Masterton and Masterton and Anor
[2012] FMCAfam 913
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASTERTON & MASTERTON & ANOR | [2012] FMCAfam 913 |
| FAMILY LAW – Adult child maintenance – subject adult child 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 Family Law Regulations (Regulation 12A(b)) |
| 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 Re: AM (Adult Child Maintenance) (2006) FLC93-262 Cosgrove & Cosgrove (1996) FLC 92-700 O’Dempsay & van Raay (1990) FLC 92-178 Mercer & Mercer (1976) FLC 90-033 |
| Applicant: | MS MASTERTON |
| Second Applicant: | MR M |
| Respondent: | MR MASTERTON |
| File Number: | ADC 1630 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Counsel for the Applicants: | Ms Read |
| Solicitors for the Applicants: | Gilbert Mattner |
| Counsel for the Respondent: | In person |
ORDERS
The respondent father Mr Masterton pay to the adult child Mr M maintenance to fund the adult child’s tertiary education at the University of (omitted) at the rate of $1,000.00 per semester commencing with the second semester of 2012.
The payment of the aforementioned adult child maintenance will be conditional on the adult child concerned remaining in continuous enrolment at the University of (omitted) as an undergraduate in the degree course (omitted).
The first such payment of maintenance is to be paid by the father within twenty-eight (28) days of the date of these orders to a bank account to be nominated by the adult child to the father and thereafter on the 1st of March and the 1st of August of each year thereafter until the adult child has either completed his undergraduate course of tertiary study or has withdrawn from same.
The adult child is ordered to provide to the father, as a condition of the payment of the adult child maintenance hearing, proof of his enrolment in each semester of study twenty-eight (28) days prior to the date required for the father to pay such maintenance.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Masterton & Masterton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1630 of 2011
| MS MASTERTON |
Applicant
And
| MR M |
Second Applicant
And
| MR MASTERTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for “adult child” maintenance. The applicants in the proceedings are Ms Masterton and Mr M.
Mr M[1] was born on (omitted) 1992. Accordingly, he will soon be twenty years of age. Currently Mr M is a university student, in the second year of a combined (omitted) degree, at the University of (omitted).
[1] I mean the applicant no disrespect but propose to refer to him throughout these reasons for judgment as Mr M. I prefer to refer to him by his given name because firstly this is how everyone concerned in the case has termed him and secondly, the expression “adult child” seems to me to be something of an oxymoron.
Mr M lives with his mother, Ms Masterton and his sister Ms C, who was born on (omitted) 1994 at Ms Masterton’s home in (omitted). Ms Masterton owns the property, subject to a modest mortgage. Ms C is in her final year of high school.
Ms Masterton is in poor health. She suffers from fibromyalgia, which causes her to fatigue easily. She also suffers from arthritis in her thoracic spine. This causes her chronic pain, for which she is prescribed morphine. Ms Masterton has been in receipt of a disability support pension for many years.
The respondent to the application is Mr Masterton. He is Mr M’s (and indeed Ms C’s) father and Ms Masterton’s former husband. Mr Masterton is employed by (omitted) as a (occupation omitted). He has been employed by the company for over twenty years.
Mr Masterton and Ms Masterton married on (omitted) 1990 and separated on 30 January 1999. Ms Masterton has not been formally employed since the parties separated.
Mr Masterton has been a PAYG tax payer. As such, his income has been readily ascertainable for the purposes of assessing child support payable by him for Mr M and Ms C. Ms Masterton ceased paying child support, for Mr M, when he turned eighteen years of age.
Mr Masterton continues to pay child support for Ms C, but the amount of his assessment has recently significantly reduced because Mr Masterton has arranged with his employer to perform his duties in a “job share”, which has reduced his income by approximately one half.
Mr Masterton was born on (omitted) 1953. He has had hip replacements on both his right and left side. He has been diagnosed with degenerative arthritis in his right knee.
In his employment, as a (occupation omitted), Mr Masterton works on (omitted) working out of the (omitted). He is required to work in confined spaces and to climb steep (omitted).
Mr Masterton has deposed that his age; issues to do with his health; and his desire to prolong his working life as long as possible; have compelled him to pursue part-time employment. A decision supported by his treating orthopaedic surgeon, Mr H, who has written as follows:
“I note that he [Mr Masterton] will be going to a job sharing situation and this is a very good decision given that over the years I have advised him that he will become more restricted in his ability to do the type of work that he does and he should therefore plan his work within the restrictions that he will have and which will increase with time.”[2]
[2] See letter of Mr H dated 19 March 2012 being annexure GM4 to the affidavit of Mr Masterton filed 3 May 2012.
Prior to his transition to part-time employment, Mr Masterton earned approximately $158,000.00 per annum. He now earns somewhere in the vicinity of $83,000.00 per annum.
However, on any view, this is significantly more income than is received in the collective household of his former wife, at the present time. Income comes into Ms Masterton’s household in four main forms, namely; her disability support pension received from Centrelink; Child Support for Ms C received from Mr Masterton; Youth Allowance attributable to both Mr M and Ms C; and any income received by the children from part-time employment.
Mr M is currently a full-time student. His “contact” hours at university are roughly around eleven hours per week. He undertakes four subjects currently. In addition to his hours of direct lectures and tutorials, it is expected that he will study his subjects in between classes; submit written material for assessment; and prepare for his regular examinations. In addition, given his age, it is not unreasonable that he should have some form of social life and be able to engage in activities available on campus.
Besides his full-time tertiary studies, Mr M also engages in part-time employment, as a (omitted), at the (omitted) in (omitted). He works approximately forty hours per fortnight depending on the time of year and his other commitments. In the last financial year ending 30 June 2012, he earned $17,140.00 gross.
It is the position of the applicants that it is onerous to expect Mr M to keep working the hours which he does, whilst engaging in full-time studies. Ms Masterton rejects any suggestion that Mr M is capable of supporting himself financially, as a full-time student, through his part-time employment. Ms Masterton puts it as follows, in her affidavit material:
“… the assertion that a student can make good their own transport and income with respect to University is a simplistic evaluation of an individual’s case, in this parties matter Mr M is not one of those individuals and he requires help and support from the respondent father to enable him to achieve his best and is currently educated at the University and requires necessary funds to enable that to happen.” [3]
[3] See Ms Masterton’s affidavit filed 3 August 2011 at paragraph 8
Given this view, on 9 May 2011, Ms Masterton filed an application with the court seeking that Mr Masterton pay her the sum of $200.00 per week by way of maintenance for Mr M. Ms Masterton seeks that this award be backdated to 27 January 2011, the date on which Mr M started his tertiary education.
Ms Masterton also seeks that this award be revised annually by reference to the consumer price index. In addition, she wishes an order be made that the Child Support Agency collect the sum of maintenance awarded on her behalf.
Mr Masterton opposes there being any award of adult child maintenance, to be paid by him, being made in either Mr M or Ms Masterton’s favour. At an earlier stage of the proceedings, on 15 May 2012, he agreed to pay Mr M, what he characterises as a one-off lump sum payment of $5,000.00 to assist him with his on-going studies. In Mr Masterton’s view this was an appropriate level of payment on both a legal and moral basis in all the circumstances of the case.
Ms Masterton does not currently seek board from Mr M. She pays the recurrent mortgage on the premises in which Mr M lives; pays for the utilities and rates connected with it; and buys the groceries for the entire household.
Mr M is entitled to a youth allowance, payable by the Commonwealth Government through Centrelink. In her evidence, Ms Masterton deposed that she did not really understand how youth allowance worked. However, it seems to be the case that Mr M has transferred his entitlements to his mother and the amount of his entitlements varies from fortnight to fortnight, depending on his income from the (omitted).
Mr M’s youth allowance goes into the pool of income financing the running of Ms Masterton’s household but his income from the (omitted) does not, as Mr M retains it for his own purposes. These purposes include running his motor vehicle; purchasing clothing for himself; and supplying himself with text books and the like.
Ms Masterton puts her application for adult child maintenance for Mr M on the following basis:
“The proceedings are in relation to application for adult child maintenance by the eldest child Mr M for financial support through his tertiary degree from the husband/father and the wife to receive same on the son’s behalf as contribution towards her payment of costs of accommodating and housing the adult son Mr M.”[4]
[4] See Outline of Case document filed on behalf of the applicants
Accordingly, it is clear that Ms Masterton herself seeks the payment of any sum awarded by the court and she will utilise the sum towards maintaining her household, which includes not only herself but also Mr M and Ms C. By necessary implication, Mr M will continue to retain whatever income he receives from his employment for his own exclusive benefit.
John Mattner is Ms Masterton’s solicitor. Mr Mattner has filed an affidavit in these proceedings.[5] To this affidavit are attached the child support assessments, which relate to Ms C. Up until 18 April 2012, child support income for Ms C was calculated on the basis of $154,912.00 for Mr Masterton and $17,636.00 for Ms Masterton.
[5] See affidavit of John Charles Mattner of 4 May 2012
From 19 April 2012 onwards, Mr Masterton’s child support income has been reduced to $83,454.00. Both relevant assessments note that Ms C is one hundred percent in the care of her mother. As a result of the change of income, attributable to Mr Masterton, the rate of child support for Ms C has reduced from $422.59 per week to $266.93 per week.
The rationale for filing this information is to indicate that there has recently been a significant cut to the amount of income flowing into Ms Masterton’s household. The intention being that this buttresses her claim for adult child maintenance for Mr M. It being her position that the court should take a global approach to the income flowing into her household.
The legal principles applicable to parental responsibility to provide financial support for children under eighteen years of age are different to those pertaining to adult child maintenance. Mr Masterton’s obligation to provide child support for Ms C is governed by the provisions of the Child Support (Assessment) Act 1989. If Ms Masterton is aggrieved at the financial consequences flowing to her, as a result of the changes in Mr Masterton’s employment circumstances, she is entitled to seek a departure from the relevant administrative assessment for Ms C, on the basis that the assessment in question does not properly reflect Mr Masterton’s capacity to derive an income. As I understand matters, she has not, as yet, elected to do so.
It is common ground between the parties that Mr M and Mr Masterton do not have a cordial paternal relationship. In fact, Mr M acknowledges that he has not spoken directly with his father since he was about twelve years of age. For all intents and purposes, the two are estranged.
It is Mr Masterton’s position that his legal obligation to support Mr M ended when Mr M turned eighteen years of age. He asserts that the evidence currently available to the court unequivocally demonstrates that Mr M is more than capable of supporting himself financially, including in circumstances where he has chosen to undergo a course of tertiary education.
In regards to the issue of Mr M’s university studies, during the course of his evidence to the court, Mr Masterton indicated that he was pleased his son was going to university and seemed to be able to support himself through his activities at the (omitted). However, Mr Masterton also deposed that he had not been consulted in any way about Mr M’s tertiary education aspirations.
This is a sad case, there is no warmth or trust between the maternal and paternal aspects of Mr M’s family. It is also clearly the case that Ms Masterton lives in straitened financial circumstances because of her significant level of disability. On the other hand, Mr Masterton enjoys a significantly greater degree of financial security, although his working life is coming to an end and he to faces significant health issues.
In all these circumstances, it was highly regrettable that Mr M had to give evidence in these proceedings and be cross-examined by his father, a person for whom he holds little, if any, respect or love.
I found Mr M to be a self assured, intelligent and personable young adult. In answer to questions from me, he indicated that he was a valued employee at the (omitted) because of his reliability and strong work ethic.
In the longer term, it is Mr M’s aspiration to be a (occupation omitted). He has a particular interest in (omitted) and the major theme of his undergraduate studies is in (omitted), with a secondary theme in (omitted). He passed all of his subjects, in his first year of studies, other than (omitted). This was a one semester course.
This is not a case, which turns on credit. That is on my assessment of who of the parties is concerned is likely to be more reliable with the truth. In my assessment, both Mr Masterton, Ms Masterton and indeed Mr M were honest witnesses, who were each completely candid about their respective financial circumstances.
Rather, the case turns on the application of the relevant legal principles concerned arising under the Family Law Act. The court must determine whether it is necessary and proper for there to be an award of adult child maintenance in this case. A subsidiary consideration turns on the relevance or otherwise of the lack of a filial relationship between Mr Masterton and Mr M.
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 Mr M is over 18 years of age, the question of what level of financial support is to be provided to them, by his 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”. [6]
[6] 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,[7] 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.”
[7] See In the Marriage of H (1981) 7 Fam LR 451 at 465
In Gamble & Gamble [8] 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.”
[8] Gamble & Gamble (1978) FLC 90-452 at 77,304
In Tuck & Tuck,[9] 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.”
[9] 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.[10]
[10] See Smith; St. James; Smith v Wickstein (1996) FLC 92-714
I am satisfied that section 66L is a remedial or beneficial provision of the Family Law Act. As such, it is to be construed generously to ensure that any genuine claim for relief is not denied or rejected on a technicality.[11]
[11] See Re: AM (Adult Child Maintenance) (2006) FLC93-262 at 80,437 per Carmody J
This is also clear from the principles contained in section 43(1)(b) of the Act, which direct the court, in the exercise of its jurisdiction, to have regard to “the need to give the widest possible protection and assistance to the family as the natural and fundamental group unity of society, particularly whilst it is responsible for the care and education of dependant children.”
In this case, Mr Masterton and Ms Masterton have been separated for over thirteen years. Their children have no cordial or filial relationship with their father. At best, it would seem that the family, in this case, can only be described as a separated one. Certainly, it is not a family the entirety of whose members, either regularly or intermittently, come together with any sense of commonality or community.
In Cosgrove & Cosgrove,[12] 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.
[12] 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 Masterton’s application, so far as Mr M is concerned, is one based on section 66L(1)(a). She seeks maintenance from Mr Masterton to enable Mr M to be able to complete his 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,[13] 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.”
[13] O’Dempsay & van Raay (1990) FLC 92-178 at page 78,205
In this case, Mr M is currently engaged in a course of tertiary education at the University of (omitted). He is undertaking a (omitted) degree. It is not suggested that this course is anything other than a course of education by Mr Masterton
The authorities seem clear that the court retains a discretionary power not to exercise its adult child maintenance jurisdiction, even though any threshold issue arising under section 66L(1) is satisfied.[14] The authorities however are not clear about the extent of this discretion.
[14] See Re: AM (Adult Child Maintenance) supra at 80,441
In Cosgrove,[15] 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:
[15] 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.”
In this particular case, Mr Masterton points particularly to the lack of a filial relationship between him and Mr M as a reason why the court should not exercise its discretion in favour of Ms Masterton, in this particularly case. It is his position that the estrangement between him and Mr M is a longstanding one, which was instigated by Mr M. In these circumstances, by necessary implication, he would characterise it as being hypocritical on Mr M’s part, for him to seek financial succour from him.
In Re: AM (Adult Child Maintenance) Carmody J made reference to two contrary authorities dealing with this issue of lack of filial relationship in cases concerning adult child maintenance. Firstly, Mercer & Mercer,[16] in which Watson SJ said as follows:
“… there is another factor – that of his own conduct towards his father. He 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 parental 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.” [17]
[16] See Mercer & Mercer (1976) FLC 90-033 at 75,131
[17] at 75,131.
Secondly, Carmody J referred to a slightly more recent authority of Oliver & Oliver[18] in which Asche SJ said as follows:
“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 parents as against the child who remained frank and honest as to his relationship ….”
