NOLAN & NOLAN (No.2)

[2019] FCCA 941

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOLAN & NOLAN (No.2) [2019] FCCA 941

Catchwords:
FAMILY LAW – Adult child maintenance – orders made.

Legislation:

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

Cases cited:
In the Marriage of Weir [1992] FamCA 69

Applicant: MS NOLAN

Respondent: MR NOLAN

File Number: PAC 331 of 2018

Judgment of: Judge Newbrun

Hearing dates: 7 December 2019, 19 February 2019

Date of Last Submission: 4 March 2019

Delivered at: Parramatta

Delivered on: 12 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Apostle

The Respondent appeared by telephone

ORDERS PENDING FURTHER ORDER

1. Pursuant to section 66L of the Family Law Act 1975 (Cth) the father shall pay to the adult child, Ms A born … 2000, the sum of $360 per week commencing on 19 April 2019.

2. The payment in Order 1 above shall be adjusted annually by the Consumer Price Index for Sydney the preceding financial year on 1 July each year.

IT IS NOTED that publication of this judgment under the pseudonym Nolan & Nolan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 331 of 2018

MS NOLAN

Applicant

And

MR NOLAN

Respondent

REASONS FOR JUDGMENT

1. An adult child, Ms A born … 2000, seeks an interim Order that the Respondent father pay $614 per week by way of adult child maintenance, pursuant to section 66G and 66L of the Family Law Act 1975 (Cth) (“the Act”).

2. The adult child’s application is contained in her case outline dated 5 December 2018.  In her Amended Initiating Application filed 4 June 2018 she had sought the sum of $500 per week by way of adult child maintenance.  She had also sought an Order in that document that the weekly sum increase by 5% on each of the adult child’s subsequent birthdays to accommodate for annual inflation.

3. The Respondent father’s Response filed 20 June 2018 seeks interim Orders as follows:

   1.      The Respondent / father, Mr Nolan, shall make a financial contribution to support the applicant / daughter Ms A as she undertakes a 4 year studies at University.

   2.      Father/Respondent to transfer directly into applicant’s bank account of a weekly contribution of $223.08.

   3.      That the respondent / father’s weekly Adult Child Maintenance contribution terminate on his daughter’s completion of her first studies, or if the child ceases studying in a full-time capacity, or commences employment with sufficient remuneration to support herself.

4. The Court now refers to certain sections of the Act:

   66B  Objects

   (1)  The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

   (2)  Particular objects of this Division include ensuring:

   (a)  that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

   (b)  that parents share equitably in the support of their children.

   66C  Principles—parents have primary duty to maintain

   (1)    The parents of a child have, subject to this Division, the primary duty to maintain the child.

   (2)    Without limiting the generality of subsection (1), the duty of a parent to maintain a child:

   (a)    is not of lower priority than the duty of the parent to maintain any other child or another person; and

   (b)    has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

   (i) himself or herself; or

   (ii)    any other child or another person that the parent has a duty to maintain; and

   (c)    is not affected by:

   (i) the duty of any other person to maintain the child; or

   (ii)    any entitlement of the child or another person to an income tested pension, allowance or benefit.

   66D  Principles—when step‑parents have a duty to maintain

   (1)    The step‑parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step‑parent to have that duty.

   (2)    Any duty of a step‑parent to maintain a step‑child:

   (a)    is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and

   (b)    does not derogate from the primary duty of the parents to maintain the child.

   66G  Court’s power to make child maintenance order

   In proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper.

   66J  Matters to be taken into account in considering financial support necessary for maintenance of child

   (1)    In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

   (a)    the matters mentioned in section 66B; and

   (b)    the proper needs of the child (this is expanded on in subsection (2)); and

   (c)    the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).

   (2)    In taking into account the proper needs of the child the court:

   (a)    must have regard to:

   (i) the age of the child; and

   (ii)    the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

   (iii)   any special needs of the child; and

   (b)    may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

   (3)    In taking into account the income, earning capacity, property and financial resources of the child, the court must:

   (a)    have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

   (b)    disregard:

   (i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

   (ii)    any entitlement of the child or any other person to an income tested pension, allowance or benefit.

