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 & C] Family Trust. Much of this case has centred on the level of income which this business generates for Mr Maher.
The other major issue in the case centres on what level of income [X] and [Y] each personally generate and to what extent they should provide their own financial support, now they are over eighteen and no-longer technically children.
In the financial year ending 30 June 2011, the profit and loss statement for the [Maher & C] Family Trust, indicates that the business generated income of $150,036.73.[1] This profit and loss statement also indicates that the expenses incurred in earning this sum amounted to some $47,998.96.
[1] See exhibit E
This left a profit of $107,037.88, which was divided equally between Mr Maher and Ms C. At the present time, Mr Maher estimates that his weekly income amounts to around $1,029.00, prior to tax. This equates to an income of around $53,500.00 per annum.
The mother is the applicant in these proceedings. It is her case that she is funding the adult children to attend university from her modest income, with no financial contribution from the father whatsoever. She asserts that this situation is neither proper nor fair.
In these circumstances, she seeks an order from the court requiring Mr Maher to pay her the sum of $400.00 per fortnight as long as the adult children remain in full-time tertiary study. She wishes this order to commence from 9 February 2011, the date on which the adult children turned eighteen and necessarily Mr Maher’s liability to pay child support, pursuant to the legislative provisions contained in the Child Support (Assessment) Act 1989 ceased.
It is Mr Maher’s position that he does not have the financial resources to pay this sum. In any event, he asserts that both adult children, now they have attained their legal majority, have the attributes and ability which enable them to significantly provide their own necessary financial support.
As such, he asserts that it is neither “necessary” nor “proper” for the court to make the adult child maintenance order which Ms Maher seeks. In all these circumstances, he seeks the dismissal of the mother’s application.
Mr Maher and Ms Maher have been separated for many years. As a consequence, Mr Maher was liable to pay child support for [X] and [Y] from 1995 onwards. For the majority of this period, the parties and the adult children concerned, lived in Perth.
In 2007, there were controversial proceedings conducted in the Family Court of Western Australia, arising from the mother’s wish to relocate herself and the children to Adelaide. These proceedings were resolved in the mother’s favour.
This was a source of considerable regret for the father, who believes that [X] and [Y] were likely to have benefited from remaining in Perth and so having familial support from him and their older step-brothers and sisters. Mr Maher is the father of seven other adult children. He also has five grandchildren. All these children live in Perth.

The Evidence

These proceedings were vigorously contested. It is my impression that there is a poor and mistrustful relationship between Mr Maher and

Ms Maher. Initially, it was Mr Maher’s assertion that neither [X] nor [Y] wished to be associated with their mother’s application. On this basis, he sought the summary dismissal of the mother’s application.
I was not prepared to make such an order. However, as a consequence of it, Ms Maher, who had acted on her own behalf throughout these proceedings, arranged for [X] and [Y] to each file an affidavit in the proceedings. As a consequence, they each became witnesses in the proceedings supporting their mother’s application.
Regrettably, as a consequence of this, both [X] and [Y] gave oral evidence in the case and each was cross-examined by counsel for the father, Mr Boehm. After they had given their evidence, each adult child remained in court, as they were each entitled to do, to observe their father’s evidence.
The respective positions of the parties are polarised in the extreme. As such, they are unable to see the point of view of the other or find any basis for compromise. I remain concerned for the psychological implications of this unfortunate situation for both [X] and [Y]. The intense conflict between the parties, which is centred on financial issues relating to each of them, must test the bonds of loyalty and love they have for each of their parents.
The mother relies on the following documents:
i)Three affidavits of herself filed on 25 March 2011, 24 June 2011 and 6 October 2011 respectively;
ii)An affidavit of [X] filed 6 October 2011; and
iii)An affidavit of [Y] filed 6 October 2011
The father relies on the following documents:
i)Two affidavits of himself filed on 21 July 2011 and 5 December 2011 respectively;
ii)Three statements of his financial circumstances filed on 21 July 2011, 5 December 2011 and 20 January 2012.
The mother was an honest and credible witness. I have no doubt that she has accurately set out her current financial position and has provided an exhaustive disclosure of her current financial circumstances. However, it is my view that she is not objective about the father’s financial circumstances. It is her position, I think, that

