Re AM (Adult Child Maintenance)
[2006] FamCA 351
•10 April 2006
[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 v Levin 155 So. 2d 883 (Fla. 1. st. DCA 1963)
FM v FM (1997) FLC 92-738
Gamble and Gamble (1978) FLC 90-452
Gillick v West Norfolk & Wisbech Area Health Authority (Gillick’s Case) [1986] AC 112
Gurasz v Gurasz [1970] P 11
Harrington v Harrington (1981) 22 RFL (2d) 40
Hodges v Hodges (1796) Peake Add Cas 79
Kallin v Kallin [1944] SASR 73
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622King v Jones (1972) 128 CLR 221
Kruvant v Kruvant 100 NJ Super. 107, 241 A.2d 259 (1968)
L v L (unreported, FamCA, Mc Grath R, BR8286 of 1991, 12 January 1995)
Manby v Scott (1663) 1 Mod. 124
Mercer and Mercer (1976) FLC 90-033
Moss v Moss 163 Wash. 44, 1P 2d 916 (1931)
Mullane v Mullane (1983) 158 CLR 436
Murrah v Bailes 255 Ala. 178, 50 So. 2d 735 (1951)
Napa State Hospital v Flaherty 134 Cal 315, 66P 322 (1901)
National Assistance Board v Wilkinson [1852] 2 QB 648
Nenke and Nunn [1967] WAR 79
Ogden Industries Pty Ltd v Lucas [1970] AC 113
Oliver and Oliver (1977) FLC 90-227
ON and ON [2005] FamCA 1110
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
Re: Agar-Ellis; Agar-Ellis v Lascelles (1883) 24 Ch D 317
Re: Borthwick (Deceased); Borthwick v Beauvais [1949] Ch 395
Reifek v McElroy (1965) 112 CLR 517
Rose v Department of Social Security (1990) 92 ALR 521
Schultz v Western Farm Tractor Co 111 Wash. 351, 190 Pac. 1007, 14 ALR 514 (1920)Sininger v Sininger 300 Md. 604, 479 A.2d 1354 (1984)
Smith v Smith 227 Md. 355, 176 A. 2d 862 (1962)
Smith; St James; Smith v Wickstein (1996) FLC 92-714
Thompson v Goold & Co [1910] AC 409
Towery v Towery 285 Ark. 113, 685 S.W.2d 155 (1985)
Tuck and Tuck (1981) FLC 91-021
Tynan and Tynan (1993) FLC 92-385
Van Tinker v Van Tinker 38 Wn.2d 390, 229 P.2d 333 (1951)
W and W (1980) FLC 90-872
Wells v Wells 227 NC 614, 44 SE2d 31 (1947)
W & W [2002] FamCA 1143
The applicant was born in 1977 and was 28 years old at the date of the trial. Her parents, the first and second respondents, were married in 1971 and divorced in 1983. Following separation, the applicant lived with her mother, the second respondent. In 1998, at the age of 21, the applicant was diagnosed with urticarial vasculitis arthritis (UVA), which is a degenerative disease that has virtually destroyed the applicant’s capacity undertake gainful employment and given rise to significant ongoing care and special needs.
The applicant brought an application for adult child maintenance against her father, the first respondent, pursuant to s 66L(1)(b) of the Family Law Act 1975 seeking both periodic maintenance and a lump sum payment for necessary alterations to her home by reason of her disability.
The first respondent joined the applicant’s mother as the second respondent to the proceedings and denied liability on the grounds that the applicant’s disability manifested itself after the applicant turned 18, and such later disability cannot revive a pre-existing duty of support which ceased on her 18th birthday.
Held:
1. There is no express age based limitation found in s 66L(1)(b) and none should or needs to be implied. If such restriction was intended it could and should have been clearly stated. Therefore, there is nothing to suggest that relief should be denied solely because the applicant was fit and well on his or her eighteenth birthday.
2. The advantages of s 66L(1)(b) are not limited to ‘dependent’ disabled adult children. While the degree and duration of post-majority dependency undoubtedly has discretionary significance in all adult child maintenance, it is likely to assume more importance in the context of ‘education’ rather than ‘disability’ claims.
3. Although there may be cases where the court’s residual discretion could be exercised to deny a s 66L claim even though all the statutory preconditions to relief had been satisfied, this is not one of them. Neither the date of disability nor the period of dependence has a disentitling effect.
4. Likewise, the strained filial relationship was relevant to quantum but not liability.
5. Notwithstanding the preference for finality in s 81, it cannot always be achieved and finite orders for periodic maintenance may sometimes have to be made to avoid economic injustice or undue hardship even in cases of permanent or total disability.
Introduction
This is a child maintenance proceeding under Div 7, subdiv D of Pt VII of the Family Law Act 1975 (the Act). [1] The applicant is a chronically ill, unmarried, 28 year old woman. The first respondent is her father. The mother is joined as second respondent in a cross-claim for contribution.[2]
1This is because s 66E of the Act which prevents the court from making a child maintenance order under Pt VII if a party to the proceedings is entitled to apply for an administrative assessment of child support for the child under the provisions of the Child Support (Assessment) Act 1989 (Cth) does not apply.
The case was conducted on the footing that the applicant and the second respondent are sympathetic to each other with substantially similar, if not identical, interests in the outcome.
The applicant contends that she has a physical disability within the meaning of the adult child maintenance provisions of s 66L(1)(b) of the Act which makes the provision of maintenance necessary. She seeks orders requiring her father to pay periodic maintenance of $2,256 per week (i.e. $117,312 annually) to support the reasonable cost of appropriate personal care and ordinary living expenses plus a lump sum of $149,053 for recommended structural alterations so that she can continue living in her own home.
The evidence is that she has a rheumatic condition related to the auto-immune system called urticarial vasculitis arthritis (UVA) which was first identified in 1998. It is being treated with an array of medications and therapies.
UVA is a rare degenerative and possibly permanent disease. Symptoms include severe whole of body pain, immobility, and general debilitation. The complaint has virtually destroyed the applicant's current capacity for self-support from paid employment and gives rise to significant ongoing special needs.
The applicant has also been diagnosed with other ailments, including reflex sympathetic dystrophy (RSD), osteoporosis, anorexia nervosa, depression, osteopenia, vitamin D deficiency and hypokalaemia.
The first respondent denies legal liability for maintenance on the basis of the assertion that the applicant’s infirmity did not manifest itself in childhood. He argues, in effect, that a 1998 disability cannot revive a pre-existing duty of support which, by law, ceased on her 18th birthday in 1995. The burden of any moral or social responsibility stemming from his daughter's illness is already being adequately met, he says, by the monthly payment of $1,000 he has been making on an ongoing voluntary basis since the end of 2003.
