(b). If the court determines that it is proper to make an order, she submitted, the order made is a child maintenance order.

1. Counsel further submitted that but for s.66L, the use of the word “child” and the words “child maintenance order” in the Act would not prescribe the operation of any relevant order to minors. Any contrary construction, she asserted, would render the terms of s.66L, especially subsection (3) redundant or unnecessary and that s.66T gives support to that construction. From this platform, she contended that, absent ss.66L and 66T, a child maintenance order, once made, irrespective of whom it was made against, would continue to operate until the order was discharged by a further order of a court of competent jurisdiction. It would appear, however, that counsel has overlooked the provisions of s.65H(2).

1. However, she submitted that s.66L(3) operates in relation to all child maintenance orders, including an order that may have been made against a step-parent during the child’s infancy.

1. She further submitted that, in terms of power to make an order, there is nothing in the Act which would distinguish between the obligation on a step-parent that may by the terms of s.66L arise before a child has turned 18 as opposed to an application heard after a child has turned 18.

1. That interpretation is supported, she submitted, by the provisions of s.66VA(2) which imposes an obligation on the person to whom the maintenance is payable, in the circumstances outlined in the section, to inform the person required to pay child maintenance pursuant to an order made under s.66L of the change in circumstances. As a child maintenance order can only be made against either parents or step-parents, the language of s.66VA(2) indicates that it applies to persons other than parents, namely step-parents, as otherwise the word parents would have been used.

CONCLUSION

1. In our view, the submissions of counsel for the adult child are more persuasive than those of counsel for the step-father. Again, in our view, an order made pursuant to the provisions of ss.66M and 66N is an order dealing with the maintenance of a child and is thus a child maintenance order.

1. We would agree with the view expressed by Chisholm J. in Carpenter and Carpenter (1995) FLC 92-583 that the terms “child” and “children” used in the now Division 7 of Part VII refer to a relationship rather than an age: see also Smith; St James; Smith v Wickstein (1996) FLC 92-714.

1. Section 66L prohibits a court from making a child maintenance order in relation to a child who is over 18 or from making such an order which will extend beyond the day in which the child will turn 18 unless, in either case, the Court is satisfied of certain matters. Accordingly, that section has application to a child maintenance order being an order made pursuant to the provisions of ss.66M and 66N.

1. Accordingly, we answer the question raised in this case stated in the affirmative.

1. At the completion of submissions, counsel informed us that neither party sought an order for costs in relation to the case stated.

I certify that the preceding 46 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate