MC and MDW
[2000] FMCAfam 29
•7 September 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MC & MDW | [2000] FMCAfam 29 |
| FAMILY LAW – Child maintenance beyond 18 years of age – the daughter has attained the age of 18 years – whether the provisions of section 66 of the Family Law Act 1975 are satisfied for such an order to be made. |
Family Law Act 1975, s.66
C v C (1962) 4 FLR 461 at 465
Oliver and Oliver (1977) FLC 90-227
Mercer and Mercer (1976) FLC 90-033
Gamble and Gamble (1987) FLC 90-452
Tuck and Tuck (1981) FLC 91-021
| Applicant: | C M |
| Respondent: | D W M |
| File No: | PAM 531 of 2000 |
| Delivered on: | 7 September 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 4 September 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Chate Timothy Franklin Chate, Solicitors |
| Solicitors for the Respondent: | Mr Thorburn Mervyn Finlay Thorburn & Marshall, Solicitors |
ORDERS
The Respondent shall pay to the Applicant the sum of $135.00 per week by way of maintenance for B J M, born 29th June 1982, a child of the marriage, until the completion of the academic year in 2003 or the said B J M ceases to be a full-time student, whichever shall first occur, the first payment to be made on or before Friday 22nd September 2000.
The payments in Order 1 hereof shall be made by fortnightly instalments of $270.00 into a bank account nominated by the Applicant, to be an account from which the said B J M has the authority to make withdrawals.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 531 of 2000
| C M |
Applicant
And
| D W M |
Respondent
REASONS FOR JUDGMENT
This is an application by the wife for maintenance for BJM, the daughter of the marriage, who attained the age of 18 years on 29th June 2000. B is a full-time student at the University of Western Sydney, in her first year of the degree of Bachelor of Teaching/Education: Early Childhood, which is a four year course. The Applicant claims that an amount of maintenance is necessary to enable B to complete her education (Family Law Act, s.66L(1)).
The Respondent does not contest the fact that he has the capacity to pay a reasonable amount, nor does he dispute that B’s university course is for her benefit. What the Respondent does dispute is the necessity for the order to be made, on the following bases:
a)both he and B were able to negotiate an appropriate figure until the Applicant intervened;
b)B’s needs do not warrant an order being made; and
c)B has a capacity to earn income to support herself.
Background
The parties are divorced. They have been apart since 1994. There are two children of the marriage, a son aged 23 and the daughter B, who is now 18. The son attended university and his father provided some financial assistance. B lives with her mother, who now has a de facto partner. The father has also formed a new relationship.
The parties’ proposals and orders sought
The wife seeks an order that the husband pay the sum of $250.00 per week by way of maintenance whilst B attends university. The husband disputes the necessity for an order, preferring to make his own arrangements directly with B. He said that he had agreed to pay her $100.00 per week, directly into her bank account. He had also said to B, “We’ll talk about your books separately”. This discussion did not take place.
Issues
The issues in this matter are whether an order for maintenance is necessary to enable B to complete her university education and, if so, what is the appropriate amount. If a regular amount of maintenance is appropriate, how should it be paid?
Evidence
The Applicant relied on her application, her affidavit in support and a brief affidavit by B. She also tendered a letter from the Child Support Agency and a letter from B to the effect that she could not attend court due to a practical teaching requirement of her university course. The Respondent relied on his Response and affidavit in support.
The situation is that B lives with her mother at N R and attends the University of WSN at K, which she estimates to be about 30 kilometres from her home. She is required to attend lectures or practical teaching on Mondays to Thursdays, and has Fridays free. She says in her affidavit that she teaches swimming each Saturday morning, for which she receives $50.00. Other attempts to obtain part-time work have been unsuccessful.
B has a motor car, which she says her mother purchased for her. Public transport is by bus and train. The bus service between the railway station and the university does not run in the evenings or at night. B does not receive any payments from Austudy or the Department of Social Security.
The Applicant referred in her affidavit to a current application to the Child Support Agency to review the previous child support assessment made against the Respondent. If her application is successful, the Applicant could expect to receive a substantial amount of arrears, but the court cannot take that contingency into account. What is significant is that the Applicant, in her Application, shows an average weekly income of $750.00 and average weekly expenses of $1075.00.