   (4)    Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

   66K  Matters to be taken into account in determining contribution that should be made by party etc.

   (1)    In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

   (a)    the matters mentioned in sections 66B, 66C and 66D; and

   (b)    the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

   (c)    the commitments of the party, or each of those parties, that are necessary to enable the party to support:

   (i) himself or herself; or

   (ii)    any other child or another person that the person has a duty to maintain; and

   (d)    the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

   (e)    any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   (2)    In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

   (3)    In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

   (4)    In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:

   (a)    any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

   (b)    the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

   (5)    In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

   (a)    by way of lump sum payment; or

   (b)    by way of transfer or settlement of property; or

   (c)    in any other way.

   (6)    Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

   66L  Children who are 18 or over

   (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.

   The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

   (2)    A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day 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.

   (3)    A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.

5. At the outset of the interim hearing, Counsel for the adult child stated that the above claim of $614 per week represented half the asserted weekly total average personal expenditure of the adult child of $1,228 set out in her Financial Statement filed 5 December 2018.

Evidence

1. The father was born … 1966, and is now aged 52 years.

2. The mother was born on … 1975, and is now aged 43 years.

3. The child has a sibling, [X], born … 2002.

4. In 2017 the adult child completed her Higher School Certificate at a School B, achieving an ATAR of 91.6.

5. The adult child commenced a four year studies at the University in February 2018.

6. The adult child lives at Suburb C.  She asserts that the University campus is about 63 kilometres from her home.  She asserts an estimated travel time by car of between 50 minutes and two hours, depending on traffic.  Public transport, she asserts, takes about one hour and 46 minutes.

7. The adult child asserts that in 2018 during Semester One at University she had two days out of three days finishing at 9 pm, and in Semester Two she had two days out of four days finishing at 7 pm.  She states that for the purposes of safety, she uses her vehicle to commute on late finishing days, rather than public transport.

8. The adult child, inter alia, refers to Annexure C to her Affidavit filed 29 January 2018, being a report from a psychologist, Ms D, dated 1 December 2016.  The report states that the child has a diagnosis of post-traumatic stress disorder (“PTSD”), with the date of diagnosis being 10 May 2016, and the likely duration of such condition being “indefinite”. 

9. Annexure K to that Affidavit, being a report of Ms D, psychologist, dated 16 January 2017, refers to the adult child’s PTSD symptoms, anxiety and panic.  It refers to the adult child being likely to require ongoing treatment for at least a further twelve months to two years.  It states that Ms D believes that with regular engagement in long-term therapy, the prognosis for the adult child is quite good.  It states that Ms D recommended 25 sessions of treatment for the adult child during 2017.

10. Annexure K also annexes a report from Headspace Suburb E dated 18 March 2016, which states that the adult child has been a Headspace client since August 2014 and that she initially presented with symptoms of depression and anxiety.

11. The adult child asserts in her Affidavit filed 29 January 2018 that she was earning $120 per week at the restaurant McDonalds.  In her later Affidavit filed 15 May 2018, she asserts that she has resigned from her position from McDonalds.  She asserts she has secured casual employment through a employer and on average earns $155 per week.  However, she asserts that her travel expenses alone amount to about $130 per week.

12. In the adult child’s Affidavit filed 29 January 2018, she asserts that the mother receives child support from the father.  Presently that child support for the adult child’s sibling is about $383 per week.Again, on 7 December 2018 father agreed to an interim Order, pending the Court’s interim judgement on this application, that he pay $223 to the adult child per week.

13. The adult child asserts that her mother, like the father, is a public servant.  She earns a gross weekly salary of about $2,054.  (The father asserts that his gross average weekly income is $2,174 in his Financial Statement filed 14 June 2018.