[18] See Oliver & Oliver (1977) FLC 90-227
What I take from these counter veiling authorities is that the exercise of the discretion in question must depend on the overall circumstances of this case. Certainly, there can be no suggestions of obsequiousness on Mr M’s part in this case. He makes no secret of his disapprobation of his father. As such, I am satisfied that he regards Mr Masterton as being his father only in the loosest biological sense of the word.
In Re: AM Carmody J favoured the approach of Asche SJ. However, it was accepted that relationship evidence, in a case concerning adult child maintenance, may limit the level of any financial support a parent may be liable to provide but does not necessarily reduce it to nil.[19] In this particular case, it is note worthy, I think, that Mr Masterton did provide a lump sum payment of maintenance to Mr M.
[19] See Re: AM (Adult Child Maintenance) (supra) at 80,443
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.
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.[20] 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.
[20] See Smith; St. James; Smith v Wickstein supra
Accordingly, in assessing whether it is proper to make an award of adult child maintenance, in Mr M’s favour, I am directed by section 66J(3) to disregard his entitlement to an income tested pension, allowance or benefit and, pursuant to section 66K(4) to disregard the Ms Masterton’s entitlement to such an income tested, pension, allowance or benefit.
The evidence
a) Ms Masterton
Ms Masterton has provided an extensive account of her annual and weekly expenditure, which she had deposed: “incorporates maintaining accommodation and living expenses associated with my children …”[21] Her major weekly expenses are as follows:
[21] See paragraph 4.1 of Ms Masterton’s affidavit filed 18 April 2011
Food
$330.00
Utilities
$45.00
Rates
$19.00
Telephone
$33.00
Water
$18.00
Motor vehicle running expenses
$60.00
Gifts
$48.00
Internet
$14.00
Credit Card
$115.00
Insurance
$49.00
Chemist
$12.00
Total
$743.00
I have not included other expenses in this list. They include Ms C’s uniform, backpack and school supplies; dog registration; vet; driving lessons (presumably for Ms C as Mr M has a driver’s licence); and entertainment. I am not sure how these expenses relate directly to Mr M.
It would seem to me that Ms Masterton has included every possible item of expenditure she can think of. This expenditure has not been subject to audit. It is my impression that she has fallen into the common but understandable practice of parties, who make applications for recurrent financial support in the court, to inflate her expenses. I accept however that her circumstances are such that she is compelled to lead a frugal lifestyle.
I accept that Mr M is a consumer of electricity; water; gas; and of course food; whilst living in his mother’s household. In these circumstances, given his age, it does not seem unreasonable that, at least notionally, he make some form of recompense in respect of these expenses. However, from my perspective, it is difficult to quantify what this amount should be, on the mother’s evidence.
Ms Masterton has also provided her estimate of Mr M’s expenses, related to his attendance at university, for both 2011 and 2012. In 2011, she estimated these costs as being $131.34 per week, on average. In 2012, she estimates these costs as being, on average, $234.13. She has also raised the issue of Mr M’s orthodontic expenses, which come to $3,000.00. Precisely when this expense was incurred and how it relates to Mr M’s attendance at university is unclear to me.
In the case of each of Mr M’s semesters to date, his major expense has been for books. The expenditure on books has ranged from a low of $550.00 to a high of $880.00. I have not been provided with any extensive inventory of these books and, as such, am uncertain as to which are to be regarded as essential and which could be borrowed temporarily, either from the university library or from a fellow student. In my day at university, it was common practice for students to buy and sell their text books at the beginning and end of the university year.
However, I accept that students require text books and these have the potential to be expensive. It is Mr Masterton’s position that his payment of $5,000.00 to Mr M was intended to recompense Mr M in respect of such one of items of capital expenditure.
Mr M’s other major item of recurrent expenditure relates to the costs of putting petrol in his vehicle and parking it. At the present time, it is estimated that parking costs him $640.00 per semester and petrol $40.00 per week. It is also estimated that other running expenses in respect of his car come to $54.00 per week.
Mr M is said by his mother to spend around $1,000.00 per annum on clothing; $780.00 per annum on gym membership; and $960.00 on his mobile phone. He purchases his lunch at university at a cost of around $30.00 per week.
In all these circumstances, it is submitted on Ms Masterton’s behalf that she is subsidising Mr M to the sum of $250.00 per week. I am uncertain as to how this sum is calculated on the basis of the raw data provided to me. Ms Masterton also complains that, since child support for Ms C has been reduced, there is less income coming into her household and this has restricted her capacity to so subsidise Mr M.
The implication of Ms Masterton’s evidence is that she has increased her credit card debts to meet this expenditure. In this regard, I have not been provided with any details of the exact sums said to relate to Mr M’s education, which have been charged to Ms Masterton’s credit card. In her oral evidence, she indicated that her current credit card debt was between $5,000 and $6,000.00
Under cross-examination, Ms Masterton conceded that she had recently received a bequest of $42,000.00 from the estate of her late mother. She had used this sum to pay down her home mortgage. I have not been provided with any evidence as to the current extent of this mortgage and what are the recurrent repayments required in respect of it. I note however that it is part of Ms Masterton’s case that she provides accommodation for Mr M.
I accept that this is so. Mr M lives under Ms Masterton’s roof. As such, his occupation of her home must have some tangible level of expense related to it. However, regardless of whether Mr M lived in the property or otherwise, Ms Masterton would have to pay the rates and mortgage repayments relating to the property.
