[2006] FamCA 351
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY No. (P) SYF 4197 of 2004
Re AM
(Adult Child Maintenance)
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE CARMODY
SITTING IN SYDNEY
EDITED FOR PUBLICATION
Dates of Hearing: 13, 14, 15, 16, 17, 20, 21 and 22 March 2006.
Date of Judgment: 10 April 2006.
Appearances: Mr. Wheelhouse of Senior Counsel, instructed by Meyer Pigdon Family Lawyers of Level 14/59 Goulburn Street, Sydney, NSW, 2000, appeared on behalf of the Applicant.
Mr. Kirkham of Queen's Counsel with Mr. Sweeney of Counsel instructed by Delaney Lawyers, of Level 13/99 Elizabeth Street, Sydney, NSW. 2000, appeared on behalf of the First Respondent.
Mr. Doolan, Solicitor of Barkus Edwards Doolan, Solicitors, of Level 9/370 Pitt Street, Sydney, NSW. 2000, appeared on behalf of the Second Respondent.
Name of Case: Re AM (Adult Child Maintenance)
File Number: SYF 4197 of 2004
Dates of Hearing: 13, 14, 15, 16, 17, 20, 21 and 22 March 2006
Date of Judgment: 10 April 2006
Coram: Carmody JCatchwords: FAMILY LAW – CHILD MAINTENANCE – Adult child maintenance – Physical disability under s 66(1)(b) Family Law Act 1975 – Whether an applicant should be denied the right to claim maintenance on the basis that a disability did not exist prior to his or her 18th birthday – Whether the relief provided under s 66L(1)(b) should be limited to dependent children only – Duration of periodic order
Legislation:Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 61C, 65D, 66B, 66C, 66E, 66G, 66H, 66J, 66K, 66L(1)(b), 66L(2), 66P(1), 66S, 66U, 66VA(1)
Cases considered: Anderson v Anderson (1899) 124 Cal 48
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1
Bazeley v Forder (1868) LR3QB 559
Bendall v McWhirter [1952] 2 QB 466
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
B and B [1998] FamCA 1713
Borchert v Borchert 185 Md. 586, 45 A. (2d) 463 (1946)
Branchflower and Branchflower (1980) FLC 90-857
Briginshaw v Briginshaw (1938) 60 CLR 336
Bull v Attorney General(NSW) (1913) 17 CLR 370
C and L [2002] FMCAfam 163
Carpenter and Carpenter (1995) FLC 92-583
Casdorph v Casdorph 194 W. Va. 490, 460 SE2d 736 (1995)
Chantler v Chantler (1903) 6 SR (NSW) 412
Coldingham Parish Council v Smith [1918] 2 KB 90
Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182
Cosgrove and Cosgrove (1996) FLC 92-700
Cosgrove and Cosgrove (No 2) (1996) FLC 92-701
Crain v Mallone 113 SW 67 (Ky. Ct. App.1908)
Curnow v O’Sullivan (1976) 11 ALR 465
Delaney and Delaney (1985) FLC 91-633
Department of Health & Community Services (NT) v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
Dougherty and Dougherty (1987) FLC 91-823
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1998) 159 ALR 664
Filippone v Lee 304 NJ Super. 301, 700 A.2d 348 (App. Div. 1997)Fincham…
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CaseChat Overview and Summary
The primary legal issue before the court was the interpretation of section 66L(1)(b) of the Family Law Act 1975 (Cth), which allows for maintenance orders for adult children who are unable to support themselves due to a "continuing disability." Specifically, the court had to determine whether this provision applied to disabilities that manifested or arose after the child attained the age of 18, or if it was limited to pre-existing disabilities that continued into adulthood.
Carmody J rejected the Registrar's interpretation, which relied on overseas authorities suggesting a "continuing disability" exception only applied to pre-existing conditions. The court found that Australian evidence law, particularly section 140 of the Evidence Act 1995 (Cth), mandates proof on the balance of probabilities and does not recognise intermediate standards of proof as suggested by some of the cited overseas commentary. The court reasoned that the wording of section 66L(1)(b) did not impose a temporal limitation on the onset of the disability, and that the legislative intent was to provide for adult children who, for whatever reason, were unable to support themselves due to a continuing disability. The court also noted that the fear of being "flooded" with applications was not a sufficient basis to narrow the scope of the statutory provision.
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