Mr Maher enjoys significant financial advantages as a result of his self-employment and is markedly better off than she is.
In addition, it rankles with her that Mr Maher does not utilise his PhD qualification in a way which would result in him earning a higher income. She also doubts the bona fides of the family trust mechanism by which income is divided between Mr Maher and Ms C equally. It is her perception that Mr Maher effectively earns the money distributed through the trust as a consequence of his consulting work and superior expertise to Ms C.
In addition, Ms Maher doubts the quantum of the expenses delineated in the balance sheet for Mr Maher and Ms C’s business. She believes that many of these expenses are artificial in nature and have been created through “creative accounting” to reduce Mr Maher and Ms C’s level of income.
Ms Maher had access to Mr Maher’s bank account and credit card statements. However, she is not a qualified accountant nor did she provide a detailed audit of these various documents. She did however query Mr Maher’s level of expenditure on such things as his motor vehicle; holiday expenses; money spent at Bunnings; and on the purchase of wine.
I did not find these lines of questioning particularly helpful. It is not my role to direct how individuals are to spend the moneys derived by them through there own personal exertion. The major result of this cross-examination by Ms Maher was to persuade me that Mr Maher’s lifestyle is unexceptional. Certainly, I do not accept that he leads an extravagant or extraordinary lifestyle, which can only be supported by a far greater level of income than that which has been disclosed by him.
In particular, I accept his evidence that he buys wine in bulk, which he distributes to relatives and friends through a Wine Club and is reimbursed later. I also accept that he is renovating and repairing his home and this accounts for his level of recent expenditure at Bunnings. In addition, I do not consider it unreasonable that Mr Maher has travelled to [omitted] in south east Western Australia for weekend holidays. Similarly it was not unreasonable for him to stay in a hotel in Adelaide, when he visited this city to celebrate [X] and [Y]’s eighteenth birthday.
Ms Maher had carefully combed Mr Maher’s credit card statements to identify expenses which she considered unwarranted. Mr Maher had ready and reasonable explanations for all these challenged expenses. Ms Maher also asserted that Mr Maher was able to channel significant sums into the mortgage secured against his home.
Mr Maher acknowledged that money was parked in the mortgage account, which is linked to a line of credit. Monies received from clients is deposited into this account for as long as possible before it is defrayed on paying tax (particularly GST) and other business expenses. The aim being to reduce the interest accruing on the mortgage.

Mr Maher described this as a prudent use of money and denied that there was anything untoward about it. I accept his denial in this regard.
In my assessment, Mr Maher also was an honest and transparent witness. I do not accept that he has, in any way whatsoever, attempted to hide his true financial circumstances. My finding is that he leads a modest life and cannot be considered to be well off, although he is financially secure.
Although I think Ms Maher believes that Mr Maher could obtain better remunerated employment, she did not put specifically to Mr Maher what this employment would be. Her case relies on innuendo and suspicion. On the basis of my assessment of Mr Maher’s credibility and my view that he has been honest in his financial disclosure, these suspicions cannot be sustained.
On the other hand, I can fully understand Ms Maher’s position. She shares a household with two teenagers, who necessarily have many needs and desires, which cost money to satisfy. Given the intimacy of her relationship with [X] and [Y] and the proximity of the adult children to her, it is not possible for her to ignore the financial needs of [X] and [Y].
Accordingly, they are a constant financial drain on her resources. In such circumstances, it is only natural that she would feel aggrieved that Ms Maher escapes “scott-free” so far as [X] and [Y] are concerned, particularly as he contributed financially for the children up until their eighteen birthday.
In the opening paragraph of these reasons for judgment, I provided my impressions of [X] and [Y]. I have also indicated my view that it was highly regrettable that they had to give evidence in these proceedings. Whatever criticisms their parents have of one another, it appeared to me that [X] and [Y] love both their father and mother. Certainly, this is not a case where the relationship between a parent and an adult child has been severed.
As I have already indicated Mr Maher travelled to Adelaide to celebrate twins’ eighteenth birthday. One of the consequences of the two day hearing of the case was that Mr Maher could also spend time with [X] and [Y], when the case could not be completed, when it was listed, prior to Christmas. I accept that he would dearly wish to spend more time with them in future.
[X] and [Y] were placed in an invidious position. However, they dealt with this situation calmly and assuredly. They were each entirely honest and frank about their current situation. In particular, each made the concession that they would continue in full-time study, at [university omitted], regardless of the outcome of these proceedings.
In these reasons for judgment, findings of fact are made on the balance of probabilities following my observations of each of the witnesses concerns. In what follows, statements of fact constitute findings of fact.

