M and M
[2004] FMCAfam 714
•15 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2004] FMCAfam 714 |
| FAMILY LAW – Child maintenance – child over 18 – contribution to education expenses – relationship between parent and child. |
Family Law Act 1975 (Cth), ss.66B; 66K; 66L
Mercer v Mercer (1976) FLC 90-033
Oliver (1977) FLC 90-227
Marriage of H & H (1981) FLC 91-083
Cosgrove v Cosgrove (1996) FLC 92-700
| Applicant: | TM |
| Respondent: | SM |
| File No: | PAM107 of 2001 |
| Delivered on: | 15 December 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 8 December 2004 |
| Judgment of: | Emmett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Jurd, James Papas & Associates |
| Solicitors for the Respondent: | Mr Burke, Christopher M Edwards |
ORDERS
Pursuant to s.66L the Respondent is to pay by way of adult child maintenance the amount of $52 per week commencing 1 January 2005 until completion of the last examination of the course at NTC in which the Applicant is currently enrolled, the discontinuance of the course in which the Applicant is currently enrolled at the NTC or 1 December 2007, whichever is the sooner.
Payments are to be made fortnightly in arrears making the first payment due by 14 January 2005.
The Respondent is to pay the adult child maintenance into an account nominated by the Applicant and in the name of the Applicant.
The Applicant is to provide details of the account to the Respondent within 7 days of the date of these Orders.
The Respondent is to pay the Applicants costs in an amount of $825 within 28 days.
Liberty to apply to the Court on 3 days notice in respect of any difficulty arising out of the implementation of these Orders, such liberty to expire on 30 January 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM107 of 2001
| TM |
Applicant
And
| SM |
Respondent
REASONS FOR JUDGMENT
The Applicant is the daughter of the Respondent. The Applicant seeks an order pursuant to s.66L of the Family Law Act that the Respondent pay her the sum of $650 a month until 31 December 2007 or until she completes her study, that being a Bachelor of NT.
The law
The law to be applied in relation to child maintenance is set out in Division 7 of Part VII the Family Law Act 1975.
The objects of the division are to ensure that children have their proper needs met from reasonable and adequate share in the income, earning capacity, property and financial resources of both their parents and that parents share equitably in the support of their children. Those principles apply equally to a child who is over the age of 18 and who makes an application pursuant to s.66L.
Section 66L provides that:
(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 her education; or
b) because of a mental or physical disability in the child.
(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 compete his or her education; or
(b) because of a physical or mental disability of the child.
In considering s.66L, I have particular regard to s.66K and, relevantly, s.66B. In particular I note that pursuant to s.66K(4) I must disregard any entitlement of the Applicant or her mother, being the person with whom she lives, to an income tested pension, allowance or benefit.
Section 66K factors
Section 66K of the Family Law Act sets out the only matters that the Court must take into account and those matters are addressed below.
The Applicant states that at the commencement of the 2004 academic year she enrolled in a Bachelor's Degree course in HS at the UNE by correspondence and an Advanced Diploma course of NP at the NTC, having completed her Higher School Certificate at the end of 2003.
The Applicant gave evidence that the cost of her fees for the Advanced Diploma course are presently $8950 per annum. In respect of the fees for the UNE course there are HECS fees of $502.50 and a compulsory general service fee of $75.
The evidence of the Applicant is that her fees for this year have been paid pursuant to a loan from her mother in an amount of $10,000 and that at present the Applicant repays this loan to her mother at the rate of $50 per week. There is no evidence before me to suggest that the Applicant is ineligible for a student loan and indeed the evidence of the Applicant and her mother was that the loan was only obtained from her mother because it could be facilitated more quickly. Whilst the Applicant said in evidence that she was of the belief that the student loan attracted a higher interest rate, there was no evidence before me of comparable interest rates. Accordingly, I am satisfied that a student loan would otherwise be available to the Applicant for the cost of her fees at least.
The evidence of the Applicant is that during term time she works about 23 1/2 hours at BL at NR and over the holiday period somewhere between 31 and 38 hours and receives about $10 per hour, increased on weekends and holiday periods. The income of the Applicant for the year ended 30 June 2004 was $9635 gross and for the year ending 2003 $6185. The evidence is that the Applicant’s hourly rate will increase in 2005 with her age.
The Applicant relies on an Amended Financial Statement filed on
30 November 2004 showing in summary an average weekly income of $394 made up of $290 in wages before tax and $104 a week in youth allowance. Accordingly, I find that the Applicant will have available to her from her average weekly income in 2004 of $290 per week not less than $15,080 in 2005 and thereafter on the basis she continues the same number of hours with a similar mix of weekend, holiday and week days. Pursuant to s.66K(4) I do not take into account her youth allowance of $104 per week.