I also accept that Ms Masterton is the person who is responsible for purchasing the households food and groceries. She buys for three. As previously indicated, other than the assignment by Mr M of his youth allowance to his mother, no arrangement has been made for Mr M to provide board to his mother.
There is a lack of precision about the precise quantum of income, which flows into Ms Masterton’s household each fortnight. There is no doubt she receives $755.00 per fortnight by way of a disability support pension from Centrelink. She also receives $570.00 per fortnight by way of child support for Ms C. In addition, she receives Mr M’s youth allowance of up to $195.00 per fortnight.
I am aware that I am obliged to disregard any entitlement Ms Masterton has to an income tested pension. A disability support pension falls within this definition.[22] However, in general terms, in my view, it is useful to see what comes into Ms Masterton’s household, in financial terms, as compared to Mr Masterton’s household. Excluding Mr M’s income it seems to be in the vicinity of $40,000.00 per annum. On this basis, I accept that Ms Masterton cannot be regarded as being in a strong financial position.
[22] See Family Law Regulations (Regulation 12A(b))
Ms Masterton’s evidence is that it is physically onerous for Mr M to work at the (omitted), whilst continuing to study on a full-time basis. In support of this submission, she points to the fact that Mr M suffered a severe bout of the flu and was unwell for five to six weeks. During this period, she asserts he lost fifteen kilos in weight. In my estimation, there is something of maternal exaggeration in this aspect of her evidence.
b) Mr M
Mr M has only filed brief affidavit evidence, the effect of which is to confirm his mother’s calculations regarding his recurrent level of expenditure. In presentation in court, Mr M was a fit and pleasant young man. Certainly there was no obvious evidence that he is currently debilitated.
He obtained his position as a (occupation omitted) through a contact with a friend, who had worked there previously. He has been at the (omitted) for a couple of years and is a valued employee of it. He confirmed that the work entailed, in being a (occupation omitted), is onerous. However, Mr M indicated that he enjoys the work and is regarded as being very reliable by his supervisor, an attitude which the supervisor does not have in respect of other (occupation omitted) employed at the (omitted). The impression I have is that Mr M has the job at the (omitted) for as long as he wants it.
Mr M, in common with other university students, has a long vacation from his studies each year, which lasts from November until early March. This coincides with the busier period of the year at the (omitted). The (omitted) serves both (omitted). The weekends are its busiest days for custom.
Mr M confirmed that he frequently works on weekends, at the (omitted). He also, on occasions, works “split shifts” which require him to work (omitted) and then (omitted), with a brief break in between. He does not get paid for this break, which is too short to allow him to go home or return to university.
Mr M does not work a fixed roster. Rather, he works when called upon. As he is a valued employee, he is free to reject shifts, if they clash with his university commitments. However, it would seem to be the case that he has a sense of obligation for the (omitted). The (omitted) management, for its part is sensitive to Mr M’s obligations at university.
It is Mr M’s evidence that, when the (omitted) was a (occupation omitted) down, he worked more hours to cover the gap in staff. In my view, this is to his credit. His work hours seem to vary between twenty and forty hours per fortnight. There would appear to be no impediment in Mr M working longer hours during the university vacation.
The evidence indicates that Mr M has successfully completed three semesters at university, apart from failing a subject entitled (omitted). Otherwise, he has received passes for his other subjects. In these circumstances, I accept that Mr M has the intellectual attributes necessary to qualify for tertiary education, but is not the sort of student who will be able to coast through with the minimum level of application. He will need time to study.
I accept that Mr M leads a frugal life. He has modest clothing requirements. The motor vehicle, which he owns, is twenty-three years old. The issue of the motor vehicle is controversial, so far as Mr Masterton is concerned.
From Mr M’s point of view, the vehicle is essential to allow him both to work at the (omitted) and attend university. In a literal sense, Mr M does not need a car to get to university. He conceded that he could catch a train there to and from his home. This would also be significantly cheaper than driving his car, which requires parking for which a fee is charged.
Mr M also conceded, in cross-examination from his father that he could theoretically ride a bicycle to the (omitted). In this day and age, I do not regard a motor vehicle as a luxury. I accept that the reality of Mr M’s life, involving both study and work, the latter occurring on weekends and at night, require him to have access to some form of reliable private transport.
The evidence reveals that Mr M earned $17,140.00 for the financial year concluding 30 June 2012. This equates to a gross wage of $329.60 per week. In his most recent payslip available, he earned $334.00 gross for the fortnight ending 24 July 2012 and, up to that stage had earned $1,082.00 for the financial year to date. He earns $20.93 per hour at present.
Mr M does not regard it as a luxury to attend the gym. From his perspective, it is important that he maintains his fitness, an attitude shared by him with his mother. Mr Masterton does not regard this as an essential fixture in Mr M’s life.
c) Mr Masterton
Mr Masterton is concerned that many aspects of the expenses claimed by Ms Masterton, for Mr M, are either exaggerated or inflated. He is particularly sceptical about the claim for gym membership and the costs relating to Mr M’s car, which he believes are excessive. He is also critical that he was not provided with information about books purchased for Mr M’s studies.
The tenor of Mr Masterton’s evidence is that he is not a person who has ever shirked his proper financial obligations for his children. To the contrary, he has provided a transaction summary, from the Child Support Agency, which indicates that from 3 March 1999 to 11 April 2011, he paid just under $320,000.00, in child support, for the two children concerned.