The legal principles applicable

As [X] and [Y] are over 18 years of age, the question of what level of financial support is to be provided to them, by their parents, is no longer covered by the provisions of the child support legislation. Rather the provisions of the Family Law Act apply.
Part VII of the Family Law Act is the part of the Act which deals with the law relating to children. Division 7 of Part VII deals with child maintenance orders in particular.
Section 66L(1) deals with the maintenance of children aged 18 years and over. It reads as follows:
“   (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.”
This section was inserted into the Family Law Act as a result of the Family Law Reform Act 1995. Prior to this amendment, the applicable section dealing with adult child maintenance provided the relevant courts with a discretion to make an adult child maintenance order if satisfied it was necessary to make such an order to enable a child to complete his or her education.
Accordingly the legislature has more closely confined the discretion arising from the section. The court is directed not to make a child maintenance order, in respect of a child over 18 years of age, unless the delineated conditions are satisfied. Asche J described this, in respect of the earlier provision, as being a “broad directive” to the court not to make an adult child maintenance order. This broad directive not to make an adult child maintenance order, he further characterised as being the “general rule”. [2]
[2] Oliver & Oliver (1977) FLC 90,227 at 76,202
Accordingly, the liability of parents to contribute to the maintenance of their children is generally limited to children under the age of 18 years. In The Marriage of H,[3] Smithers J said as follows:
“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.”
[3] See In the Marriage of H (1981) 7 Fam LR 451 at 465
In Gamble & Gamble [4] another case which predates the 1995 amendment, Fogarty J identified two significant features which he deemed to be relevant to the making of an adult child maintenance order. He said as follows:
“… firstly that the provision of maintenance must be necessary as distinct from being desirable and secondly that there is a distinction to be drawn between the imposition of a legal liability upon a father in such circumstances and the question of whether as between father and son or daughter the providing of some assistance may be the socially proper thing to do.”
[4] Gamble & Gamble (1978) FLC 90-452 at 77,304
In Tuck & Tuck,[5] the majority of the Full Court (Evatt CJ and Murray J) said that:
“Necessary in this context means 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.”
[5] Tuck & Tuck (1981) FLC 92-021
It is clear from authority that the expression “child” used in section 66L(1) refers to a concept based on relationship rather than age. As such, it has been held by the Full Court of the Family court that the other legislative provisions, contained in Division 7, apply to applications brought under section 66L.[6]
[6] See Smith; St. James; Smith v Wickstein (1996) FLC 92-714
In Cosgrove & Cosgrove,[7] Warnick J considered that section 66L places a discretion in the court as to whether a maintenance order should be made in respect of a child over eighteen years of age, which is to be informed by the other provisions of Division 7 and, in particular, section 66G, which empowers the court to make any child maintenance order it considers proper.
[7] Cosgrove & Cosgrove (1996) FLC 92-700
Section 66B sets out the objects of the division. The principle object is to ensure that children receive a “proper level of financial support from their parents.” More particularly the court is 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 their parents; and that parents share “equitably” in the support of their children.
Section 66C places the primary duty of maintaining children upon the parents of those children. This duty has priority over all other commitments a parent has other than those commitments necessary to support him or herself or any other children he or she has a duty to maintain.
The approach the court must take in assessing a child maintenance order (including an adult child maintenance order) is set out in section 66H. It is essentially a two step process. Firstly, the court must consider the level of financial support necessary for the maintenance of the child concerned.
The relevant matters to be considered are set out in specific detail in section 66J. In particular, the court must consider the proper needs of the child concerned, bearing in mind the age of the child; the manner in which the child is being, and in which the parents expect the child to be, educated or trained; and any special needs of the child concerned.
In addition, the court must have regard to the capacity of the child to earn or derive an income but it must specifically disregard “any entitlement of the child or any other person to an income tested pension, allowance or benefit” [section 66J(3)(b)(ii)].