The Applicant identifies $40 in terms of personal expenditure; $40 in respect of income tax and a further $35 in respect of the insurance and registration of her car. The car is valued at $3250 having been bought in September 2003 for $4500 by the Applicant's mother for the use of the Applicant.
The Applicant identified a loan to her mother of $8000 in respect of her education fees. The Applicant identified a total of $269 in weekly expenses including $62 for petrol and maintenance in respect of her motor vehicle; $15 for fares and car parking; and $25 for books and magazines, most of which she identified to be relevant to her text books that she said costs in the order of about $1200 to $1300 a year. There are also other amounts including education expenses of $15 a week and hairdressing, chemist, clothing, food and telephone items.
The Applicant stated that it is necessary for her to have a car for the purposes of her study as she lives in North Richmond and studies at the NTC three days a week between 9 and 5.30 on two of those days and 9 and 3.30 on the third day. She is also obliged to travel to the Armidale campus of the UNE twice a year for about five days in April and September. The Applicant deposes that she uses her car to travel to Armidale although this year she has taken friends with her on each occasion and they have shared expenses. I am satisfied it is necessary for the Applicant to use her car to minimise her travelling time, thereby allowing her to maximise her working and study time. I find her claim for the expenses relating to the running, maintenance and insurance of the car reasonable in the circumstances.
The evidence in respect of the financial circumstances of the mother are that she owns real property with a value of over $400,000. She has sufficient equity in her home to enable her to borrow to pay her daughter's university fees at least for this year. She also earns not less than $460 per week. I have no other details of the mother’s financial commitments other than a mortgage in respect of the property in the vicinity of $55,000, $10,000 of which I note is being repaid by the Applicant pursuant to a loan to her by the mother. I also note the mother presently receives in the order of $550 per week after tax from the Respondent in child support.
The Respondent further submits that in any event he has no financial resources to provide adult child maintenance to the Applicant and that whilst his average weekly income is in the order of $1788 his total personal expenditure is in the order of $2000. Those figures are referred to by the Respondent in his Financial Statement filed 24 August 2004.
The Respondent has significant superannuation of over $300,000 and an interest in real property that he has sought to divest himself of together with income of at least $1700 per week before tax including allowances of about $700 a week. The Respondent submitted that those allowances are there because they meet an ongoing need by the Respondent. The Respondent in evidence clearly stated that they formed part of his income and there is no evidence before me as to the ongoing costs of the Respondent which those allowances may be meeting.
I am far from satisfied about the reality of the financial position of the Respondent beyond the identified income. However, I note that he has paid child support regularly and has a present obligation of child support in the range of some $2189 a month in respect of the Applicant's mother and his other three children. This equates to just under $550 per week and is an after tax liability for the father although is tax free in the mother’s hands. Accordingly, I find that whilst the father is paying that level of child support in fact his net income on his unchallenged figures is unlikely to be much greater than that of the mother.
I find that the Respondent has an obligation according to his capacity to contribute to the Applicant’s financial needs. I am concerned at the hardship the Applicant has endured in meeting her costs in comparison to her parents’ ability to contribute. I note that to date her mother does not demand board but does require $50 per week towards repayment of her loan to the Applicant for her NTC fees. I note that there is no other evidence before me from the Applicant that repayments for a loan in respect of fees would differ greatly from the amount being paid to her mother. If one disregards her student allowance of $104 the Applicant would appear to have a need of no less than $104 per week to meet her expenses.
Section 66K(e) – special circumstances
The Respondent separated from the Applicant's mother in about 2000 and since that time relations between the two have remained actively hostile and there has been on and off litigation in respect of child support and other applications since that time.
The Applicant said that at a parent teacher evening in about May 2003 when she was in Year 12 her father, the Respondent, had agreed to bear the costs of additional tuition for physics and chemistry which he later refused to pay. The Applicant stated that she continued to see her father until about September 2003. At that time the Applicant said that the Respondent refused to contribute to the registration costs of her car on the basis that he pays child support.
The Applicant stated that she attempted to correspond with her father on 24 March 2004 to tell him of her proposed studies and to seek his financial assistance in relation to the expense of her studies and I accept that a letter in terms of ‘Annexure I’ sworn 30 November 2004 to the Affidavit of the Applicant was received by the father at around that time.
The Respondent deposes that he was not involved in any decision regarding the Applicant’s tertiary education nor the purchase of any car to allow her to travel and that he has had no communication with her since September 2003. The father deposes that in September 2003 he agreed that he did indeed refuse to pay for the registration of the car but that the registration was requested by the Applicant in the context of inviting the Respondent to attend her Year 12 formal and when the Respondent refused to contribute to the registration of the Applicant's car the invitation to attend her formal was withdrawn.