Alternatively, he disputes the enforceability of any legal liability under the Act on a range of alleged disentitling or discretionary grounds.
Lastly, he questions the quantum of the periodic claim and rejects as entirely inappropriate and unreasonable any compulsory contribution to capital costs. No indefinite order, he submits, ought to be made for any more than the sum of $1,250 per month.
The second respondent, on the other hand, accepts that she has a continuing statutory duty to support her daughter during the period of any proven disability and agrees to abide by any order apportioning maintenance between herself and the first respondent.
She is willing to match the first respondent’s contribution dollar for dollar and has made an open offer to pay up to $1,000 per week and $100,000 in a lump sum [3] or, at least, half the amount of any child maintenance order.
[3]Letter of 28 June 2005, Second Respondent's lawyers to First Respondent's lawyers.
The history of child maintenance in Australia [4]
[4]See generally Dickie A, Family Law, 4th ed, Law Book Co, Sydney, 2002 at 343-349, 455-464, 516- 517.
At common law, a husband had a duty to provide his wife with housing, food, clothing and other necessaries appropriate to his standing in society [5] but only for so long as they cohabited.[6] However, the obligation could (or would) not be enforced by a civil court. [7] Maintenance on divorce was only available in the ecclesiastical courts in the form of an annuity via a decree of alimony. Before 1813 the only sanction for non-payment of alimony was church censure or ex communication. Later, a non-complying husband could be imprisoned on a writ of de contumace capiendo but this was difficult to obtain. [8]
[5] W. Blackstone, Commentaries on the Laws of England Vol. 1 (1765), p.430; Tvp [1972] Fam 40 at 50.
[6] National Assistance Board v Wilkinson [1852] 2 QB 648 at 657.
[7]Manby v Scott (1663) 1 Mod. 124; Bendall v McWhirter [1952] 2 QB 466 at 475-478 per Denning LJ.; and Gurasz v Gurasz [1970] P 11 at 16-17.
[8]Report of the Committee on One-Parent Families, vol. 2, at pp 96-101, cited in Wade, J.H. Property Division upon Marriage Breakdown, CCH (1984) at [1-005] - [1-006].
Otherwise, the husband was only liable for debts incurred by a wife to buy household goods and services under the implied agency of necessity principle.[9]
[9]Hardingham, I J, 'A Married Woman's Capacity to Pledge her Husband's Credit for Necessaries' (1980) 54 ALJ 661-675.
The liability of a father to maintain his legitimate issue was seen as a purely natural (rather than legal) one secured only by the strength of love and affection.[10] As Lord Kenyon stated the position in Hodges v Hodges[11] :
“A father was bound by every social tie to give his children an education suitable to their rank, but it was a duty of imperfect obligation, and could not be enforced in a court of law. The richest man in the kingdom might say to his heir apparent, 'go and earn your daily bread by your daily labour', and the law could not interfere. There is no further obligation than that which nature has implanted in his breast. The law obliged him to nothing but nurture, which duty expired when the child reached the age of seven.” [12]
[10]Bazeley v. Forder (1868) LR3QB 559; ‘Comment, The Parental Duty to Support Disabled Adult Children’ (1959-60) De Paul L. Rev. 245.
[11] (1796) Peake Add Cas 79 at 80; (1796) 170 ER 201.
[12]A father had the guardianship of his children during the age of nurture until the age of discretion. The limit was fixed, by the end of the nineteenth century, at fourteen in the case of a boy, and sixteen in the case of a girl; but beyond this, a father had no actual guardianship except over the heir apparent in which case he was guardian by nature until twenty-one: Re: Agar-Ellis; Agar-Ellis v Lascelles (1883) 24 Ch D 317.
The basis of the duty to maintain a child, according to Blackstone, was a strictly voluntary one arising from the incident of birth. [13]
[13]A Maintenance Agency for Australia: Report of the National Maintenance Inquiry, AGPS, Canberra, 1984 at 1-4.
However, the 'right' and 'duty' to maintain lasted only while the child was unable to support him or herself and even then was limited to necessaries. A father was not required 'to maintain his idle and lazy children in ease and indolence'. [14]
[14] Blackstone's Commentaries at 449.
The first maintenance statute passed in England was the Poor Relief Act 1597 which imposed a direct duty on parents and children to adequately provide for each other. This reciprocal filial responsibility was later extended in 1601 by Stat. 43 Eliz. Ch. 2 sec 6 (the Statute of Elizabeth) to include grandparents and grandchildren.
Coldingham Parish Council v Smith [15] is clear authority for the proposition that apart from contractual agreements and the quasi-criminal duty under the Statute of Elizabeth, there was no civil liability to reimburse a public authority for any sustenance it provided to an indigent imbecile child.
[15] [1918] 2 KB 90
The Statute of Elizabeth was repealed and replaced in the UK in 1948. Similar 'pauper laws' were passed in many of the US jurisdictions in the eighteenth and nineteenth centuries but no such enactment ever formed part of the laws of Australia. [16]
[16]Interestingly, however, s 92 of the South Australian Community Welfare Act 1972-1975 (since repealed) imposed a legal duty on a child to maintain parents and step-parents.
Thus, all a father really had to do in relation to his children under early colonial laws was to provide them with the bare necessities of life. Paternity did not impose any burden to alleviate against poverty in Australia until the mid-1800's when the first anti-destitution legislation was passed, enabling wives, mothers and children left without adequate means of support to apply against defaulting husbands or fathers for relief from economic hardship. [17]
[17] eg. Maintenance Act 1837(Tas) and Deserted Wives and Children Act 1840 (NSW).
These maintenance Acts were a policy-driven response to the plight of wives and children who become dependent on the public purse or charity as a result of desertion, especially in the gold rush period of our history. [18]
[18] Report of the National Maintenance Inquiry, op. cit., at 4.
In Chantler v Chantler [19], Darley CJ held that there was no jurisdiction in New South Wales independently of these statutes to compel parents to support needy children.
[19] (1903) 6 SR (NSW) 412 at 413.
Fogarty J extensively reviewed the legal responsibility of a parent for maintenance of a child at common law in Gamble and Gamble[20] and reached the same conclusion.
[20] (1978) FLC 90-452.
Child and spousal maintenance issues were later dealt with in State and Territory enactments until picked up in 1961 by the Matrimonial Causes Act 1959 (Cth) as ancillary to the federal matrimonial relief jurisdiction.
The Family Law Act 1975, however, was the first piece of legislation in Australia to give a child the personal right of action directly against a parent[21] and now encompasses almost all matters relating to the maintenance of parties to and children of a marriage.[22]
[21] See par (cb) of the definition of matrimonial cause in s 4.