Secondly, the court must determine what contribution each parent should make to providing that financial support. The matters to be considered specifically in regards to this second step are set out in section 66K.
In particular, the court must consider the income, earning capacity, property and financial resources of the parents concerned and his or her necessary expenses. Again, the court must disregard any entitlement of the child concerned, or the person with whom the child lives, to receive an income tested pension, allowance or benefit [section 66K(4)].
Ms Maher’s application, so far as [X] and [Y] are concerned, is one based on section 66L(1)(a). She seeks maintenance from Mr Maher to enable [X] and [Y] to be able to complete their education.
Education is defined in section 4 as including apprenticeship or vocational training. Accordingly the definition appears to be a wide one. In O’Dempsay & van Raay,[8] Butler J said that “education” included:
“The general equipping of a young person for the tasks of life, this being training for any skill needed for that purpose.”
[8] O’Dempsay & van Raay (1990) FLC 92-178 at page 78,205
In this case, both [X] and [Y] are currently engaged in a course of tertiary education at [university omitted] – in [X]’s case a degree in [omitted], in [Y]’s case a degree in [omitted]. Mr Maher does not suggest that these courses are anything other than a course of education.
In Cosgrove,[9] Warnick J considered that the following matters were likely to bear upon the exercise of the discretion to make a maintenance order in respect to a child over eighteen years of age:
[9] Cosgrove & Cosgrove (supra)
“(i) whether the “nexus” of dependence between the child and parents had ceased and the application amounts to a “resurrection” of that dependence;
(ii)the period between initial cessation of dependence (if any) and the application;
(iii)whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself;
(iv)other assistance, benefits or education which the child has received;
(v)the ability of the child to complete the course in question;
(vi)the likelihood of the child completing the course in question;
(vii)the financial capacity of the child to maintain himself/herself to the completion of the “education”;
(viii)the financial circumstances of those persons responsible for support of the child (generally the parents);
(ix)the filial relationship between the child and the person from whom maintenance is sought.”
To be necessary, adult periodic child maintenance must not be “absolutely essential” for the adult child concerned to complete his or her education but the basis of its necessity must be more than it is morally or socially desirable. Accordingly, any consideration of what adult child maintenance order is appropriate must be informed by an objective standard of what is reasonable in the particular circumstances prevailing.
In some cases involving adult child maintenance, there may be some means by which such an adult child could finance his or her education. These include deferral of studies; part time employment; or part time study.
The question for the court is, when balancing the parents’ resources and the child concerned’s actual and potential resources – what is reasonable? The list of matters provided by Warnick J in Cosgrove is not an exhaustive list of the possible factors to be taken into consideration in this regard.
As previously indicated, there is no doubt that the balance of the legislative provisions contained in Division 7 apply to an application brought under section 66L.[10] Essentially the determination whether to make an award of adult child maintenance and its quantum do not turn solely on the contents of section 66L.
[10] See Smith; St. James; Smith v Wickstein supra
Accordingly, in assessing whether it is proper to make an award of adult child maintenance, in [X] and [Y]’s favour, I am directed by section 66J(3) to disregard their entitlement to an income tested pension, allowance or benefit and, pursuant to section 66K(4) to disregard the mother’s entitlement to such an income tested, pension, allowance or benefit.