14. The adult child’s Financial Statement filed 5 December 2018 refers in Part N to the mother’s weekly expenses.

15. The father asserts that aside from paid casual work, the adult child’s uncle has his own business and would employ her to do some bookkeeping and administrative duties.  Further, he asserts that prior to her employment at McDonalds, the adult child had worked as a customer service officer.

16. The father asserts that he is unable to service the adult child’s demand for $502 per week, and by inference her recent claim for $614 per week.

17. The adult child asserts in her Affidavit filed 29 January 2018 that “our household weekly expenses are expected to be $2,157 per week”.  The father claims that this amount is extravagant and not realistic.

18. The father relies upon the child support assessment, issue date 19 December 2017, for the assessment period 28 March 2018 to 30 June 2018, which provides that the final annual child support amount to be paid by the father to support the adult child’s sibling [X] is $384 per week ($19,973 per annum).

19. The father asserts that the adult child’s weekly expenses are extravagant in many areas, such as entertainment, magazines and books, and clothing and shoes.  In response, the adult child asserts that she requires new clothes because she no longer has a school uniform and will need to purchase more clothes coming into winter.  She also refers to the costs of printing, stationery, and law textbooks and additional texts.

20. It is common ground that the adult child’s household is not eligible for government assistance such as youth allowance or family tax benefits.

21. The mother, the adult child and her sibling reside in a rental property.  The mother’s assets include a vehicle valued at $7,400 and superannuation of about $60,000.

22. The father resides in Queensland with his new partner.  His new partner’s daughters reside at their premises for certain periods.

23. The father annexes to his Financial Statement filed 14 June 2018 a prenuptial agreement with his new partner dated 1 September 2016 providing, inter alia, that the father’s new partner shall continue to support and educate her two children in the manner in which they have been accustomed.

24. The father refers to himself and his partner each having a salary packaged vehicle.

25. The adult child refers to the father and mother reaching a formal agreement in June 2013 that expenses relating to the education and medical needs for the adult child, then a child, and her brother would be shared equally.

26. In paragraph 48 of the adult child’s Affidavit filed 29 January 2018, she asserts that:

    For the sake of my own wellbeing and that of my family, regular and adequate Adult Child Maintenance payments are crucial to enable me to pursue my university studies in studies.

    In response, in the father’s Affidavit filed 14 June 2018, he agrees with this assertion.  However the father states that he:

    would like it noted that the applicant was successful in obtaining early entry to a number of universities. Town F University in fact offered her a position and $3,000.00 scholarship.  Instead the applicant selected a university that has a perceived status rather than selecting an institution that is better suited to the applicant’s location and costs associated in her claim. 

    The father further states that he is committed to financially assisting the adult child in some capacity throughout her four year university degree.

27. In paragraph 54 of the father’s Affidavit, he asserts that he has undergone rigorous financial assessment through Child Support multiple times, and it was deemed that he could only manage about $606 per week to support both children while they underwent full time secondary schooling at a private school.  He states that the formula to work out this amount is obviously an Australian law so “I am simply unable to offer or meet any financial obligation above this amount”.

28. At the outset the Court should state that it is not bound by any such previous financial assessment of the father by the Child Support Agency (or Administrative Appeals Tribunal) relating to his capacity to pay child support for the Applicant adult child in these proceedings.

29. There is a dispute between the parties as to whether or not they continue to share a meaningful relationship with each other.  The adult child asserts that they do, but the father disagrees, giving explanation.

30. The Affidavit of the mother filed 8 January 2019 states, inter alia, that whilst the adult child has suffered from mental health issues over many years, her state of mental health has declined significantly over the past six months.  Annexed to her Affidavit is a report from the adult child’s consulting psychiatrist dated 6 January 2019.