My impression of Mr Masterton was of a somewhat gruff knock about bloke, who was nonetheless distressed at the rupture of his relationship with Mr M. I reject any suggestion that he is managing his affairs to evade financial responsibility for Mr M. Rather his position is that, given Mr M is now over eighteen years of age and there is no close relationship between the two, it is not reasonable that he be required to pay a significant and regular sum of money to subsidise Mr M’s university education.
In my estimation, there is nothing sinister in Mr Masterton’s decision to reduce his hours of work by way of assuming a job share position. I accept that Mr Masterton’s work is onerous and he himself suffers a significant level of orthopaedic disability in his lower limbs. The decision to reduce his hours of work is supported by his orthopaedic surgeon, Mr H.
Mr Masterton earns $1,600.00 gross per week. He estimates his total personal expenditure as being $1,579.00 per week. This expenditure includes tax of $370.00 per week. Mr Masterton lives alone and has no legal obligation to support anyone other than Ms C.
Mr Masterton’s most significant asset is his home, which he values at $495,000.00. The property is subject to a mortgage of $352,000.00. In these circumstances, Mr Masterton’s major recurrent expense is his mortgage repayments of $540.00 per week.
Accordingly, Mr Masterton’s household receives an income stream, which is approximately double that of Ms Masterton’s household. However, it is Mr Masterton’s evidence that he is still adjusting financially to the recent halving of his income, as a result of the inauguration of the job share arrangement at his work.
Mr Masterton concedes that he enjoys a drink. He is also a member of a bowling club. I reject any insinuation that because Mr Masterton is able to play bowls, it is reasonable for him to work full-time as a (occupation omitted).
Mr Masterton has savings of $13,500.00. He owns two motor vehicles, one of which is a (omitted) Commodore valued at $22,000.00. Apart from his mortgage, he has no significant debts.
Mr Masterton’s level of weekly personal expenditure was not subject to any extensive scrutiny. In my assessment, none of his recurrent expenses seem exceptional. His food bill is approximately $80.00 per week. The only aberrant expense appears to be that which falls under the heading “other necessary commitments”. The expenditure in question is $132.00 per week. This appears to be the amount Mr Masterton spends on alcohol. It is not my role to be censorious about such lifestyle choices.
Accordingly, although I accept that there is a massive discrepancy between the income received in Mr Masterton’s household and that which is received in Ms Masterton’s household, I do not think that there is any obvious source of surplus in the latter household. However, given that Mr Masterton has significant savings and no consumer-type debt, it is obvious that he has a far greater degree of financial buffer than Ms Masterton.
Conclusions
At present, Mr Masterton is paying $267.00 per week child support for Ms C, which represents just under seventeen percent of his weekly income. On the other hand, he is currently paying no moneys whatsoever in respect of Mr M.
Until the end of 2010, Mr Masterton was paying a significantly greater amount of child support for both Mr M and Ms C. This was because his income was higher than it currently is and was applied to two children rather than one. Accordingly, prior to Mr M starting at university, the stream of income going into Ms Masterton’s household, on a weekly basis, was markedly larger than it is now.
Due to the circumstances arising from her disability, Ms Masterton remains on a fixed income. Her situation has not changed, in this regard, yet the amount of money coming into her household has markedly reduced. In these circumstances, it is hardly surprising that she looks to Mr Masterton to make up some of the shortfall.
However, the legal provisions relating to child support, on the one hand, and adult child support, on the other, are significantly different. It is not my function to engage in a process of fiscal redistribution between the two households concerned. Rather, I must apply the relevant legal provisions to the case and bear in mind that I am dealing only with Mr M’s situation, not the global situation, within Ms Masterton’s household, as it relates to her and Ms C’s ongoing financial maintenance.
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. Essentially, the applicable legislation, in respect of child support for children under eighteen years of age, places a legal obligation on the parents of the children concerned to provide financial support for their children according to the level of their (the parents’) respective incomes.
This objective is achieved by applying a formula to the income of each 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 child support 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 empirical research regarding the actual 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.
As a result of this statistical formulation, prior to Mr M turning eighteen years of age, as there was a marked income disparity between Mr Masterton and Ms Masterton, but the two children concerned were in Ms Masterton’s predominant care, Mr Masterton was assessed to pay a significant amount of child support to Ms Masterton.
I accept that it is understandable that Ms Masterton would have become accustomed to this regular level of payment, part of which she utilised to discharge payments which partially benefitted her, such as the payment of her mortgage and other related accommodation expenses, particularly given her own income earning capacity has remained static for the entire period since she and Mr Masterton separated.
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 adult child concerned to complete his education.
As such, there is no presumption that such an order should be made in all cases concerning a child, who was previously covered by the child support system, who progress onto tertiary education after his eighteenth birthday.
Accordingly, the threshold question is whether it is necessary for Mr Masterton to provide some recurrent level of financial support for Mr M to enable him to complete his tertiary education.
In this case, Mr M has completed, albeit with the glitch of failing one subject, his first year of tertiary studies without the provision of any direct financial support from his father. Accordingly, the provision of maintenance for him by Mr Masterton was not absolutely necessary to enable Mr M to attend the University of (omitted).