[X] and [Y]’s financial needs and capacity to earn

[X] did well in the first year of [omitted] degree, earning two passes and two distinctions. She wishes to do an honours year, after three years of undergraduate study. She passed her course whilst pursuing part-time employment and without any direct financial support from her father.
[X] will have eleven hours of lectures and workshops in 2012, mostly in the mornings. She has [omitted] classes on Monday and Wednesday. She works currently, between 25 and 40 hours per week as a [omitted].
[Workplace omitted] is open for [hours omitted] and [X] has worked morning, afternoon and evening shifts. In answers to questions from me, she conceded that she was a popular member of staff at [omitted] and the management of the [workplace] were happy to arrange her working hours around her university commitments, including at exam and assessment time.
[Details of workplace omitted.] Accordingly, it is busier in the warmer months than in winter. In winter, [X] estimates that she works between 12 and 20 hours. She is able to significantly increase her working hours during the long university vacation.
[X] pays a modest amount of board to her mother ($50.00 per week); has mobile and internet expenses of around $20.00 per fortnight; allows herself up to $70.00 per week for entertainment; and takes the bus to university at a cost of $15.00 per week.
I accept that the mother subsidises [X]’s lifestyle to some extent. [X] has taken some modest interstate holidays with her boyfriend and seems to have an unexceptional social life. She buys and sells clothes on Ebay, which is unremarkable.
In her circumstances, [X] has been able to save a modest amount of money, around $2,000.00 at present. As at 8 January 2012, she had earned $9,520.57 in the financial year commencing 1 July 2011. Her hourly rate is $16.50.
[X] has been able to purchase herself a motor vehicle for the sum of $2,950.00. This has been financed by a loan from the Commonwealth Bank, which she will repay at the rate of $63.00 per week. She will use some of her savings to pay for insurance.
As well as providing her with some measure of security, the vehicle will enable her to travel more easily to [workplace omitted]. I would expect that this will give her more flexibility in the hours of work she can accept. [X] is likely to continue living at home for the foreseeable future.
[X] is a mature, pleasant and capable young person. She began her working career, at [omitted], when she was fifteen and has been employed ever since. In my assessment, given her experience and personal attributes, it is likely that she will be able to obtain part-time employment, in hospitality, for the indefinite future, certainly until she has completed her undergraduate degree.
It is also apparent to me that [X] has a capacity to budget and is careful with her money. Given her previous work history at [omitted], I estimate that she has the capacity to earn around $18,000.00 per annum without affecting her studies or unduly impinging upon the precious years of youth.
[X] conceded that it was something of an exaggeration to suggest that she would have to cut classes or reduce her hours of study if she did not receive some level of financial support from her father in future. The truth is manifestly otherwise, given [X]’s demonstrated ability to work and study successfully during 2011.
[Y] also had a successful first year, passing all her subjects. She will have around thirteen contact hours at university in 2012, which will be spread out over four days. She estimates that she will do an average of eighteen hours private study per week.
Like [X], [Y] started work at [omitted] when she was fifteen years of age. She still works at [omitted]. At present she is a [omitted]. [Workplace omitted] arranged for her to undergo a training course to become a [omitted].
[Y] agreed with my assertion that her [omitted] skills were likely to assist her in obtaining a similar position in [the hospitality industry]. However, at the present time, she has no firms plans to leave [omitted] and is understandably reluctant to encroach upon her sister’s territory by attempting to obtain a job at [omitted].
[Y] deposed that her main criticism of [workplace omitted] was the unpredictability of shifts, particularly when she was free to work more hours. She was however able to work longer hours in the period around Christmas.
[Y] earns a similar hourly rate to [X] but is not working as many hours as her sister in the current financial year. She earned $10,500.00 in the financial year ending 30 June 2011. So far this year she has earned $5,040.07. [Y] would like to find a job with more consistent hours. She believes that she could work up to 25 hours per week.
In my somewhat superficial appraisal, [Y] is a little more diffident than [X]. However, I have no reason to think that she is not as equally capable as her sister of earning an annual income from part-time employment of around $18,000.00.
[Y] has similar expenses to her sister. She will also continue to live at home for the indefinite future. She does not own a motor vehicle and has no savings to speak of. She does however have a driver’s licence and uses Ms Maher’s vehicle from time to time.
Like her sister, [Y] is a mature young adult. In my assessment, she is the kind of person – a personable and intelligent university student – who would be seen as an attractive employment prospect in the restaurant and hospitality industry.
Like many university students, [X] and [Y] are engaged in part-time employment, whilst they pursue university studies. This assists them not only financially, but also gives them a wider experience of the world. At present, there is no evidence to indicate that this level of employment has adversely affected their course of study or is likely to do in the future. They have each been able to pursue the life of a student without any direct financial assistance from their father.
However, without doubt, [X] and [Y]’s lifestyle is subsidised by their mother, who provides accommodation, food and utilities for them. I accept that without this level of subsidisation, [X] and [Y] would not be able to survive financially on their current level of income and may very well have to re-think their tertiary education plans.
This is the most significant and central issue in this case. Is it proper for the mother to provide this level of subsidy – because of her love and commitment to the children and because the reality of her familial situation is that she can do nothing other because, with her joyful acquiescence, [X] and [Y] continue to share her household – without any direct contribution from Mr Maher, who lives far away from the children and is unable to be involved in the day to day incidents of their lives.
In a practical sense, from Ms Maher’s point of view, nothing changed in her household when the twins turned eighteen years of age other than that Mr Maher ceased to provide child support. The children remained students, who lived at home with her and accordingly were dependent on her for the provision of accommodation and nourishment.