The Respondent also deposed that on 22 May 2003 the Applicant sent SMS messages to his telephone saying:
"Dad just forget that you're my father and created four kids maybe that's the easiest thing for you to do because as long as she is your number one priority."
I accept that the "she" in SMS message is the Respondent's partner, RB. A further message was sent that day saying:
"You can get stuffed."
The father further gave evidence that the Applicant and her younger brothers and sisters had regularly made disparaging remarks to the Respondent about his partner, RB, following the Respondent's separation from the Applicant's mother and that at least two of the children, including the Applicant, said to him:
"Mum's boyfriend is a better father to us than you."
The Respondent submits that the estrangement that he has had from the Applicant arising out of the SMS text messages sent by the Applicant in May 2003 was sufficient conduct on the part of the Applicant to sever relations between the parties and that since that time his relationship with the Applicant has been such that the Applicant has lost the right to demand:
"a slice of the paternal cake with one breath and spew out filial abnegation with the next" [Mercer v Mercer (1976) FLC 90-033 at 76,203, Watson J].
In the case of Oliver (1977) FLC 90-227 Asche J, in acknowledging the sentiment referred to by Watson J in Mercer, went on to say at 76,203:
“I do not think that it is a necessary element of awarding maintenance that there should be a warm relationship between the parent and the child and if it were necessary in every case to prove that, it would encourage the child who behaved with smarmy obsequiousness to his parent as against the child who remained frank and honest as to his relationship.”
In the Marriage of H & H (1981) FLC 91-083 Smithers J, in referreing to both Mercer and Oliver stated at 76,575:
“As to children over 18 years, this basic duty to contribute to support gives way to an obligation which arises only in certain limited circumstances. Where a child is an adult he should, as a prima facie principle, support himself. It should not normally be compulsory for a parent to continue to maintain or contribute to the maintenance of, an adult child….I believe that the attitude of an adult child to his father can be a matter of relevance…Both Watson and Asche JJ have made it clear that in their view there may be cases in which the conduct of a child may make it incorrect for the court to make an order for his maintenance.”
The Respondent submits that essentially the Applicant has deliberately rejected the Respondent as a parent and has intentionally cut off any relationship with the Respondent and that accordingly her attitude to the Respondent should not entitle her to look to the Respondent for support.
The Respondent appeared to demand that unless his children are providing him with gifts and seeking to communicate with him that he has no obligation to seek to ensure that they know he would be otherwise willing to participate in a filial relationship. He appeared to have little empathy with the children's position arising from the separation of their parents and the natural instinct to be critical and unsupportive of a new partner of a parent, particularly where they may well be influenced by the attitude of a mother with whom they live and who is plainly hostile, unsupportive and critical of her ex husband.
The Respondent cited an incident where soon after separation the youngest child who was then four at the time told him that his new partner was a witch. Given the focus of children of that age on fairy stories and the presence of witches one might expect the Respondent to accept those words with greater emotional robustness, resilience and understanding. Certainly cutting the children off and not seeking to pursue a relationship with them or assisting them to understand and know the Respondent is not the way to overcome the difficulties that the children may have been having in respect of the adjustment of the loss of the Respondent from their lives on a daily basis.
Further the Applicant’s mother has obviously had a destructive influence on the Applicant’s relationship with her father and this is a cause of great sadness. The Applicant would appear to have little understanding of the contribution her mother doubtless made to the failure of the parties’ marriage and would appear to be unquestioning in accepting what her mother tells her as accurate.
However, I am not satisfied that the estrangement that plainly exists now between the Respondent and the Applicant is the sole fault of the Applicant. Further, I have regard to the fact that the Applicant did make an effort to correspond with the Respondent even if that was in a climate of potential financial need. There is no evidence before me to suggest that the Respondent took any steps to acknowledge or respond in any way to the Applicant. In the circumstances, I find that the conduct of the daughter of the Applicant towards the Respondent is not such as to disentitle her from bringing her application.
