M & M
[2002] FMCAfam 337
•10 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2002] FMCAfam 337 |
| FAMILY LAW – Maintenance order – child over 18 years – payment of maintenance until adult child completes tertiary education – financial need of the child – no contact between parent and child. Family Law Act 1975, ss.66J, 66L C v C (1962) 4 FLR 461 |
| Applicant: | L D M |
| Respondent: | L W M |
| File No: | PAM 2565 of 2002 |
| Delivered on: | 10 October 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 24 September 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Lamrocks Solicitors |
| Counsel for the Respondent: | Mr Giveny |
| Solicitors for the Respondent: | Howard Sheridan Cooney Harvey Solicitors |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2565 of 2002
| L D M |
Applicant
And
| L W M |
Respondent
REASONS FOR JUDGMENT
This is an application by the wife for maintenance in the sum of $300.00 per week for S C M, born 23rd June 1983, a child of the marriage, until he completes his tertiary education at the Australian College of Physical Education. The Applicant claims that an order for maintenance is necessary to enable the young man to complete his education at the Australian College.
The Respondent opposes the order sought.
Background
The Applicant and the Respondent were married on 29th January 1966 and were divorced in December 1983. There were six children of the marriage, all of whom are now adults. The parties separated in November 1982, before the child S was born. There has been no contact between the Respondent and S, and S M told the Court on the date of the hearing that he had never seen his father before that day.
There have been previous proceedings between the parties relating to child maintenance. From the evidence, the most recent seems to have been consent orders made in the Local Court of New South Wales at K on 17th November 1992, where earlier orders made by the Local Court at Blacktown were varied to provide that the Respondent should pay maintenance in the sum of $8.00 per week of for each of S and an elder brother and elder sister.
Those consent orders provided that arrears of outstanding maintenance should be reduced to nil. The orders required the Respondent to notify the Applicant within seven days of his obtaining employment. The orders also contained an order requiring the Respondent to notify the Applicant within two months of his lodging an income tax return in which his net taxable income exceeded $7,842.00 per annum.
The Respondent has remarried. He lives on a small farm outside K, New South Wales.
Evidence
The Applicant gave evidence by affidavit and was cross-examined. It is her evidence that her son has commenced as a full time student at the Australian College of Physical Education. His course will take three years to complete, and, if he wishes to become a school teacher, he will have to undergo a further year of study. Because of the subjects he took for his Higher School Certificate (HSC), he did not obtain a UAI (University Admissions Index) score, so he is not able to attend a State University. If he wished to do so, he would have to either go back and repeat the HSC, or wait until he attains the age of 21 and seek entry as a mature age student. Because the college is a private tertiary institution, he cannot defer his fees under the HECS scheme. The fees for his first semester were $6,500.00, less a scholarship rebate of $1.625.00, making a total of $4.875.00.
The young man receives a Youth Allowance of approximately $198.30 per fortnight. He has a casual job in a shop which brings him in about $40.00 for a week (but sometimes he does not get to work a shift all week). He is also an accomplished athlete and plays football, all of which adds to the expense of his upkeep. The Applicant estimated her average weekly expenses for herself at $92.00 and for her son at $535.00.
The Applicant herself receives a disability pension, and deposed in her affidavit to receiving approximately $208.15 per week. She has no other income. The respondent was paying maintenance in the sum of $38.00 per fortnight, but that came to an end on 23rd June 2001, when S turned 18.
The Applicant had asked her solicitors to write to the Respondent in September 2001, asking that he consent to an order for S’s maintenance. A copy of the solicitors’ letter dated 19th September 2001 is annexed to the Applicant’s affidavit. The Respondent wrote back on 28th September 2001, advising that he was still on unemployment benefits and saying “I have been advised that under our financial circumstances we would not be able to meet this request.”[i]
In cross-examination by Mr Givney, Counsel for the Respondent, the Applicant denied that she had ever denied contact to the Respondent. She said that she never wrote to the Respondent because she was under the impression that he did not want any contact. She never sent him any photographs of S.
The Applicant was asked about the maintenance proceedings at K Local Court in November 1992. She said words to the effect of
“I could not attend K Local Court. I was awarded a low amount.” She admitted that she was legally represented on that occasion. The evidence shows that she was legally represented and the matter was settled. What appears to be her signature appears on the Terms of Settlement.