[22] cf Child Support (Assessment) Act 1989 (Cth).
Under s 61C(1) of the Act each parent of a child who has not attained the age of 18 has parental responsibility for the child. This includes the primary duty to provide a proper level of financial support to their dependent minor children.[23]
[23] s 66C(1) of the Act.
The maintenance duty applies with equal priority to every child of the parents and takes precedence over all other (financial) commitments except for those (reasonably) necessary for self-support and to fulfil a (legal not moral) duty to maintain another child or person.[24]
[24] s 66C(2)(b)(i).
Parental responsibility is not affected by any changes in the domestic relations of the parents. Thus, after separation or remarriage, the parent with whom the child mainly lives or spends most time with has no greater power or heavier duty in relation to the children of the marriage than he or she had when the family was intact.[25]
[25] s 61C(2).
Nor is the obligation diminished by an equivalent liability to maintain the child imposed on anyone else or any entitlement he or she may have under welfare laws.[26]
[26] s 66C(2)(c)(i)-(iii)
Naturally, parental responsibility in relation to children dwindles as they gradually acquire enough understanding and intelligence to choose their own consequences,[27] but it does not formally end until the age of majority is reached which in New South Wales and all other Australian States and Territories is 18. [28]
[27] Gillick’s Case [1986] AC 112; Marion’s Case (1992) 175 CLR 218 at 237-239, 278, 290,
293-294, 311, 314-315 and 317.
[28] cf Minors' (Property and Contracts) Act 1970 (NSW); King v Jones (1972) 128 CLR 221,
in which it was held at 239, 245-246, 264 and 268-269 that for purposes of Commonwealth law a person reaches full age at the common law, that is, twenty-one, unless a particular statute provides otherwise for its own purposes.
The duty to support adult disabled children
A central issue in these proceedings is – whether the respondents have any legal liability to financially support the reasonable needs of his daughter under s 66L(1)(b) of the Act or is it just the socially proper or right thing to do? [29]
[29] cf Gamble and Gamble (1978) FLC 90-452 at 77,304 per Fogarty J.
The respondent father argues that there is no such duty unless the relevant disability is carried over from childhood into adulthood and that the nexus is clearly established by the evidence.
The first respondent also contends that once the link of dependency is broken by either majority or independence it cannot be restored by an after acquired disability. That is to say, like Humpty Dumpty, the tie of dependency once cut, can never be put back together again.
The applicant and the second respondent jointly submit that the timing of the disability is irrelevant to the first respondent's maintenance liability under s 66L and no qualification of the clear expressions used in s 66L(1)(b) should be implied.
The US position
Most jurisdictions in the United States tend to recognise an abiding duty on a parent to support an incapacitated adult child [30] but not an able bodied one. [31]
[30]Dransfield M C, ‘Annotation, Parents Obligation to Support Adult Child’, 1 ALR2d 910 (1948); ‘Comment, The Parental Duty to Support Disabled Adult Children’, 9 De Paul L Rev 245 (1960).
[31] Fincham v Levin 155 So. 2d 883 (Fla. 1. st. DCA 1963).
In Crain v Mallone [32] it was held that :
“The duty and obligation of a parent to care for his offspring does not necessarily terminate when the child arrives at age or becomes an adult; nor is it limited to infants and children of tender years. An adult child may from accident or disease be as helpless and incapable of making his support as an infant, and we see no difference in principle between the duty imposed upon the parent to support the infant and the obligation to care for the adult, who is equally, if not more, dependent upon the parent. In either case the natural as well as the legal obligation is the same, if the parent is financially able to furnish the necessary assistance.”
[32] 113 SW 67 (Ky. Ct. App. 1908) at 68.
The court in Van Tinker v Van Tinker[33] found that "(t)his obligation is one created by the common law". [34]
[33] 38 Wn.2d 390, 229 P.2d 333 (1951).
[34] at 334.
No such rule is recognised in Australia nor, it appears, in England where the common law originated.
Other cases trace the duty to statutes based on the old Statute of Elizabeth.[35]
[35]Smith v Smith 227 Md. 355, 176 A.2d 862 (1962); . Anderson v Anderson (1899) 124 Cal 48; Moss v Moss 163 Wash. 44, 1P 2d 916 (1931); Napa State Hospital v Flaherty 134 Cal 315, 66P 322 (1901).
In Smith v Smith, [36] for instance, a state law based on the Elizabethan statute was held to be a clear indication of legislative intention to place the failure to support an incapacitated child on an equal footing with the non-emancipated child.
[36] 227 Md. 355, 176 A. 2d 862 (1962).
The court in Wells v Wells[37] justified a legal duty to maintain an adult child in need solely on public policy grounds and the "dictates of humanity".
[37] 227 NC 614, 44 SE2d 31 (1947).
There, a father was held liable to financially support his son who was incapable of earning a living due to mental incompetence on the basis that his incapacity (which existed before he turned 21) rebutted the normal presumption of 'emancipation' by age and preserved the father's maintenance obligation indefinitely.
Emancipation occurs under settled US principles when the fundamental relationship of dependence between parent and child is terminated (usually as a result of maturity or marriage) and the rights of custody and guardianship are surrendered. When this happens the child loses any entitlement to parental assistance and the parent is at the same time relieved of the burden of support.
A child is treated as unemancipated when he or she has not obtained independent status or moved “beyond the sphere of influence and responsibility exercised by a parent”.[38]
[38]Morgan L, ‘The Duty to Support Adult Disabled Children’ < dl/child support/97Oct188.shtml> at p 8.
The obligation to support such a child ceases, according to a 1920 Washington State decision, only when the necessity for it ends.[39] On this view, a mentally and physically incompetent adult child is just as helpless as an infant and should in fairness be treated as such for maintenance purposes.[40]
[39] Schultz v Western Farm Tractor Co. 111 Wash. 351, 190 Pac. 1007, 14 ALR 514 (1920).
[40] Dransfield M C, op. cit. at 249.
The widespread recognition of the duty was noted in Borchert v Borchert [41]:
“The doctrine of liability in a father to support an incapacitated adult child seems to have permeated the courts of this country, in many cases without any statutory enactment to support it. The obligation is set out in a great many cases, often in those judicial expressions known as obiter dicta. In some cases the basis of liability is lack of emancipation. In others it is stated to be the moral duty and is indicated that the legal duty follows the moral duty. However, vague and unsatisfactory such statement are it must be concluded, in view of the many decisions so holding, that there is now a tendency in this country, whether based upon local statutes or upon a modern judicial expansion of the common law, to recognise a duty imposed upon a parent to support his incapacitated child.”
[41] 185 Md. 586, 45 A. (2d) 463 (1946).