It would seem to be the case that Mr M and his mother were determined that Mr M would attend university, regardless of whether Mr Masterton had any financial input into the issue or not. No doubt each considered that it was self apparent that it would be beneficial for Mr M to undertake tertiary studies. Certainly, neither Ms Masterton nor Mr M undertook an active process of consultation with Mr Masterton before the decision was made.
I accept that it is socially desirable, both for Mr M himself and indeed the wider community of South Australia, which he wishes to serve as a (omitted), that Mr M undertakes his tertiary education. However, social utility or what is morally desirable is not the applicable criterion for the making of an adult child maintenance order. However, I must be careful not to be unduly stringent in my assessment of the question of necessity.
In this regard, I accept that the provisions of the Family Law Act relating to adult child maintenance are beneficial in their intention. As such, they are to be construed in a liberal manner to ensure that otherwise meritorious claims for adult child maintenance are not rejected on unduly technical or spurious grounds.
In my view, the question of necessity, in the context of section 66L(1), is to be determined objectively, from all the prevailing circumstances, including the parents financial circumstances, and particularly the income and income earning capacity of the child concerned.
In my view, the most salient factor in this regard is Mr M’s own income earning capacity. As he is over eighteen years of age and is thus to be regarded as an adult, the responsibility for his financial support primarily falls on his shoulders, rather than on those of his parents. After all, in the longer term, it is he who will benefit financially, once he has successfully obtained his tertiary qualifications and is able to embark upon a professional career, as a (occupation omitted).
Mr M, in common with many other tertiary students, combines part-time work with full-time studies. He earns a modest income. In my assessment, he has the clear capacity to earn around $18,000.00 per annum. It does not seem unreasonable that he should work during the end of year long vacation. In addition, it does not seem unreasonable that he should work during the university year.
Mr M is a pleasant and reliable employee of the (omitted). He is fortunate to have been able to secure permanent, albeit part-time, employment for himself. As a result of his attributes as an employee, the (omitted) is willing to work around his study commitments.
It is regrettable that Mr M had an episode of flu earlier this year. However, he is otherwise a healthy young man, who is in the prime of life. There is no evidence available to me to indicate that his current level of work is detrimentally impacting upon his health or his studies.
Accordingly, the evidence indicates to me that Mr M has a significant level of capacity to support himself, whilst he is at university. His mother, no doubt out of the ties of affection and parental obligation, which she holds for Mr M, does not currently see fit to ask Mr M to provide a portion of his income to her as board.
This is her prerogative. However, I am concerned that she is labouring under some level of misapprehension that Mr Masterton is automatically required to assist her in this regard because of his prior provision of child support.
However, I also appreciate that, from Ms Masterton’s perspective, it is a question of “needs must”. Mr M was in her household, both before and after his eighteenth birthday. She was not in a position to ignore his financial demands. She had to continue to provide for some of his needs, as she had done when she received child support for him from his father.
On any view, Mr M’s recurrent level of income is modest. He has utilised it largely for his own purposes. Ms Masterton was required to go to the supermarket, to purchase her household’s groceries, both before and after Mr M’s eighteenth birthday. These groceries were in part consumed by Mr M. The total of Ms Masterton’s tape from the supermarket till has remained much the same, whilst the contents of her purse have diminished, notwithstanding the occurrence of Mr M’s majority.
This is the dilemma in the case. To his great credit, Mr M has “stepped up to the plate” so far as the provision of his own financial support is concerned. However, his level of expenditure has increased, particularly in respect of his motor vehicle. To some degree, the financial pressures in Ms Masterton’s household have increased, whilst her level of income has decreased.
In all these circumstances, it is hard not to feel some sympathy for the situation in which Ms Masterton finds herself, particularly given the marked discrepancy between her income and that of Mr Masterton. However, the process of an adult child maintenance order is not one of fiscal equalisation between the parental households concerned.
The natural ties of affection Ms Masterton holds for Mr M and his living presence in her household dictate that she will continue to allocate her financial resources, at least in part, to supplying Mr M’s needs. This is what I mean when I say it is a case of “needs must”. Inevitably Ms Masterton will continue to subsidise Mr M’s needs, to some degree, particularly if she continues not to seek some form of board from him.
In these circumstances, Mr M’s lifestyle is subsidised by his mother, who provides accommodation, food and utilities for him, without charge. I accept that without this level of subsidisation, Mr M may not be able to survive financially on his current level of income and may very well have to re-think his tertiary education plans. This re-think could potentially involve reappraising his current level of employment and considering whether to reduce his level of study to less than full time.
This is one of the central issues in this case. Is it proper for the mother to be implicitly required to provide this level of subsidy, which stems from her love and commitment for Mr M and because the reality of her familial situation is that she can do nothing other because, with her acquiescence, Mr M continues to share her household, without any direct financial contribution from Mr Masterton for Mr M.
Whatever is the outcome of these proceedings, Ms Masterton is likely to continue to provide this level of subsidy willingly until such time as Mr M determines that he wishes to live independently of her. I accept that it may potentially be some time before Mr M elects “to leave the nest” and he is unlikely to be under any pressure to do so before he is ready.
I suspect that, if the roles of the parties were reversed and Mr M was living under Mr Masterton’s roof, whilst going to university, he would happily make the same allowances for Mr M’s living expenses, as Ms Masterton currently does. Mr Masterton’s financial resources would organically adapt to encompass such support of Mr M within his household.