It is generally accepted that necessity for financial assistance in the Applicant’s circumstances does not mean absolutely essential but involves an element of reasonableness. Warnick J in Cosgrove v Cosgrove (1996) FLC 92-700 at 83,390 sought to identify a series of non-exhaustive factors that may be considered by a Court in exercising the discretion in adult child maintenance cases as to what may constitute special circumstances. They are relevantly:
i) whether the nexus of dependence between the child and the parents has ceased and the application amounts to a resurrection of that dependence
In respect of this factor I note that the Respondent has provided child support until the Applicant turned 18 on 30 December 2003 and the Applicant requested contribution to the costs of her course from the Respondent in March 2004. That request was not answered by the Respondent and the Applicant thereafter commenced proceedings for adult child maintenance on 30 July 2004. Accordingly, I find that the Applicant has acted sufficiently promptly and without undue delay in seeking to maintain some financial support from the Respondent such that the nexus is not broken.
ii) the period between the initial cessation of dependence and the application
See above.
iii) whether the child had completed the course of education intended by the parents to outfit her for employment sufficient to support herself
Whilst the Respondent has denied the positive case asserted by the Applicant that indeed it was the agreement of the Applicant's mother and the Respondent that the Applicant would pursue tertiary studies, I note that the Respondent was sufficiently interested in the later studies of the Applicant that he attended the parent/teacher night in Year 12. Accordingly I am satisfied that there has never been an intention of the Respondent that the Applicant not continue in some form of tertiary education to outfit her for employment to support herself.
iv) other assistance, benefits or education which the child has received
The Applicant lives rent free in the home of her mother and has had the benefit of a loan from her mother to assist with her education costs. Further the Applicant has sought to contribute significantly for a person of her age to her own financial expenses by working for some number of years with BL at NR on a sufficiently consistent and regular basis that she has recently been given permanent part time employment.
v) the ability of the child to complete the course in question
The Applicant has shown a remarkably mature attitude to seeking to acquire some financial independence both by her dedication to her studies and her commitment to her part time job to enable her to pursue those studies to the best of her ability. Accordingly, I am satisfied that she clearly has the ability to complete the course in which she is enrolled.
vi) the likelihood of the child completing the course in question
See above.
vii) the financial capacity of the child to maintain herself to the completion of her education
This matter is largely addressed above in the judgment. However, I am of a view that the Applicant by enduring some significant hardship may be able to find the financial resources to complete her education by borrowing and working consistently and committedly. The Applicant has availed herself of HECS in respect of her UNE fees and is working to seek to pay back a loan to her mother in respect of her college fees. It is to her great credit that she has approached her future with such discipline, diligence and maturity.
viii) the financial circumstances of those persons responsible for support of the child, generally her parents
I have referred to this matter earlier in the judgment.
ix) the filial relationship between the child and the person from whom maintenance is sought
I have referred to this matter earlier in the judgment.
Findings
The Applicant gave her evidence in a confident and forthright manner and I find her to be an honest witness whose evidence was largely reliable.
In relation to the Respondent, I note that in his Financial Statement sworn on 17 August 2004, the Respondent records in Part 1 a nil value in respect of any share as registered owner of a home or other real estate. However, in cross-examination the Respondent conceded that in fact on 17 August 2004 he had signed a cohabitation agreement with his partner, RB, part of which provided for the transfer of a property registered in his name and in respect of which a mortgage exists with BananaCoast Credit Union. That is plainly material financial information and was not disclosed either in the Financial Statement nor the Affidavit sworn by the Respondent on
17 August 2004. Further, no documents were produced in answer to a Notice to Produce called on by the Applicant at the commencement of the hearing, which inter alia, specifically referred to any mortgage in relation to BananaCoast Credit Union.
On the second day of the hearing the Respondent sought to tender an Affidavit to seek to explain his failure to disclose that highly relevant information on the basis that he held fears that in the event the identity of the property was disclosed that the mother of the Respondent may take steps to damage that property. Leave was refused to the Respondent to rely on that Affidavit. At no time were any steps taken to amend the positive case stated by the Respondent in his Financial Statement that he has no property at all nor interest in any property or mortgage. Further, no steps were taken to lead that evidence from the Respondent yesterday when he gave evidence in answer to the call on the notice to produce in which he stated that he had no documents to produce at all and it was only in cross-examination that he agreed that he was the registered proprietor of a property.
I place no weight on the contention of the Respondent that he had such fears that the Respondent's mother may damage the property and that was his reason for failing to disclose to the Court or the Applicant at any time prior to today in circumstances where the evidence is that the only building on the land is ten metres of a sandstone wall. That absence of disclosure and the inadequate explanation for the disclosure caused me to place no weight on any evidence provided by the Respondent in these proceedings in respect of any income or expense that is not otherwise corroborated by documentary evidence or unchallenged by the Applicant.
Further, the Respondent commenced answers to cross-examination in a less than frank fashion and I find that his obvious failure to disclose fully his financial situation causes me to prefer the evidence of the Applicant where his evidence on any issue departs from that of the Applicant.