The Applicant was asked whether her son had written to the Respondent, asking for financial assistance. Her animosity towards the Respondent, even after nearly twenty years, was discernible from her reply:
“S chose not to write to his father. He left before S was born. Why would he want to? His father abandoned them”.
The son, S C M, gave evidence by affidavit and was cross-examined. In paragraph 3 of his affidavit, he said “My father and mother separated before I was born, and I have not had any contact with my father.” In his affidavit, he corroborated his mother’s affidavit evidence about his attendance at the Australian College of Physical Education, his involvement with athletics at an elite level, and his plans to become a physical education teacher. He also confirmed his mother’s evidence about the costs of his course and his income and upkeep.
His counsel, Mr Kenny, led some brief oral evidence from him about the fact that he did not apply to attend a Government university. He said he was misinformed by his careers adviser at school and was half way through Year 12 when he found out that the courses he was taking would not earn him a UAI score which would enable him to enter a State University.
Mr Givney, for the Respondent, elected not to cross-examine the young man. In answer to questions from the Bench, he said that he had not sought to make contact with his father, adding “We haven’t changed our address at all.”
The Respondent gave evidence by affidavit and was cross-examined. In his affidavit, he claimed that he had been denied contact with S by the Applicant and that in 1983 the earlier contact orders were suspended by agreement. In his affidavit, he said that he his solicitor at the time had recommended that he “move on and start a new life”[ii]. It is his evidence that his income is derived from Newstart Allowance and that his current wife receives a disability pension. He annexed to his affidavit an Income Statement from Centrelink showing that he received Newstart Allowance of $302.14 plus a GST component of $6.38. He also annexed an Income Statement from Centrelink for his current wife, showing her income from the Disability Support Pension as $335.47 plus GST component of $13.20 and pharmaceutical allowance of $2.90 per fortnight. The Income Statements also showed details of their income other than Centrelink payments. The Respondent’s other income was shown as nil, whilst his wife’s was shown as a total of $5493.73 per annum.
The Respondent said that he had a few cattle, but was not making an income out of them. In cross-examination, he said that he was required by Centrelink to look for work, but work was difficult to obtain in a rural area because of the drought. He admitted that he had not sought to contact his son, giving the Applicant’s opposition to contact as a reason.
The Respondent’s current wife, Joyce Elizabeth M, was called for cross-examination, although she had not submitted an affidavit. She said that she had received some money by way of compensation as a result of the death of her first husband, but that money had all been expended. There was a trust, but that was wound up about eighteeen months ago. She worked about seven hours a week in a café. When asked about any lump sum of money that she might have had, she said she had put some money aside to pay for her funeral, but made the pointed remark to Mr Givney, counsel for her husband, that the money had gone to pay his fees.
The principles to be followed
The courts regard it as appropriate to continue maintenance to allow a child to undertake a tertiary education. The Victorian Full Court, in
C v C(1962) FLR 461 at 465, set out five principles to observe:
a)whether the course to be pursued by the child was going to help the child to earn an income;
b)whether the child appeared to be qualified to pursue and profit from the course;
c)whether the child had scholarship assistance, or other income;
d)what hardship would result to the child if he or she had to abandon the course through lack of means; and
e)whether the parent asked had the means to assist.
The relevant statutory provision is section 66L(2) of the Family Law Act, which provides that a court must not make an order for the maintenance of a child who is 18 or over unless the court is satisfied that the maintenance is necessary to enable the child to complete his or her education. In this context, ‘necessary’ does not mean ‘absolutely essential’ but that “the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors” (Tuck and Tuck (1981) FLC 91-021). In Henderson and Henderson; Henderson (Intervener) (1989) FLC92-011, the Full Court of the Family Court made it clear that the equivalent at the time of s.66L should not be given an unduly restrictive interpretation.
The Court must have regard to the child’s income and earning capacity (Mercer and Mercer (1976) FLC 90-033, Gamble and Gamble (1978) FLC 90-452). Section 66J(1) of the Act requires the Court to take into account the proper needs of the child and “the income, earning capacity, property and financial resources of the child”. In determining the financial support that is necessary for the child, the Court must disregard the entitlement of any adult child to an income-tested Commonwealth benefit (Smith and Wickstein (1996) FLC 92-714).