The court, however, doubted but then did not have to ultimately decide the legitimacy of this trend because the father in that case conceded a common law liability to care for his disabled children regardless of their age. [42]
[42]The Maryland Code (1957) Article 27 s 97 was later passed to put the question beyond doubt and make parents with means criminally (not just civilly) liable for destitute adult children deprived of self support through physical or mental infirmity.
Some jurisdictions require a claimant to have remained under the control of and be dependent on parental support due to, for example, education, health or employment reasons. Children in this category are treated as being unemancipated for so long as the dependency itself endures (the so-called nexus of dependency). Thus, where an ongoing dependency is due to disability the duty of parental support will continue for the period of the disability.
Under this principle, an apprentice plumber, injured as a result of an accident on a work-site at a time when he was still living at home and economically dependent on his parents and therefore unemancipated would retain his childhood maintenance rights and his parents would remain under a corresponding duty to continue supporting him until he had recovered or, arguably, became economically self sufficient on receipt of an insurance pay-out or compensation award. It is the dependency, not the disability, that counts.
Other states, however, openly disavow the emancipation rationale and recognise a continuing duty based on disability alone.
In Kruvant v Kruvant [43] the New Jersey State Court held that a divorced father may be required to contribute to the fair cost of care and maintenance of an invalid child incapable of maintaining him or herself, but only where the disability existed prior to emancipation.
[43] 100 NJ Super. 107 (1968) at 118.
In the later decision of Towery v Towery[44], the Supreme Court of Arkansas held that a parent’s liability ceases upon the child attaining majority and it cannot be “reimposed” by a disability which manifests after the child attains majority.
[44] 285 Ark. 113, 685 S.W.2d 155 (1985)
On this logic, where there were two adults both incapacitated, one for five years after and the other for the six years before majority, the result would be that one gets support while the other does not. [45]
[45] See the comments in Sininger v Sininger 300 Md. 604, 479 A.2d 1354 (1984)
Kruvant was recently affirmed and applied in Filippone v Lee. [46]
[46] 304 NJ Super. 301; 700 A.2d 348 (App. Div. 1997).
There, the parties' son ran away from home in 1991 at 14 and ended up on the streets of New York. In 1994, he was living in a city boys home and enrolled in a tertiary institution but failed to pass a subject with the result that his enrolment lapsed. The boy sustained serious injuries from a violent stabbing when he was 19.
A claim for maintenance at the suit of his mother was rejected on the basis that both parents were relieved of their statutory obligation to support their son when he abandoned his studies in 1995 and the serious disability he sustained in 1996 did not restore him to an unemancipated state or regenerate his parents’ liability of support.
In Sininger v Sininger,[47] a state Court of Appeals decided that parents owe an enforceable duty of support to an incapacitated adult child only where a pre-existing disability prevents him or her from ever becoming emancipated regardless of when the disability commenced. In that case a daughter became mentally ill in adulthood. A maintenance order in her favour was upheld on appeal. The rationale for this the court said :
“. . . is that because the child is incapable of emancipation(s), he remains a minor and the obligation continues until the condition changes.”
[47] 300 Md. 604, 479 A.2d 1354 (1984)
Liability was not reinstated on this reasoning because it had never been lifted by emancipation.
The court explicitly rejected a nexus of disability argument because the relevant statutory provision did not identify the date of incapacity as a condition precedent to liability. Of course, in practice, disability and dependence go hand in hand and are often likely to co-exist in a symbiotic relationship.
However, in many jurisdictions neither a nexus of disability nor continuing dependence is needed to underpin liability and, according to one writer on the subject, these qualifications
" . . . are not a precedent to statutory liabilities and are not required in the greatest number of cases decided on general principles". [48]
[48] Dransfield M C, op. cit. at 250.
The Australian approach
Harsh as it may sound to modern humanitarian ears the common law doctrine of non-liability to provide for an adult child unable to earn a living due to some physical or mental defect has never really been doubted by the courts here.[49] The parental obligation to financially support a child in this country ends at 18 in line with s 61C of the Act, even in the case of physical or mental incapacity, and no curial support can be found for any unwritten exceptions to this rule.
[49] cf. Napa State Hospital v Flaherty 134 Cal. 315, 66 P. 322 (1901).
Section 84(4) of the Matrimonial Causes Act 1959 (Cth) invested the court with jurisdiction to make an order for maintenance of a child of the marriage who had attained the age of 21 but confined to situations where special circumstances justified it.
Between 1976 and 1988 (when the Family Law Amendment Act 1987 commenced), spouses were required by the Act to maintain their underage nuptial children according to their respective financial resources.
New child maintenance provisions inserted into the Act in 1987 were located in Pt VII Div 6. Discretionary power to make child maintenance orders was conferred by s 66F (now 66G). The procedure was governed by s 66C (66H), s 66D (66J) and s 66E (66K). Adult child maintenance orders were dealt with in s 66H and limited to education and health related issues.
Division 6 became Div 7 when the Act was amended in 1995.
The duty of a parent to support disabled adult children is now fully codified in the second limb of subsection 66L(1)(b) (formerly ss 76 and 66H) which relevantly provides:
A child maintenance order in relation to a child who is eighteen or over must not be made unless the court is satisfied that the provision of maintenance is necessary . . . because of a mental or physical disability of the child. [50]
[50] The other stated reason justifying an order for child maintenance under the Act is to enable a
child to complete his or her education: s 66L(1)(a).
The balance of subsec (1) and (2) of s 66L envisage the situation of a child maintenance order being made to commence on or continue after the child turns 18.
The provision reflects the Western cultural tradition that adults are ordinarily expected to take primary responsibility for maintaining themselves and is the only recognised exception to the general rule that a parent's duty to support a child lasts only until his or her 18th birthday.
Section 66L(1) integrates right with remedy. That is to say, the right of a disabled child to maintenance can only be pursued and enforced by means of the remedy or relief the section itself provides. Conversely, no enforceable legal duty to support a disabled adult child exists except under its terms.
It was settled by the Full Court in Smith; St James; Smith v Wickstein [51] that while s 66L creates the conditions under which the power to make an adult child maintenance order is to be exercised, the remaining provisions of subdiv D of Div 7 of Part VII of the Act (formerly Div VI) govern the actual assessment process. Thus this application is to be determined as if it had been brought by the applicant before she attained the age of majority except to the extent that the reality of the situation dictates otherwise.