31. The psychiatric report refers to the adult child being admitted to Town G Clinic on 20 December 2018 with a deterioration of her mental state over the preceding six months.  She was diagnosed with chronic PTSD resulting from childhood trauma.  The report refers to the adult child’s symptoms as including flashbacks of her past trauma, hypervigilance and avoidance symptoms.  It states that due to her symptoms she has been experiencing significant psychosocial distress and impairment in function, which have worsened over the past few months.  She avoids going to public places and is highly fearful of social situations.  During her admission, the adult child was unable to tolerate group therapy and was exempted from attending the sessions.  She has been having recurrent and frequent panic attacks on daily basis.

32. The report refers to the adult child having been on several medications in the past but with limited response.  It states that she had started on a medication a week earlier and that the dose was being titrated according to her response.  She was receiving regular supportive therapy.

33. The report states that it is difficult to predict the prognosis of the adult child’s condition, but based on the severity of her symptoms, the adult child will need long term treatment.  Her management will include medications as well as psychotherapy (both individual and group therapy).  She will require weekly individual therapy for at least twelve months as this will assist her to develop better coping skills to be able to resolve her trauma related symptoms.

1. Finally the report states that the adult child’s private psychiatrist, Dr H, will continue to manage the adult child as an outpatient on a monthly basis following her discharge from hospital for the next one to two years, depending on her progress and response to treatment.

2. The mother asserts that the adult child travels to university by a car rather than public transport to provide her with a sense of safety, which is a coping strategy she engages with her anxiety/PTSD, hence she requires support for petrol, registration, parking and related motor vehicle expenses.

3. The mother asserts that the adult child currently does not earn an income, and it is anticipated that she will struggle to manage university studies with simultaneous employment over the long term due to her mental health condition.

4. The mother refers to the adult child’s current daily medication requirements.

5. The mother refers to the anticipated weekly medical costs to assist with the adult child’s mental health totalling $221.

6. The mother asserts that she is the sole income earner for the household and she is struggling to meet all day-to-day expenses.

7. The Court has had regard to the father’s Affidavit sworn/affirmed 4 March 2019.  That Affidavit sought to respond to the mother’s Affidavit filed 8 January 2019.  A significant part of that latter Affidavit is agreed to by the father.  In particular, he agrees with the mother’s assertion that the adult child currently does not earn an income and it is anticipated that she will struggle to manage university studies with simultaneous employment over the long term due to her mental health condition. 

Consideration

1. The Court is satisfied, pursuant to section 66L of the Act, that the provision of maintenance is necessary for the adult child to enable her to complete her education (her course at University, the Court not accepting the father’s contention that it was unreasonable for the adult child to attend University bearing in mind the sparse material on this particular issue), and, separately, because she has a mental disability, namely chronic PTSD. In any event, the Court notes that the father acknowledges that the adult child has a need for adult child maintenance to enable her to complete her studies.

2. Accordingly, at the outset, the issue for the Court is to determine is the weekly financial need of the adult child.  After the Court has determined this issue, it will proceed to determine the mother and father’s financial capacity to meet such need.

3. Based on the material before the Court, the Court would assess that the adult child has the following weekly expenses:

   a)Rent: $185 (as this amount is allowed, being assessed in accordance with the adult child’s last filed Financial Statement, the Court will not allow the amounts claimed in Part N of that Financial Statement for gas, electricity, gardening/lawn-mowing, cleaning, repairs-furnishings and appliances, and water);

   b)Comprehensive car insurance: $35;

   c)Health insurance premium: $56 ($17 per week for basic private health insurance plus $39 increase);

   d)Motor vehicle registration: $20;

   e)Food: $150;

   f)Household supplies: $10;

   g)Telephone: $20;

   h)Petrol: $76;

   i)Car maintenance: $50 (the adult child owns a Motor Vehicle J);

   j)Fares and car parking: $30;

   k)Clothing and shoes: $20 (the amount claimed of $40 per week is not considered reasonable);

   l)Mental health treatment: $221 (no further amount is allowed, noting that an allowance has been made for health insurance premiums);

   m)Entertainment and hobbies: $60;

   n)Holidays: $15;

   o)Education expenses: $130, not including HECS (the adult child asserts that her budget of the educational expenses takes into account student services and amenities fees, printing, stationery, and the minimum requirement of five law textbooks per semester, plus those additional texts that lecturers and tutors require her to purchase);

   p)Chemist and pharmaceutical expenses: $30;

   q)Books and magazines: $10;

   r)Gifts: $10;

   s)Hairdressing and toiletries: $30;

   t)Tolls: $62;

   u)Internet: $10.