The Court may take into account the nature of the relationship between the parent and the child (Mercer and Mercer, Oliver and Oliver (1977) FLC 90-227, Gamble and Gamble, H and H (1981) FLC 91-083). This is a matter of considerable relevance in this case.
The matter was touched on by Asche J in Oliver, where a daughter whose relationship with her father was described as “a relationship of politeness rather than affection”.[iii] Asche J took the view that the evidence did not convince him that there was a “relationship of hostility”, referring to the decision of Watson J in Mercer:
“There may be circumstances where the conduct of a child might make it incorrect for the court to make an order for maintenance but that conduct would have to go much further than any conduct shown here”[iv].
In Mercer and Mercer, Watson J took a strong view of the behaviour of a son aged over 18 towards his father, from whom maintenance was sought for the purpose of continuing the son’s tertiary education:
“However, there is another factor – that of his own conduct towards his father. Here is an adult who has been granted by legislation the right to seek the financial support of another adult – his father. If he says to his father that the latter has forfeited all paternal rights and is only a good friend – nothing more or less – does he not himself destroy the very basis upon which his claim can be founded? An adult son cannot demand a slice of the paternal cake with one breath and spew out filial abnegation with the next. I hold this to be a fact or circumstance which, in my opinion, the justice of the case requires to be taken into account.”[v]
Against this, in Gamble and Gamble Fogarty J said that he doubted whether the intrusions of such considerations were appropriate.
Smithers J looked at this issue in H and H (1981) FLC 91-083. His Honour took this view:
“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. It seems to me that these are the basic assumptions behind sec. 76(3).[vi]
In such circumstances, I believe that the attitude of an adult child to his father can be a matter of relevance in relation to a claim under sec 76(3). In many cases, it is likely to be of little relevance.”[vii]
It would appear that the attitude of an adult child toward a parent from whom maintenance is sought will not be relevant in most cases. If the relationship is strained, or polite but distant, the Courts would normally not see that as a disqualifying factor. It would normally only be those cases where the adult child had deliberately rejected the parent or intentionally cut off the relationship that the Court would be persuaded that his or her attitude to the parent should be not entitle him or her to look to that parent for support. In Wells and Wells [2002]
FMCAfam 253, which was a case where there was no contact between two adult daughters and their father, I found that there was evidence that one of the daughters wanted nothing to do with her father and declined to make a maintenance order in favour of that daughter. Whilst there was evidence that the younger daughter was also estranged from the father, it was clear that she had not sought to discontinue the relationship. Despite the estrangement at the time, an order for maintenance was made in respect of that adult daughter.The Court must also take into account the income, earning capacity, property and financial resources of each of the parties.[viii] Subsection 66K(4) sets out the matters that the Court must disregard:
“(a) any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and
(b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.”
Section 66K(2) requires the Court to take into account the capacity of a party to earn and derive income. It was held in In the Marriage of Stojanovic (1990) 13 Fam LR 849; [1990] FLC 92-134 that the husband’s capacity to seek work, his failure to seek employment actively, and his strong financial resources justified an order for the payment of maintenance even though he was unemployed. The section also allows the Court to take into account any assets of a party that are capable of producing income, even though they may not be producing any income at the time (see also In the Marriage of Vartikian (No. 2) (1984) 10 Fam LR 165).
Conclusions
The course chosen by S M appears to be one for which he is qualified and will lead to a Bachelor’s degree in Personal Development, Health and Physical Education. I am satisfied that this course, would lead to employment as a physical education teacher. I am equally satisfied that studying to be a physical education teacher is an appropriate course for a young person. At the same time, some of his expenses are brought about by the fact of his involvement in athletics at a senior level, and the evidence does not establish that it is necessary to have such an involvement as part of a course leading to become a teacher of physical education.
It is also a relevant factor that the course in which this young man is involved is expensive, and, on the evidence before me, a more expensive course than many other aspiring teachers of physical education undertake. He is not able to undertake a course at a State university because the subjects he took for the Higher School Certificate did not give him the necessary UAI score. As a result, he cannot defer his fees under the HECS scheme.