[51](1996) FLC 92-714 at 83,592-593. This case resolved the inconsistent first instance decisions of Tynan and Tynan (1993) FLC 92-385 and Carpenter and Carpenter (1995) FLC 92-583. In Tynan,Moss J held that with the possible exception of s 66H itself and possibly s 66J (now s 66P) the other sections of the Division were concerned solely with non-adult children, whereas Chisholm J held in Carpenter that the terms “child” and “children” relate to a relationship rather than an age, and therefore the other provisions of the Division applied equally to adult and minor children. Sitting in the trial division in Cosgrove and Cosgrove (1996) FLC 92-700, Warnick J affirmed that the provisions of Div 6 (now Div 7 of Part VII of the Act) applied generally to applications for maintenance of children over 18. Accordingly, under ss 66H (now 66C), 66E (66K) and, in particular, 66F (66G) a discretion to make such an order as is proper undoubtedly exists.
The guiding principle is what, in all the circumstances, is reasonable.[52]
[52] Cosgrove and Cosgrove (No 2) (1996) FLC 92-701.
The meaning and effect of s 66L(1)(b)
Most of the decisions on the meaning and effect of s 66L are so-called 'education' cases and in the main deal with the first, rather than the second limb of the section. However, some of the statements of principle apply to both and survive slight textual changes to the Act over the years.
The term 'necessary' in s 66L(1) means something more than morally or socially 'desirable' [53] but less than 'absolutely necessary'. [54]
[53] Gamble and Gamble (1978) FLC 90-452.
[54] Tuck and Tuck (1981) FLC 91-021.
The provision of maintenance for a child over the age of 18 is necessary in the relevant sense if the child reasonably needs it because he or she is handicapped in some way. [55]
[55] Tuck at 76,227 per Strauss J and ON and ON [2005] FamCA 1110.
The word 'disability' in s 66L(1)(b) refers more to consequences than causes. A disabled person lacks mental power or a physical faculty (or both) and is restricted in the way he or she lives or moves.
The applicant clearly suffers from a physical disability which manifests itself as chronic joint pain, muscle wasting, restricted movement, osteoporosis, synovitis in the right hand, generalised weakness and the inability to walk unaided for any distance.
She cannot manage herself and requires ongoing personal care and attention.
Does it matter when the disability arose for the purposes of s 66L(1)(b)? [56]
[56]See generally Pearce D C and Geddes R., Statutory Interpretation in Australia, Butterworths, Sydney, 2001, especially at pp. 3-11, 20-30 and 227-230.
The answer to this intriguing question lies, of course, in the correct construction of the words of the section.
The task is not to try to find and give expression to the legal concepts underlying the legislative language. Rather, the fundamental responsibility of a court interpreting the words of a statute is to give effect to the legislative intention as it is expressed or implied. [57]
[57] Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13 per Mason J.
In ascertaining the intended meaning of s 66L(1)(b) I am not bound by the meaning ascribed to it elsewhere. Previous authorities and decisions may assist and guide but they cannot relieve me of the task of construing the provisions for myself unless bound by clear superior authority. Beyond that, the observations of other judicial officers are entitled to no more than due respect. [58]
[58] cf. Lord Upjohn's comments in Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127(PC).
If I am not satisfied that an interpretation advanced by any of the parties is correct it would be wrong to adopt it.
Remedial or beneficial provisions of an Act are construed generously to ensure that a genuine claim for relief is not denied or rejected on a technicality.
The Act was held to be a beneficial statute in Curnow v O'Sullivan (No 2).[59] Its provisions can therefore be interpreted liberally ". . . so as to give the fullest relief which the fair meaning of its language allows". [60]
[59] (1976) 11 ALR 465 at 467.
[60] Bull v Attorney General (NSW) (1913) 17 CLR 370 per Isaacs J (dissenting) at 384.
The construction placed on it must, of course, stay within the confines of the actual language.
The claimant undoubtedly belongs to the class of claimant s 66L(1)(b) was intended to benefit. Accordingly, as well as being entitled to the beneficial interpretation approach referred to above, any ambiguity is to be resolved in favour of the applicant as beneficiary. However, neither the nature of the benefit nor any uncertainty in the section can be used to extend the ambit of its intended operation. [61] Its true meaning cannot be strained or exceeded on the basis of some idiosyncratic view of the ends of justice. [62]
[61]cf. Rose v Department of Social Security (1990) 92 ALR 521 at 524, where the Full Federal Court noted that enabling and excepting provisions in remedial legislation did not thereby have to be given a liberal interpretation. It depended upon the purpose of the provision. As the authors point out in Statutory Interpretation in Australia op. cit., at 230 [9.5] exceptions may be included in the legislation to provide the practical balance between competing public interests. They should therefore be interpreted carefully in order not to destroy that balance. Legislation aimed at resolving difficult social problems will very often represent finely balanced political choices. Simply to treat all the provisions of the legislation as requiring a liberal interpretation is too simplistic an approach : Commonwealth v HREOC (1998) 152 ALR 182 at 189 and 215.
[62] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638.
In Thompson v Goold & Co[63] Lord Mersey said :
“It is a strong thing to read into an Act of Parliament words which are not there and in the absence of a clear necessity it is a wrong thing to do.”
[63] [1910] AC 409 at 420.
This test contrasts with the suggestion by McHugh JA in Bermingham v Corrective Services Commission of New South Wales[64] that the 'reading in' of inadvertently omitted words can be a legitimate device to give effect to the obvious purpose of the legislation provided that the meaning of the words actually used is not altered as a result. [65]
[64] (1988) 15 NSWLR 292.
[65] Pearce D C & Geddes R, op. cit. at 40-43.
It is legitimate to adopt the meaning that avoids injustice or absurdity[66] but arguments based on unsatisfactory results or incongruity cannot be allowed to obscure or defeat the true parliamentary intent,[67] irrespective of the consequences for a litigant.
[66]Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 per Gibbs J.
[67] Esso Australia Resources Ltd v FCT (1998) 159 ALR 664 at 670.
Section 43 of the Act requires the court, in exercising its jurisdiction under the Act (including, presumably, construing its terms), to give attention to (b) the need to give the widest possible protection and assistance to the family, particularly while it is responsible for the care and education of dependant children, and (c) the need to protect the rights of children and promote their welfare. These statutory principles are mandatory and must be kept firmly in mind when both construing the provisions of the Act and considering whether to grant any discretionary relief under it. However, they are simply guiding principles not prescriptive rules.[68] They aid, not govern, the discretionary process. Their role in the context of adult child maintenance claims is clearly limited. So too is the function of the object and underlying principles of Part VII in s 60B(1) and (2).[69]
[68] Dickey A, op. cit. at 94-96.
[69] cf. B & B [1998] FamCA 1713.
Section 65E of the Act of course does not apply to Div 7 so that the best interests of the child is not the paramount consideration in a child maintenance case.[70]
[70] s 65D.
In FM and FM [71] Reg. McGrath refused an application for child maintenance brought on behalf of a 19 year old child with cerebral palsy and associated mental deficits.
