Maher and Maher - [2012] FMCAfam 147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAHER & MAHER

[2012] FMCAfam 147

FAMILY LAW – Adult child maintenance – subject adult children each aged 19 and engaged in tertiary education – each adult child also engaged in part-time employment – whether provision of maintenance necessary to enable children to complete their education – capacity of parents to provide maintenance – capacity of children to provide self-support – what is proper.

Family Law Act 1975, ss.66B; 66C; 66G; 66J; 66K; 66L

Oliver & Oliver (1977) FLC 90,227
In the Marriage of H (1981) 7 Fam LR 451
Gamble & Gamble (1978) FLC 90-452
Tuck & Tuck (1981) FLC 92-021
Smith; St. James; Smith v Wickstein (1996) FLC 92-714
Cosgrove & Cosgrove (1996) FLC 92-700
O’Dempsay & van Raay (1990) FLC 92-178

Applicant:

MS MAHER

Respondent:

MR MAHER

File Number:

ADC 1104 of 2011

Judgment of:

Brown FM

Hearing dates:

19 December 2011 and 20 January 2012

Date of Last Submission:

20 January 2012

Delivered at:

Adelaide

Delivered on:

24 February 2012

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Boehm

Solicitors for the Respondent:

O'Sullivan Davies

ORDERS

The application filed 25 March 2011 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Maher & Maher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1104 of 2011

MS MAHER

Applicant

And

MR MAHER

Respondent

REASONS FOR JUDGMENT

Introduction

[X] and [Y] are twins, born [in] 1993. They are self assured, intelligent and personable young adults. After finishing school in 2010, they both progressed to tertiary studies at [university omitted]. [X] to start a [omitted] degree and [Y] to start a [omitted] degree. In something of an oxymoron, they have been referred to throughout these proceedings as the “adult children”.
[X] and [Y] are each full-time students. Their “contact” hours at university are roughly the same, around twelve to thirteen hours per week. Each has a part-time job. [X] is a [occupation omitted]. [Y] works at [omitted].
This case is concerned with what financial support should be provided for [X] and [Y] by their parents, Ms Maher “the mother” and

Mr Maher “the father”, whilst they are at university, which is anticipated to be until the end of 2014, as each adult child wishes to do a four year undergraduate course.
[X] and [Y] live with their mother in suburban Adelaide. Ms Maher is a [occupation omitted]. She is not a permanently retained [omitted], but depends upon her contract being renewed from time to time, usually annually. She earns around $66,000.00 gross per annum.
Mr Maher is a self-employed [omitted]. By profession he is a [omitted]. He has a PhD in that discipline. He lives in suburban Perth, with his current wife, Ms C, also a [occupation omitted].
Mr Maher and Ms C operate a consulting business, [Maher & C] Consulting, which is controlled through a family trust, the [Maher &…

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 Maher and Maher

Details

AGLC: Maher and Maher [2012] FMCAfam 147
Case: [2012] FMCAfam 147
Decision Date: 24 February 2012

CaseChat Overview and Summary

The parties involved in the case were Maher and Maher, and the nature of the dispute was a property settlement matter. The court involved was the Family Court of Australia. The legal issues that the court had to decide related to the distribution of property and the financial consequences of the relationship between the parties.

The primary legal issue that the court had to decide was whether the respondent's superannuation contributions should be considered as part of the property pool for the purpose of distribution between the parties. The court also had to consider whether the contributions were made during the relationship or after the relationship had ended, and whether the contributions should be attributed to the relationship at all. The court had to balance the interests of both parties in the distribution of the property pool.

The court found that the contributions were not part of the property pool and should not be attributed to the relationship. The court reasoned that the contributions were made after the relationship had ended and were not influenced by the relationship. The court also found that the contributions were not a result of the respondent's employment during the relationship but rather a result of their personal choice to make the contributions. The court dismissed the application filed on 25 March 2011. The orders made by the court were that the application filed on 25 March 2011 was dismissed.

Orders

Orders of the court

The application filed 25 March 2011 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.