The fees for the College amount to $6,500.00 per semester, or $13,000.00 per annum. He receives a scholarship allowance of $1,625.00 per semester, or $3,250.00 per year. This leaves him to find another $9,750.00 per year, just for his college fees. His mother’s income is derived solely from the disability pension of $208.15 per week, and he receives a youth allowance of $99.15 per week. Disregarding those amounts, as required by s.66K, the only other income is S average of $40.00 per week from working at
K M. Even after the scholarship, the course fees alone amount to $187.50 per week. On those figures, it is hard to see the undertaking of a course costing that amount could ever have been realistically contemplated without some other financial assistance. Paragraph 17 of the Applicant’s Form 12 application shows her average weekly expenses as $92.00 and S as $535.00, a total of $627.00 per week. The total income for the Applicant and S, including disability pension and youth allowance, amounts to only $347.30 (from the affidavit evidence) or $363.60 (from paragraph 15 of the Form 12). Either way, there is a weekly shortfall of between $279.70 and $263.70. It is this shortfall that presumably explains the Application that the Respondent pay $300.00 per week by way of maintenance.
Whilst some young people take a year off and work, the Applicant gave evidence that S did not want to take a break from his studies, so he went straight to the college. There was no challenge to the Applicant’s evidence that S college timetable did not allow him to undertake any other employment other than the weekly shift at
K Mart. The figures given do not support the view that going straight into a course costing $187.50 per week for fees alone was ever a realistic option.
The evidence shows that the Respondent does not have the capacity to pay the $300.00 per week sought, or anything approaching that figure. He had been paying child maintenance at the relatively low rate of $38.00 per fortnight until S turned 18 in June 2001. To make up the shortfall between income and expenditure, the Respondent would have to pay maintenance in the sum of about $266.00 per week, about fourteen times the rate at which he had been paying previously. The evidence shows that he receives the maximum rate of Newstart allowance of $308.52 per fortnight. His 2001 Income Tax return showed a total income of $8,230.00 for the previous year. His current wife is also on an income tested pension, and she works for all of seven hours a week in a café. There do not appear to me to be any special circumstances that would warrant taking her relatively modest earnings into account.
The farm on which the Respondent and his wife live has not been shown to produce any significant income, and there is evidence that the Respondent is seeking work, as required by Centrelink. His evidence is that there is virtually no work around in a country town in the middle of a drought for a man aged 57 years. He does not appear to have any particular qualifications. His stock are, according to his evidence, of no value. The arrange for an occasional beast to be slaughtered for food, as is not uncommon in rural areas. There is no evidence that he or his present wife have any surplus funds. Indeed, the Respondent’s wife gave evidence that the money put by for her funeral has gone to pay counsel’s fees.
It is hard to see how the Applicant could have formed the belief that the Respondent had the funds necessary to pay a maintenance order in the amount that she seeks. It was known to her, from the Terms of Settlement which she signed in respect of the maintenance proceedings at K Local Court in November 1992, that the Respondent was financially struggling in those days. A reading of the Terms of Settlement, annexed to the Respondent’s affidavit, allows the following inferences to be drawn:
a)that there were arrears of child maintenance;
b)that the Respondent was then unemployed; and
c)that his annual income did not exceed $7,842.00 per annum.
The matter was settled on the basis that the arrears of maintenance were reduced to nil and that the Respondent would make future payments of maintenance of $8.00 per child per week for each of three children, a total of $24.00 per week. This, from my memory, was not a large sum in 1992, nor was $7,842.00 anything other than a low income at that time.
Very little seems to have changed, except that the Respondent’s liability to pay child maintenance ceased in June 2001 and he has made the last hire purchase payment on his truck. Otherwise, he is unemployed and living on the same farm. It does not appear to me that he has any capacity to pay other than a token amount.
It was clear to the Applicant and her legal advisors from the Respondent’s affidavit of the 5th September, filed on 16th September 2002, that it was the Respondent’s case that he had little if any capacity to pay. Subpoena had been issued to the Respondent and his current wife, returnable on 18th September 2002, seeking copies of Income Tax Returns and other financial documents. Both the Respondent and his current wife produced documents in answer to those subpoena. The only subpoenaed document tendered in evidence was copy of the Respondent’s 2001 Income Tax Return, and this was tendered by Mr Givney on behalf of the Respondent.
The evidence leads to the inference that the Respondent has no capacity to pay anything other than a token amount of maintenance.