4. The total of the above amounts is $1,230 per week.

5. The Court assesses at this interim stage that the adult child has a need for financial support for her maintenance in the sum of $1,230 per week.

6. The adult child is not currently earning an income and it is anticipated that she will struggle to manage university studies with simultaneous employment over the long term due to her mental health condition.  The Court makes no allowance for any regular weekly income of the adult child.

7. The Court now turns to the ability of the mother and father to meet the above need for financial support for the adult child’s maintenance of $1,230 per week.

8. Presently, the adult child is only receiving $223 per week from the father for her financial support. She is presently unable to work and will be unable to work for the foreseeable future by reason of her mental health issues. It is tolerably clear that the primary burden of supporting the adult child’s financial needs has fallen upon the mother in circumstances which suggest that the father is in a superior financial position.

9. The mother’s Affidavit filed 8 January 2019 states, inter alia, that the adult child is well aware of the pressure the mother faces in covering her expenses.  The mother states that she is the sole income earner for her household and she is struggling to meet all day-to-day expenses.  The father does not dispute these assertions of the mother. Those expenses include increased costs for mental health treatment and health insurance, noting the adult child’s mental health deterioration in late 2018. The Court would assess, on all the material before the Court, that there is a significant risk that the mother will not be able to reliably meet the adult child’s assessed financial needs from her own financial resources, and that she has no present financial ability to further support the adult child.

10. The Court then turns to the father’s financial capacity to pay further child support for the adult child, the Court noting in particular the above referred increased costs for mental health treatment and health insurance. Again, the adult child’s proposal is that the father pay her $614 per week.

11. The husband contends that he cannot afford to pay more than $223 per week for the adult child’s necessary maintenance.

12. The husband contends, pursuant to his last filed Financial Statement of 14 June 2018, that his total average weekly income is $2,174 and his total weekly personal expenditure is $2,029, leaving an excess of income over expenditure of $145.

13. The Court should state at this point that this Court is bound to assess the father’s capacity to pay by reference to the material before it; this Court is not bound by the Child Support Agency’s calculations as to the father’s capacity to pay child support, and, in the absence of agreement between the parties to these proceedings, it would be legally impermissible for this Court to accept that Agency’s alleged calculation of the father’s affordability to pay maintenance in the sum of $1,211 per fortnight.  Again, that Agency’s child support assessment findings are not binding on this Court.  This Court is making its own assessment of the father’s capacity to pay maintenance for the adult child based on the material before this Court.

14. The father has a new partner.  She is also a public servant.  She earns $2,043 per week gross.  The father states that the combined assets of himself and his new partner are $650,000 plus superannuation.  He states that he and his partner have one residential property that they reside in.  He states that he and his partner each have a salary packaged vehicle.  He does not expressly dispute the adult child’s assertion that he, with his partner, own two late model vehicles, although their value is unknown.

15. The father’s new partner has two children from her previous marriage.  The father and his new partner entered into a prenuptial agreement in September 2016.  On page 2 of that agreement, it is stated,

    It is agreed that Mr Nolan [the father] shall continue to pay $661 per fortnight and child support (or whatever alternate some that Family Law or alternative agreement with his former wife shall determine) and that Ms K [the father’s new partner] shall continue to support and educate her two children in the manner to which they have been accustomed and to this extent the combined net earnings of the parties shall be available to service these respective family obligations until the date of any separation.  In the event of the separation each of the parties shall assume full financial responsibility for their respective child support.

16. Whilst the above prenuptial agreement of the father and his new partner suggests that the father and his new partner pool resources, the Court is not permitted to take the father’s partner’s income into account (and there are no special circumstances justifying it in doing so at this interim stage).