The Respondent, in his affidavit, stated that he intended to help his daughter B through university in the same way as he had assisted the couple’s son, S. He recounts the negotiations between B and himself about her support, which were not concluded, because, he said, B had told him “Mum doesn’t think the amount you’ve offered is enough, and she’s taking it to court.” He queries her need for a motor car, except to attend university on one evening a week, and points out that HECS liability is often deferred until the student has finished work and is earning an income. In general, the Respondent queries the estimates of various expenses, including textbooks.
The principles to be followed
It is clear that the courts regard it as appropriate to continue maintenance to allow a child to undertake a tertiary education. The Victorian Full Court, in C v C (1962) 4 FLR 461 at 465 set out five principles to observe:
(i)whether the course to be pursued by the child was going to help the child to earn an income;
(ii)whether the child appeared to be qualified to pursue and profit from the course;
(iii)whether the child had scholarship assistance, or other income;
(iv)what hardship would result to the child if she had to abandon the course through lack of means; and
(v)whether the parent asked had the means to assist.
The relevant statutory provision is section 66L of the Family Law Act 1975, which provides that a court must not make an order for the maintenance of a child who is 18 or over unless the court is satisfied that the maintenance is necessary to enable the child to complete his or her education. In this context, ‘necessary’ does not mean ‘absolutely essential’, but that “the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors” (Tuck and Tuck (1981) FLC 91-021).
The court must have regard to the child’s income and earning capacity (Mercer and Mercer (1976) FLC 90-033, Gamble and Gamble (1987) FLC 90-452). It has been held, also in Mercer and Mercer, that a university student’s needs do not include a motor vehicle.
The court may take into account the nature of the relationship between the parent and the child (Oliver and Oliver (1977) FLC 90-227), but there is no estrangement in this present case.
Conclusions
It is clear that it was always within the contemplation of the parties that B would attend university, as her brother had done. In fact, she commenced at the University of WS whilst she was still under the age of 18, and the Respondent was still paying child support. It would not be possible for her to become an early childhood teacher without completing the appropriate tertiary course. It is equally clear that, if she receives no assistance from the Respondent, B would have great difficulty in remaining at university, at least for the time being. No financial support from her father would not necessarily mean the end of her university education, but could well cause her to defer her studies in order to work to save money to support herself as a full-time student.
I am satisfied that it is necessary for the Respondent to pay a regular amount to assist B to complete her university course. She has some part-time employment, but her ability to undertake other part-time employment is limited by her lecture and practical teaching obligations, and by the need to engage in private study and lesson preparation which any such course demands. Whilst she has Fridays free, there is no evidence that there is suitable part-time work available that B has declined or neglected to take up.
I am not satisfied that there has been shown a necessity to own and run a motor car. There is clearly a need for B to have safe and reliable transport when she has an evening lecture, but other students arrange lifts or borrow their parents’ cars if public transport is not available.
HECS fees are commonly deferred until a student is able to earn a proper income, and B should be no exception here. I accept that text books are quite often expensive, especially as they may have relatively low print run compared with other books, so the figure of $600.00 quoted is not outlandish. The figures quoted for clothing seem to be expensive for a full-time student, even one who engages in practical teaching, as casual clothes are usually accepted for students.
At the same time, I am not satisfied that the sum of $250.00 claimed by the Applicant is an appropriate figure, but rather an overly generous estimate. The Lovering Table does not, to my mind, provide an accurate guide to the needs of a young teenage adult in B’s position, but the Lee Table provides some guide. By that estimate, the cost of a younger teenager would amount to some $261.32 per week, of which the Applicant should bear a reasonable proportion. Up until 29th June, the Respondent was paying child support in the sum of $134.00 per week, which is only slightly more than half of the Lee Table figure. It is clear that the Respondent’s income is more than that of the Applicant, and it is not unreasonable that he should bear a slightly greater proportion of the cost of B’s upkeep whilst she is a full-time student.
I am satisfied that the Respondent should pay the sum of $135.00 per week as maintenance to support his daughter whilst she completes her university course. This amount is one which should be paid year-round, as it is calculated on an annual basis, which means that it should not be suspended during university vacations.
There is much to be said for the Respondent’s contention that his daughter should be the one to receive the payment, as she is now legally an adult. B’s course will continue until 2003, when she will turn 21. It would be absurd for a 21-year-old not to be able to access the funds paid for her support by her father. The money should be paid into a bank account to which B has access. She should then negotiate with her mother as to how much she should pay in the way of board.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 September 2000
0