I am not satisfied that he has the capacity to pay the sum of $300.00 per week claimed in the application, or even half that amount. The sad fact is that the Applicant’s own figures show that unless an amount exceeding $200.00 per week can be paid that S cannot continue to attend the Australian College of Physical Education.
Turning to the question of the lack of contact between the Respondent and his son, I have already referred to the fact that this is not necessarily a bar to a parent being required to pay maintenance for an adult child. Indeed, there must be shown to be good reason for a court to take the view that the child’s attitude to the father would disentitle him or her to claim for maintenance. In Re C (No.2) (1992) FLC 92-284, a decision of Fogarty J in the Family Court, a Respondent father was ordered to pay an amount of maintenance for his then adult son with whom he had had very little to do. The facts were that the young man’s mother refused to allow him to be made aware that the Respondent was his father. Fogarty J considered the decisions in Mercer, Oliver and Gamble, and found that even though the father and the child were strangers to each other, this was due to the conduct of the parents. The child was described as “an innocent bystander to these events for almost 18 years” (until DNA tests were carried out).[ix]
I consider that this case can be distinguished. It is clear from the Applicant’s evidence that S has not sought to have any contact with his father. The Applicant made her animosity to the Respondent clear when she referred in her evidence to the fact that he had “abandoned” them. It is hardly surprising that S M should have adopted his mother’s views, since he has lived with her all his life and has had no contact with his father. He made it clear that he does subscribe to her views, when he told the Court that he had not sought to have any contact with his father, who knew where he lived, saying “We haven’t changed our address at all”. It is clear that the Respondent has not changed his address in the last ten years, either. His address given on the November 1992 Terms of Settlement is the same address as he has now.
This young man knows who his father is and has not sought to have contact with him. The Respondent paid child maintenance, albeit at a very low rate, until his son reached the age of 18 years. The son has not sought to have any relationship with his father, and I am not satisfied that he can look to his father for financial assistance now that he is an adult. As Smithers J said in H and H:
“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.”[x]
In any event, I am not satisfied that the decision to undertake this expensive tertiary course was ever a realistic financial decision. I am also satisfied that the Respondent has not been shown to have a capacity anywhere near the amount sought or the amount required to meet this young man’s expenses in undertaking this course. It appears to me that he has not been shown to have the capacity to pay any more than a token amount of maintenance, if that. Payment of a token amount of maintenance will not permit this young man to continue to meet the fees of the Australian College of Physical Education. I accept the fact that this may cause this young man some hardship, and will almost certainly cause him some anguish, but the evidence points to the fact that his commencing this course without anywhere near sufficient funds was an unrealistic enterprise.
It follows that the application must be dismissed.
It is most regrettable that this young man was ever involved in this application. He had never seen his father until the day of the hearing, and it would have been emotionally difficult for him to see his father for the first time as a respondent in a court. At one stage, the father could not remember the month in which his son attained the age of 18 years. Whilst this was understandable for a man who had never seen his son at all, this evidence was obviously distressing for the young man.
The Applicant clearly feels animosity towards the Respondent, even after twenty years. It is unfortunate that her son had to be involved in these proceedings. I note that the Respondent’s counsel indicated that he did not wish to cross-examine the young man, and he was only called to give oral evidence to answer a particular matter which arose in the evidence. I also note that the Respondent made no critical comment about his son in his evidence at all. The Respondent, of course, is open to the criticism that he could have tried harder to have contact with the son he had never seen until the day of the hearing.
Whilst it may be argued that S M is now an adult and presumably gave evidence in these proceedings of his own free will, I do not believe that it was in his interests to do so. It is well known that young people often have a greater confidence in their abilities than is really the case, and at times older adults with more experience need to give wise advice.
It was always going to be emotionally difficult for a young man of
19 years of age to attend court to give evidence against a father whom he had never seen before. It should also have been clear that the application never had more than an outside chance of success. It is most regrettable that he went through this emotionally painful and ultimately futile exercise.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 3 October 2002
[i] Applicant’s affidavit sworn 8 July 2002, Annexure G
[ii] Respondent’s affidavit sworn 5 September 2002, paragraph 4
[iii] at 76203
[iv] also at 76203
[v] at 75131
[vi] now repealed, replaced by s.66H and since replaced by s.66L
[vii] at 76,575
[viii] s.66K
[ix] at 79,110
[x] (1981) FLC 90-083
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