17. The adult child tendered in evidence at the interim hearing certain subpoenaed documents from the father’s school where he works, from the CBA bank relating to the father’s bank accounts and the AMP bank relating to the father’s accounts.  Inter alia, the purpose of this evidence, from the adult child’s perspective, was to seek to demonstrate that the father had a financial capacity to meet her claim.

18. The above records reveal that the father has paid, inter alia, the following amounts, relating to discretionary expenditure:

    a)$585 to “Holidays” at various times in 2017 and 2018 (it was submitted by the adult child this related to the maintenance of a caravan by the father, with the father asserting in submissions that this caravan does not exist anymore);

    b)$150 for a sports deposit on 29 November 2017;

    c)$212.70 to hairdresser in November 2017

    d)$53.77 for Store in December 2017, being an ongoing regular monthly payment;

    e)$56.17 to Gym in December 2017;

    f)$73.90 to a … restaurant on 23 December 2017;

    g)$17.99 23 to Netflix in December 2017, being an ongoing payment;

    h)$76 to … Store in December 2017, with other expenditure on liquor thereafter;

    i)$40.70 to … Café on 30 January 2018;

    j)$47.80 to … take away on 31 January 2018;

    k)$317 for … clothing on 19 July 2018.

19. The above figures (for example, the ballet deposit and costume) suggest that the father may be supporting his new partner’s children, with the Court noting that the father has no legal obligation to support the children of his new partner.

20. The records under subpoena from the father’s employer appear to indicate that the father salary sacrifices to enable him to use a vehicle.

21. Again, there is a significant suggestion on the material before the Court that the father is in a superior financial position to the mother.  Again the Court is obliged to ignore the father’s new partner’s income as she does not have a legal duty to support the adult child.  The Court can only take into account the father’s legal obligations to support the adult child.

22. The father maintained in submissions that the AMP bank records in particular do not provide an accurate picture of his expenditure.  However, the father did not adduce relevant financial material which might support this submission.  To this extent, at least, the father has failed to make adequate financial disclosure of his full financial circumstances.  The Court takes this into account in assessing his capacity to pay the adult child maintenance: see In the Marriage of Weir [1992] FamCA 69.

23. The father was content at this interim hearing to simply rely upon his affidavit evidence and his financial statements, with a view to establishing that he had no financial capacity to pay the adult child more than $223 per week.  Accordingly, it was left to the adult child to issue relevant subpoenas to produce documents to the above institutions to establish, inter alia, the father’s financial capacity to meet the adult child’s claim.

24. The above monetary examples of the father’s discretionary expenditure, obtained from the subpoenaed financial records in evidence, are not clearly reflected in the father’s Financial Statement filed 14 June 2018.  In particular, the Court notes from that document that the father asserts that his item 32 “Total of all other expenditure” (weekly) total only about $278 (with the $278 figure being broken down and particularised in Part N of that document), which asserted expenses do not sit comfortably when set against the above examples of the father’s discretionary expenditure.

25. Again, the father has a legal obligation to financially support the adult child in the circumstances discussed above, namely where the Court is satisfied that the provision of maintenance for the adult child is necessary to enable her to complete her education, and separately because of that adult child’s mental disability. 

26. Under section 66C of the Act the father has a primary duty to maintain the child (together with the mother). Under that section, the duty of a parent to maintain the child is not of lower priority than the duty of the parent to maintain any other child or another person, and has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or any other child that the parent has a duty to maintain.

27. The Court has taken into account all relevant matters under section 66K of the Act.

28. Doing the best it can, in the above circumstances and at this interim stage, the Court assesses that the father has the capacity to pay the adult child maintenance in the sum of $360 per week. It will be proper in all the circumstances to order that he pay that weekly amount to the adult child, and which amount should be adjusted annually by the Consumer Price Index for Sydney the preceding financial year 1 July each year. 

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 12 April 2019