[71] (1997) FLC 92-738.
The subject child had been mentally ill since her earliest years but failed because she did not discharge the heavier than usual onus (sic) said to be on her to prove that she had no earning capacity.
The source of the Registrar's ruling in FM seems to be the following passage in an online article published by Laura Morgan in 1997:
Because the duty to support a child ordinarily terminates when the child reaches the age of majority, it is up to the party asserting that the burden should not terminate to show that the adult child is in such a feeble and dependent condition physically or mentally as to be incapable of supporting him or herself. Moreover the burden is generally not just a preponderance of the evidence but is clear and convincing evidence. [72] (emphasis added).
[72]Morgan L, ‘The Duty to Support Adult Disabled Children’ < source.com/research/ dl/childsupport/97Oct188.shtml> at p 8.
However, the law of evidence in Australia applies only two standards of proof, criminal and civil, and has resolutely resisted all past attempts to introduce intermediate tests. [73]
[73]cf. Heydon J D, Cross on Evidence, 6th Ed, Butterworths, Sydney, 2000 at Vol 1[9010] - [9040]; Rejfek v McElroy (1965) 112 CLR 517 at 521.
The degree of cogency which evidence must reach in order to discharge the legal burden of proof in a civil case – including family maintenance proceedings – is firmly fixed by s 140 of the Evidence Act 1995 (Cth). A case (allegation or issue) is proved if the court is reasonably satisfied of its essential elements on the balance of probabilities taking into account the nature of the action or defence, the subject matter of the proceeding and the seriousness of the allegation. Another material but unspecified matter is, of course, the gravity of the consequences for a party. [74]
[74] Briginshaw and Briginshaw (1938) 60 CLR 336 at 361 per Dixon J.
In reaching his conclusion on the general legal liability of parents to support their disabled adult children, McGrath R referred to a decision of the Ontario Court of Appeal [75] and several judgments by US courts[76] which all held that local maintenance statutes contained a continuing disability (or nexus) exception to the general common law rule that a parent had no de jure duty to support his adult children, but the special duty did not cover disabilities incurred in adulthood. In other words, where pre-existing disabilities survive majority so too does the parental duty of support but once extinguished by, for example, independence or majority an enforceable civil (as distinct from moral) responsibility cannot be restored or reinstated by subsequent tragedy.
[75] Harrington v Harrington (1981) 22 RFL (2d) 40.
[76] Murrah v Bailes 255 Ala. 178, 50 So. 2d 735 (1951); Kruvant v Kruvant 100 NJ Super.
107, 241 A.2d 259 (1968) and Casdorph v Casdorph 194 W. Va. 490, 460 SE2d 736 (1995).
In reliance on these cases, the Registrar reasoned that s 66L(1)(b) was intended to cover situations where maintenance is necessary to support the child claimant because of a ‘continuing’ mental or physical disability but did not cover injuries that occurred sometime after the child turned 18. Otherwise, he feared, the courts would be flooded with applications for maintenance by or on behalf of disabled children substantially over the age of 18 years, and perhaps even well into their 30's and 40's.
Reg. McGrath had earlier reached much the same result (albeit for different reasons) in L & L.[77]
[77] (Unreported, FamCA, McGrath R, BR8286 of 1991, 12 January 1995).
In that case a father sought reimbursement from the mother for substantial medical and evacuation expenses paid when their 25 year old daughter had contracted encephalitis on a visit to Kenya. The Registrar dismissed the claim because the disability occurred seven years after majority where there was no evidence that the child had been dependent on her parents at the time. The expenses claimed by the father were held not to be in the nature of “maintenance” within s 66H (now s 66L) of the Act.
Having directed himself in line with Kallin v Kallin [78] that ‘maintenance’ relevantly meant:
“…the act of maintaining and denotes the regular supply of food clothing and lodging; the provision of the necessaries and conveniences of life.”
McGrath R went on to decide that the father’s undertaking to reimburse his daughter’s travel insurers did not fall within s 66H.
[78] [1944] SASR 73 at 75.
Maintenance, however, is a term of generous import in the family law context and is commonly understood to mean something more than mere subsistence or necessaries of life. It includes financial provision for all reasonable, current and likely future daily requirements, including out of pocket, adequate housing, health[79] and education related expenses, as well as any special needs.[80] It is not a single concept concerned only with the payment of money. There is no reason in principle why a maintenance order cannot involve, for example, direct provision of goods or services. [81]
[79] Delaney and Delaney (1985) FLC 91-633 at 80,116.
[80] Re: Borthwick (Deceased); Borthwick v Beauvais [1949] Ch 395.
[81]Mullane v Mullane (1983) 158 CLR 436; cf. Branchflower and Branchflower (1980) FLC 90-857 at 75,454 per Emery J (dissenting).
Thus, the relevant concept of ‘maintenance’ under the Act appears to be considerably wider than Kallin suggests.
In B & B [82] Carter J dealt with a mother’s application for the payment of maintenance in the weekly sum of $590 until such time as the parties’ daughter obtained her first degree or diploma or, alternatively, for the duration of periods of disability due to Crohn’s disease.
[82] [1998] FamCA 1713.
The medical evidence did not establish the alleged diagnosis but her Honour was satisfied that the child was suffering from an incapacitating illness and unable to perform any significant work for at least three months. The father was willing and able to pay maintenance and had always done so in the past. Her Honour held the application had been instigated by the mother - an untruthful, manipulative and selfish woman - to damage the father economically but carefully avoided apportioning blame for the admittedly tenuous father - daughter relationship.
The learned judge declined to follow the approach taken by Registrar McGrath in FM. She did not think it necessary or appropriate to import a silent requirement into par 66L(1)(b) that the disability predate majority and refused to elevate such a factor to the status of a precondition to liability or jurisdiction. Obstructing access to the beneficial provision in s 66L with implied limitations was, she said, “going too far”. Her Honour accepted, however, that when the disability occurred was a relevant discretionary factor likely to vary in significance depending on the gap between the date of disability and the age of majority. [83]
[83]The potential duration or operative period of proposed orders was also seen by her Honour as a ‘highly relevant’ discretionary consideration but nothing more.
Carter J also dismissed any suggestion that a claimant for maintenance under the second limb of subsec 66L(1) bore a higher ‘onus’ than a child seeking education maintenance under the first limb of the same section and held that the potential duration or operative period of proposed orders was seen by her Honour as a ‘highly relevant’ discretionary consideration but nothing more.
FM was distinguished by Roberts FM in C & L[84] on the basis that the child’s proven inability to work due to schizophrenia justified a maintenance order. [85]
[84] [2002] FMCAfam 163
[85] at [50].