However, notwithstanding this observation, as I calculate Mr Masterton’s current financial circumstances, there is no obvious source of surplus to supply an adult child maintenance order for Mr M. I accept that the inauguration of the job share regime has inaugurated a period of financial austerity for Mr Masterton. I also accept that such an observation is likely to be cold comfort to Ms Masterton, given the accommodation that she is compelled to make for Mr M’s financial support because of where he is living.
Ms Masterton does not choose to formally levy an amount from Mr M relating to the board, which she provides for him. Nonetheless, I can understand why Ms Masterton would be aggrieved that she disproportionately suffers the restrictions on her finances, which are the natural consequence of Mr M continuing to share her 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.
The issue of providing for an adult child, particularly following parental separation is contentious. Many would think that because educational qualifications are ipso facto a good thing, it is morally appropriate for a parent to provide the financial means to enable a child to obtain them, for the greater benefit of the child concerned. Others may think that the crossing of the child into maturity marks the start of that individual assuming for financial responsibility for him or herself.
These points of demarcation are blurred when the nature of the relationship between the parent and the child concerned is considered. Is the relationship a warm and solicitous one? Is the acquisition of the educational qualifications in question the shared goal of the parent and child concerned? Are the parties concerned essentially strangers, as a result of a troubled family history? Issues such as this touch on what is the morally appropriate or proper course to take.
I have found that Mr M has a capacity to earn a significant income for himself as a result of his own endeavours. Ms Masterton does not impose economic restrictions on his lifestyle by the imposition of any charge relating to the things he consumes in her household. This is her choice and is one which is readily understandable given her natural ties of love and affection for Mr M and her hope that he will become qualified sooner rather than later. However she does not necessarily have the entitlement to impose the consequences of her choice on Mr Masterton.
If Mr M were compelled to pay some formal level of board to his mother, it might result in him in changing his current arrangements for study and how those arrangements are funded. For example he may chose to study over a longer period of time. That however is a largely conjectural consideration.
The reality of the situation is that Mr M has completed a year and a half of tertiary studies, under the current arrangements and, regardless of the outcome of these proceedings, is likely to complete his course as soon as he is able to do so. In this sense, the ongoing provision of financial support from Mr Masterton to him is largely academic. He and his mother are likely to go on as they have done up to this stage, whether Mr Masterton is compelled to provide a recurrent level of financial support or otherwise.
Finally, it is clear from the applicable authorities that a discretion resides in the court as to whether or not it should make an order for adult child maintenance. One of the considerations relevant to the exercise of this discretion is the nature of the filial relationship between the parent concerned and the potential recipient of the maintenance in question.
In this case, there is no viable paternal relationship between Mr M and Mr Masterton. The two have not interacted with one another for about eight years. This seems to be a source of some regret for Mr Masterton but not for Mr M. Mr M, although seeking some financial support from his father, seems in no hurry to mend the relationship between the two.
The more consistent line of recent authority, relating to this issue, seems to have ameliorated the earlier attitude that it was inappropriate for the court to condone an adult child wanting to take from a parent financially with one hand and spurn that parent emotionally with the other. Considerations pertinent to the level of filial relationship may limit the amount of an award of adult child maintenance but are unlikely to result in it being reduced to nil, if the threshold issue of necessity has been crossed.
In this case, in my view, it is relevant that Mr Masterton provided a lump sum of $5,000.00 to Mr M. I accept that his intention in this regard was to acknowledge Mr M’s maturity and provide him with a modest sum to assist him with his on-going educational aspirations. The sum was intended, on his part, to mark the end of Mr M’s financial reliance on him. It was essentially a gesture of “good-bye and good luck.”
I do not consider this to be an easy or straight forward case. After considering all the relevant considerations, relevant to the threshold issue of necessity, I have come to the conclusion that the most important consideration in this regard is the marked disparity in income between Ms Masterton’s household and that of Mr Masterton.
Although Mr Masterton’s level of income has recently significantly diminished, he remains financially secure when compared to Ms Masterton. Importantly, he has determined to job share so that he can continue in the workforce for as long as possible, preferably until he reaches a retirement age of sixty five.
On the other hand, Ms Masterton’s financial situation is precarious and will remain so, as she in receipt of social security payments. For reasons already provided, whilst Mr M remains living under her roof, she will inevitably fund his studies to some degree. In these circumstances, I have come to the conclusion that some provision of funds from Mr Masterton to Mr M will be necessary to ensure that Mr M completes his university studies. Essentially, I have concluded that there needs to be some buffer or financial safety net provided in this regard.
However, given Mr M’s undoubted capacity to support himself financially and the lack of filial relationship between him and Mr Masterton, I have also concluded that the amount of maintenance to be provided should be modest. I am fortified in this view by the fact that Mr Masterton has already provided a significant lump sum, which was intended to provide assistance for big ticket items such as books and union fees. In these circumstances, I do not propose to back-date the award to be made.
The sum I have reached for the maintenance to be paid is one of $1,000.00 to be paid by Mr Masterton to Mr M at the start of each semester during which he is engaged in under-graduate tertiary study for his current degree at the University of (omitted). The first such payment will be for the second semester of the current academic year of 2012.
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 sixty-three (163) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 31 August 2012
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