The mother’s financial circumstances

Ms Maher is employed as a [occupation omitted]. She has been at [workplace omitted], on a contracted full-time basis, since April 2008. There has been some uncertainty about whether her position will continue in 2012, but it seems that it will be retained.
In the financial year ending 30 June 2011 Ms Maher earned $69,037.21 gross. I anticipate that Ms Maher will earn a similar salary in the 2012 academic year and, given her level of experience, is likely to remain in full-time employment for the foreseeable future.
Although Ms Maher is in full-time employment, I accept her submission that she is not in a strong financial position as there are many calls upon her income. Her major expense is rent of the accommodation which she occupies with [X] and [Y]. This currently amounts to $650.00 per fortnight, or $16,900.00 per annum which equates to around twenty-five percent of her gross income.
In addition, she estimates that the household consumes food and household items at the rate of $600.00 per fortnight. [X] and [Y] obviously utilise their mother’s home as their accommodation and eat the majority of their meals at home. Between them, the twins contribute around $5,000.00 per annum to assist the mother with these costs. Accordingly, on any view, Ms Maher is providing a significant level of support, whilst [X] and [Y] attend university.
In addition, Ms Maher pays utility expenses and provides health insurance and other medical expenses for the children. As a consequence of these significant recurrent expenses, I accept that

Ms Maher leads a frugal life and has few assets of significant value. It is to Ms Maher’s obvious credit that she devotes so much of her finances to providing for her daughters. Undoubtedly she wishes for both [X] and [Y] to attain their full educational potential.
Given her circumstances and her devotion to the interests of [X] and [Y], I can well understand why Ms Maher is aggrieved that the burden of financially supporting the children falls so heavily on her, with no realistic contribution from Mr Maher. The situation was different prior to the twins eighteenth birthday when the provision of their financial support was apportioned formulaically between the parents pursuant to the provisions of the Child Support (Assessment) Act 1989.