Barry J mentioned FM in the 2002 first instance case of W & W[86] where the mother of a mentally disordered son unsuccessfully claimed $1653 a month for ongoing indefinite support and $7500 for accrued credit card liabilities incurred in maintaining him.
[86] [2002] FamCA 1143 at [41].
The son was found to have lived a nomadic existence on the streets of Auckland for three years from 1997. He had been living independently for substantial periods, was in gainful employment at times, and had fathered two children in New Zealand. Although he had always been partially dependent on his mother the ‘nexus of dependency’ between his father and him had ceased many years ago.
Barry J accepted that the son had been smoking marijuana as early as 13 and exhibited a predisposition to the mental illness in childhood but did not show any sign of psychological disturbance until aged 20 or 21. His Honour dismissed the application in the exercise of his discretion because [87] :
“. . . the child is 28 years of age . . . [T]he application is made in a country in which he has lived . . . for less than 12 months . . . and . . . could not have been brought in his native New Zealand. The application is for general support based on a disability which has only become evident after he attained adult status. There has been no continuation of a nexus of dependency and the liability under the orders sought would be seemingly open ended.” (emphasis added)
[87] at [29].
The mother was also unable to prove the son’s precise needs at the date of hearing and therefore failed to discharge the burden of proof in that regard.
In disposing of a submission advanced on behalf of the respondent that liability under s 66L(1) was conditional on the disability pre-dating adulthood the learned judge noted the absence of any Australian authority for the proposition and that the United States decisions appeared to be to the contrary. He (correctly) identified the statements in FM on the 'nexus' question as obiter but appears to have (mistakenly) thought that the Registrar had decided that the benefit of the section “. . . extended to cases where mental or physical disability occurred after the child turned 18”. The Registrar, of course (wrongly it seems), reached the opposite conclusion.
I respectfully agree with Carter J's conclusions in B & B.
The language of s 66L is plain and unambiguous. There is no express age based limitation and none should or needs to be implied. The section does not refer to a ‘childhood’ disability. If such restrictions were intended it could and should have been made clear as crystal. Equally, there is no reason for believing that ‘temporary’ disabilities are within the ambit of the section while ‘permanent’ ones are outside its confines. No distinction is apparently drawn between ‘partial’ or ‘total’ disabilities either.
Admittedly, drafting legislation is not an exact science. The language does not always convey the intention. Messages can be lost in translation. The words used do not necessarily say what they mean or mean what they say. It would, for instance, have been just as easy for the drafter to have used the phrase ‘reasonably necessary’ in s 66L(1) rather than ‘necessary’ if that is what was really meant. Yet, the implication of a requirement of reasonableness in that section is supported by strong judicial authority.
Nonetheless, neither the literal nor purposive interpretation of s 66L(1) or overall scheme of Div 7, in my view, justify the benefit of the section being restricted to a child who proves a nexus of dependence and/or has a continuing disability. Nor, conversely, is there any indication that children incapable of independent living due to a disability acquired in adulthood should be denied relief solely because they were fit and well on their eighteenth birthday.
Why should the making of a child maintenance order benefit a child whose handicap can be traced back to childhood yet another child with a more insidious unapparent disability fail because it was not detected or perhaps even detectable until well into adulthood?
Likewise, the section cannot have been intended to deprive an 18-year-old woman of a child maintenance order in circumstances where both she and her 17-year-old brother are permanently maimed in the same car accident.[88]
[88]This example was used to illustrate the anomalous consequences of the emancipation rationale in Sininger v Sininger 300 Md. 604, 479 A.2d 1354 (1984).
The difficulty of applying a nexus of disability test can also be illustrated by another example. A prodigal son with self-induced psychosis from overusing illicit drugs at 17 would be able to rely on his father's support indefinitely, even well into retirement, while his 22 year old sister who went blind at 21 due to a genetic defect inherited from her parents would be left without any enforceable right of support against the very people who had unwittingly caused the problem in the first place. Such a bizarre result cannot have been intended by the drafters of this beneficial provision.
A date arbitrarily allocated by the law as the 'emancipation' of a child, in my view, cannot be called in aid to thwart an adult maintenance claim that otherwise satisfies the conditions stated in s 66L(1)(b).
The section provides for an order to be made in favour of a disabled child. Subsection 66L(2), by contrast, allows such an order to continue after or begin on the eighteenth birthday of a disabled child. This too is an important consideration, in my opinion, when construing s 66L. The presence of s 66L(2) is a definite sign that the legislature did not intend to limit the benefit of the section or the relief it gives to a continuing disability situation.
The interpretation contended for by the first respondent cannot be right. It is immaterial to the issue of liability, in my opinion, whether the relevant disability arose before adulthood or not. It may, however, have significant discretionary importance: see the comments of Carter J in B & B.
Does s 66L(1)(b) require proof of a nexus of dependence?
No. The provision talks in terms of a disability not dependence. Any adult child with a disability in need of maintenance has a patent right to apply for it under s 66L(1)(b). The advantages of the section are not limited to 'dependent' disabled adult children. It is likely (although not strictly necessary for me to finally decide) that an able-bodied adult child who has always been totally or partially dependent on one or other of his parents has no right at law to convert their generosity into a legal liability under the Act.
However, as Warnick J made plain in Cosgrove, the degree and duration of dependency undoubtedly has discretionary significance in all adult child maintenance cases but is likely to assume considerably more importance in the context of 'education' rather than 'disability' based claims.
Is there a residuary power to disallow otherwise valid claims on discretionary grounds?
It was suggested by Moss J in Tynan and Tynan [89] that the Court retains a discretionary power not to exercise its adult child maintenance jurisdiction even though the threshold conditions in s 66L(1) are satisfied.
[89] (1993) FLC 92-385 at 79,983
None of the parties doubt the existence of the discretion and all agree that it has to be exercised at some point in the process. There is a deal of disagreement, however, about the width of the discretion and whether it derives from the language in s 66G, the exceptional nature of s 66L(1) itself, or par 66K(1)(e).
Warnick J identified a number of relevant discretionary factors in Cosgrove. [90] They include (a) the filial relationship between the applicant child and the liable parties, (b) whether the application amounts to a resurrection of a dependency that had previously been broken, (c) the period of 'independence', (d) any delay in making the application, and (e) other assistance or benefits the child is entitled to or has received in the past.
[90] at 83,390.
Carter J in B & B and McGrath R in FM also single out the date of disability as a relevant factor. Thus, the fate of an application brought by an adult who became disabled at forty may well be different from that of a child incapacitated at twenty-five.
Likewise, the potential operative period of a child maintenance order was described as having discretionary significance by Carter J in B & B and Barry J in W & W.
Whether or not these sorts of considerations can have a disentitling or disqualifying effect is unclear.