The Respondent further submits that s.66L is to enable a child to complete her education and that those words involve the child in completing education commenced prior to turning 18 and that the evidence is that the Applicant did not apply for this course that she presently attends until after she had turned 18 and therefore her application was outside the contemplation of the section. I find that the Applicant by her actions in putting herself forward for consideration for university acceptance in both the round one and round two offers had a plain intention to continue with tertiary studies and indeed, was proactive in seeking out the NTC course and has given positive evidence of her enjoyment of the course, her intention to pursue it to completion and to practice as a natural therapist either in Australia or overseas. Accordingly, I reject that submission of the Respondent.
The Applicant gave evidence that her course was a four-year course and was full time. The Respondent sought to tender a document downloaded from the internet today that the course is a three-year course full time available for study by distance. The Respondent was not able to establish that that is indeed the same course as that in which the Applicant is enrolled nor did he submit as such. The Respondent further tendered and sought to rely on a bus timetable between NR and R showing that there were buses available to the Applicant outside of school hours in contradiction to the evidence given by the Applicant that there were no buses from her home to the train station. However, again, that was material that was downloaded today and there is no evidence as to when those timetables were introduced. Accordingly, I make no finding in respect of that material.
Whilst I have found that the Applicant has not conducted herself in such a way as to disentitle her to look to her father for some support in the event of her proving a need in herself and a capacity to pay in her father, I am troubled by the negative influence of the Applicant’s mother upon the Applicant’s attitude to her father. It is apparent that the Applicant’s mother has done little, if anything, to foster healthy filial relationships between her children and their father, in whose life they should be able to participate with pride.
One can only hope that after these proceedings the Applicant will realise she has given the Respondent little opportunity to share in her life and she has taken few steps to participate in the Respondent’s new life. The Respondent on the other hand has been quick to visit the antagonism he feels towards the Applicant’s mother upon his children without seeking to empathise with his children the loss they have suffered in not having shared in his new life in the face of the hurdles placed by the mother.
Recently, it would appear that the Applicant has viewed the Respondent as merely a financial reservoir, however, it is only in September 2003 that the relationship appears to have been struck broadside. I am of the view that the filial relationship between the parties is not irretrievable even after the unhelpful trauma of this litigation endured by both parties.
In the circumstances I am satisfied that it is appropriate that the Respondent make some contribution to the Applicant for her further education whilst ever she is enrolled full time in this course. However, I have regard to the Applicant's demonstrated ability to contribute to some extent to her expenses, the ability of the mother to continue to house the Applicant and the financial position of the Respondent to the extent that it would appear to demonstrate an unchallenged weekly income of about $1200 after the payment of child support. Given the manner in which the Respondent provided his financial evidence and the findings I have made in respect of the Respondent I make no finding as to the liabilities of the Respondent.
I find that the ability of the mother to contribute to the financial need of the Applicant is no less than that of the Respondent. Further I note that the Respondent is paying child support that includes a contribution to the ability of the mother to put a roof over the heads of all her children, including the Applicant.
Conclusion
The Applicant presently earns $394 per week which includes a $104 allowance that I must disregard pursuant to s.66K, leaving a figure of $290. I find the Applicant’s expenses of $269 per week as stated in her Financial Statement as not unreasonable. She also has $125 of personal expenses, made up of $40 income tax, $35 registration and insurance and $50 loan repayment to her mother making a total weekly outgoing of $394, again, all of which I find to be reasonable expenses in the circumstances.
Accordingly, having considered the evidence before me together with the submissions of each party, I find that the Respondent ought to bear half the costs of the difference between the Applicant’s expenses and her needs that being $104.
The finding above leads me to the conclusion that the Applicant was plainly seeking far too great an amount of maintenance. Sadly the Applicant appeared to have little regard, if any, to the effect her Application may have on the Respondent’s life and with little appreciation, if any, of contributions made by the Respondent in the past, which, the Applicant needs to realise have not been insubstantial.
On the other hand the Respondent needs to realise he has a daughter of whom he should be immensely proud.
In the circumstances I order that the Respondent pay child maintenance to the Applicant in the order of $52 per week until the completion of her studies at NTC and the UNE or the end of the academic year 2007, whichever is the sooner.
Further, I note that the Applicant has survived the hardship of the financial burden she has incurred with her studies in 2004. Accordingly, I order that the Respondent’s financial contribution commence from 1 January 2005 and be paid each fortnight thereafter in arrears to an account nominated by the Applicant and to continue until completion of the last examination of the course at NTC in which the Applicant is currently enrolled, the discontinuance of the course in which the Applicant is enrolled at the NCT or 1 December 2007, whichever is the sooner.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 15 December 2004
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