The father’s financial circumstances

Mr Maher has qualifications in [omitted], including a PhD in that discipline. He describes himself as a [omitted].
His main area of interest is [omitted]. He also has a professional interest in [omitted]. However, as yet, he has not received funding to pursue research projects in these areas.
Accordingly, at the present time, he derives his income from [omitted]. The training he provides is in the area [omitted]. He is self employed and operates his consultancy with his current wife Ms C through a family trust and associated company [B] Pty Ltd.
Ms C is also a [occupation omitted]. Regrettably she suffers from rheumatoid arthritis so is unable to travel as extensively as Mr Maher, whose line of work requires him to travel throughout Western Australia. Ms C is involved in the administration of the business and is currently undertaking studies to enable her to provide [omitted]. In the longer term, both Mr Maher and Ms C would like to redirect their professional orientation towards counselling.
I have been provided with the profit and loss statement for the Maher and [C] Family Trust together with copies of Mr Maher’s recent bank account statements.[11] The main thrust of Ms Maher’s cross-examination of the father and her examination of these documents was that Mr Maher artificially split his income with Ms C and reduced his apparent level of income by setting off excessive expenses against it.
[11] See Exhibit D
I accept that there are benefits accruing to a person in self employment, particularly one who receives cash for services and who is able to combine personal and business expenses. However, I found Mr Maher to be a credible witness and in my assessment he has not artificially constructed his financial circumstances either to defeat a claim for adult child’s maintenance or for any other purpose.
In the financial year ending 30 June 2011 the business received gross consulting income of just over $155,000.00. The expenses claimed on earning this sum amounted to $47,998.96 leaving a net profit before tax of $107,037.88.
I accept that it is legitimate for this income to be divided equally between Mr Maher and Ms C. Accordingly, Mr Maher earns approximately $53,500.00 per annum. In his Statement of Financial Circumstances, he has calculated his average weekly income as being just over $1,000.00.
Among the expenses claimed by the trust, against its income, are motor vehicle expenses; telephone; computer expenses; and insurance. It is not inconceivable that some aspect of these expenses provide some personal benefit to Mr Maher and Ms C but I am not able to calculate the extent of any such benefit in dollar terms and, more importantly, I do not think it is significant.
In my assessment, on the basis of the evidence available to me, it is impossible to circumstantially extrapolate the conclusion that

Mr Maher leads an extravagant lifestyle which is incapable of being supported by his professed level of income.
Mr Maher owns a property with Ms C in suburban Perth. He values this property at $380,000.00. It is subject to a mortgage of around $200,000.00. The mortgage was recently extended to purchase a motor vehicle for $30,000.00.
I accept that Mr Maher is a professional person, who is well qualified. However, I can find no evidence that he is under utilising his skills or income earning capacity in any calculated way. In particular, no evidence has been led before me which indicates that Mr Maher has previously been a high income earner.
For these reasons, I accept that Mr Maher is a person of modest means and limited resources. At present, he estimates that his recurrent expenditure exceeds his recurrent income by a modest amount. His major weekly expense is his mortgage repayment, which amounts to $447.00. He has a tax liability of around $8,500.00 and significant credit card debts.
Mr Maher is better off than Ms Maher in the sense that there are fewer members of his household. In the past, he has provided some modest ad hoc payments to [X] and [Y], when he has been asked to do so by them.
This is not the sort of case where these has been a rupture in the paternal relationship between Mr Maher and [X] and [Y]. Like Ms Maher, the father loves the children and wishes them to succeed at university.
I was pleased that Mr Maher was able to spend some time with the children during the hearing of the evidence before me. As previously indicated, he and Ms C came to Adelaide for the twin’s eighteenth birthday. These matters indicate that there is an ongoing relationship between father and children.
At this stage, on the basis of a cold evaluation of Mr Maher’s finances, he has little, if any, capacity to provide for the children’s financial needs. However, the fact remains that prior to their eighteenth birthday Mr Maher was indeed providing some child support.
The parties chose not to examine their child support history in any great detail. However, this history has undoubtedly been highly controversial for both parents and each has sought in the past to review previous administrative assessments.
The most recent assessment, which I have ran, from 1 December 2010 to 8 February 2011 and utilised a child support income of $33,096.00 for Mr Maher and one of $56,813.00 for Ms Maher. This resulted in a child support assessment of $4,082.00 per year. This equated to $78.50 per week.[12] It is common ground that there are no arrears outstanding in respect of the child support.
[12] See Exhibit 2 to the affidavit of Mr Maher filed 5 December 2011
Although Ms Maher has not expressly argued as such, it is implicit in her position that this prior history demonstrates at least some capacity on Mr Maher’s part to provide child support. That of course is not the only issue in respect of her current application, which is brought pursuant to different legislative provisions to those previously applicable to child support.

Conclusions

The provisions relating to the assessment of adult child maintenance are fundamentally different to those relating to child support for children under eighteen years of age. In child support matters a formula is applied to the income of the parents concerned and the respective level of care provided by each of them to the relevant children. A statistically determined monetary sum, relating to the costs of self support, is also taken into account.

The intent of the various applicable formulae has been said to be that they will be more reflective of the actual needs of children affected by the child support system, given the rationale that they are based on actual empirical research regarding the costs of supporting children financially in Australia.
Statistical material routinely published by the Secretary to the Department of Human Services regarding the costs of providing for children, together with relativities to average incomes are central to the application of the child support formula.
No such formulaic approach is taken in adult child maintenance matters. The first task for the court to determine, in such matters, is whether the provision of adult child maintenance is necessary to enable the children concerned to complete their education.
Accordingly, there is no presumption that such an order should be made in all cases concerning children, who were previously covered by the child support system, who progress onto tertiary education after their eighteenth birthday.
This question of necessity is to be determined objectively from all the prevailing circumstances, including the parents’ financial circumstances and the income earning capacity of the children in question.
In my view, the experience of [X] and [Y], during their first year of tertiary studies, demonstrates that it was not necessary for them to receive any financial assistance whatsoever from Mr Maher to enable them to complete their studies. I have no reason to think that this situation will not continue as the twins progress through their second, third and honours years of tertiary studies.
[X] and [Y], in common with many other tertiary students, combine part-time work with full-time studies. They each earn a modest income, which funds their student lifestyle. They also make a small contribution towards the board, which their mother provides them. As such, I accept that Ms Maher significantly subsidises both [X] and [Y].
At this juncture, I accept that Mr Maher does not have any obvious surplus funds available to him to contribute towards the twins on-going living expenses. Although a professional person, I accept that he is not in a strong financial position.
No doubt, if the roles of the parties were reversed and [X] and [Y] were living in Perth, with Mr Maher, he and Ms C would make the same accommodation for the children as does Ms Maher.
It would be a question of needs must. Their household would expand, as does the mother’s, to provide for [X] and [Y]’s day to day needs. However, it does not seem to me to be proper to squeeze Mr Maher’s household financially to provide for [X] and [Y], when the evidence does not indicate any demonstrable surplus income on his part.
I can understand why Ms Maher would be aggrieved that she alone must suffer the restrictions on her finances, which is the natural consequence of the twins sharing a household with her. However, the case is not to be determined by what is socially desirable or by what an altruistic or self-sacrificing parent would do in the same circumstances.
In all these circumstances, I have come to the conclusion that it would not be proper for there to be an award of adult child maintenance made in this case. Accordingly, the application herein is dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 24 February 2012