Warnick J in Cosgrove and Barry J in W & W suggest they can. There may, indeed, be a case where, for example, the date of the disability or poor filial relations may justify a court to refrain from making an order of adult child maintenance even though it is satisfied that the threshold requirements in s 66L have been met. However, this is not one of them.
The belated onset of the applicant’s disability does not disentitle her, in my view, because of its comparatively close proximity to the date of her majority. Similarly, the period of her independence was too short-lived to defeat her claim. Delay is not a significant feature of the case either.
Hence, the main discretionary matters to be taken into account are the filial relationship and the indeterminate duration of the periodic order sought which, if granted, could continue ad infinitum until one of the events in ss 66U or 66VA(1) occurs.
The strained nature of the relationship between the applicant and the first respondent is obviously relevant to both quantum and contribution issues.
But Watson SJ suggested in Mercer and Mercer[91] that the conduct or attitude of a claimant child towards the respondent can have a potentially disqualifying effect. His Honour said:
“. . . 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.” [92]
[91] (1976) FLC 90-033.
[92] at 75,131.
However, in Cosgrove [93], Warnick J said:
“… the attitude of the child to the person from whom maintenance is sought was considered relevant in Mercer and Mercer (1976) FLC 90-033 and in Oliver and Oliver (1977) FLC 90-227 at 76,203. Asche SJ did not disagree that filial attitude could be relevant. However, in Gamble and Gamble (1978) FLC 90-452 Fogarty J doubted the appropriateness of the considerations raised by Watson SJ in Mercer’s case and in H v H (1981) FLC 91-083 Smithers J though acknowledging that attitude of an adult-child may be relevant thought it would not normally be appropriate to distinguish between children according to their attitudes to their parents.
For my own part, I respectfully agree with the observations of Asche SJ in Oliver at 76,203:
‘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 …’
And while I abhor any practice which might develop in which an examination of the relationship between the child and respondent became standard practice but I do not consider it can be said that in no circumstances could the attitude of the child to the respondent constitute a special circumstance which might affect the justice of the case in terms of s 66E(1)(d) or otherwise be relevant to the exercise of the ultimate discretion.
[93] at 83,391.
Asche SJ’s statement in Oliver was made in the context of an application by a 21 year old daughter for financial assistance to allow her to study from a father who she had only a “polite” relationship with and who refused to make any payments unless ordered to do so.
In dismissing the application His Honour said [94] :
“… Bearing in mind the policy of the Act which seems to me to be clear … that an order for maintenance of a child over the age of 18 shall be made only in special circumstances or to put it another way a child over the age of 18 is normally expected to find his (or her) own resources to continue education unless it can be shown that those resources just cannot be found and in that case … financial assistance (may be sought from) … one or either or both, for that matter, of his parents. There is only one other matter which has been raised before me and that is the question of conduct. At the most it could only be said here that there is a relationship of politeness rather than of affection between the daughter and the father, although I hasten to say that there may be other interpretations of the evidence but no interpretation convinces me that there is a relationship of hostility and certainly there is nothing to suggest that the daughter has suggested that she regards as having forfeited all parental rights as was the case in Mercer … I certainly do not disagree with his Honour Mr. Justice Watson in that case that there may be circumstances where the conduct of a child might make it incorrect for the court to make an order for maintenance but that conduct would have to go much further than any conduct shown here. I do not think 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 parent as against the child who remained frank and honest as to his relationship. As I said to counsel in argument it would seem that this reasoning would lead to the conclusion that Goneril and Reagan would receive maintenance but Cordelia would not. It does not seem to me that the section is directed at that sort of examination of conduct.” [95]
[94] (1977) FLC 90-227 at 76,203.
[95]See too Cosgrove and Cosgrove (1996) FLC 92-700 and Dougherty and Dougherty (1987) FLC 91-823.
Interestingly, the quality of the relationship between the applicant and the deceased has always been an element in testator family provision cases under State laws. The family provision and child maintenance jurisdictions are both statute based. The principles that apply to deciding need based claims against a deceased estate are not dissimilar to those applicable to a living estate. The general rule is that a testator has a duty to provide for his children and other entitled persons, provided that they are not morally or otherwise undeserving.
In Nenke v Nunn[96], for example, a daughter who was severely physically handicapped obtained substantial provision from the court on a testator's family maintenance claim.
[96] [1967] WAR 79.
Adopting the approach favoured by Asche SJ in Oliver and Warnick J in Cosgrove, the relationship evidence in this case may limit the level of any financial support the first respondent is liable to provide but does not reduce it to nil.
The second of the factors mentioned in paragraph 133 above – the duration of any order – is a much more complicated and significant issue to be dealt with later.
The assessment process
The jurisdiction to make orders for child maintenance is actually conferred by s 66G which provides that in proceedings for a child maintenance order, the court may, subject to the other provisions of Div 7, make such child maintenance order as it thinks proper.
A Div 7 child maintenance order continues until such time as one of the terminating circumstances mentioned in s 66VA(1) occurs, including unsurprisingly, substantial improvement or full recovery.
Importantly, however, the duty to maintain children exists under s 66B regardless of court orders. All an order does is quantify and enforce the duty against a defaulting parent.
The court’s power to make a child maintenance order is expressly subject to the other provisions of Div 7. This includes s 66L itself. The phrase “subject to” makes it clear that s 66L qualifies the other sections to the extent of any contrariety and prevails over more general provisions in the event of internal conflict.
Similarly, the primary duty of parents to maintain their children in s 66C(1) is subject to the other more specific provisions of Div. 7, especially those in subdivision D.
The objects of the child maintenance provisions are set out in s 66B. Essentially, the aim is to ensure that children receive a proper level of financial support from their parents and that their proper needs are met out of a reasonable and adequate share in their parents' economic resources and that the burden of the liability for child support is equitably but not necessarily equally distributed.
The approach to be taken is set out in 66H. In deciding whether and, if so, what child maintenance order to make, judges exercising this wide but not limitless discretionary jurisdiction are confined to a consideration of (a) the financial support necessary for the proper maintenance of the child and (b) the financial contribution that should be made by the party or parties.
Sections 66J and s 66K of the Act explain the extent of the maintenance duty and how the task is carried out.
The specific orders that can be made under s 66G are listed in s 66P(1). They include lump sum, property transfer or settlement, and periodic maintenance.
The capacity of a liable parent to pay by way of periodic maintenance must be considered first[97] because it is generally preferred to the other options and it can be more readily adjusted as needs and circumstances of the parties alter over time. It also reflects the main object of child maintenance which is more income than capital focused.
The first step: what level of financial support is necessary for the (reasonable) maintenance of the applicant in the future?
[97] s 66K(5).
The applicant has to show that the maintenance claimed is “necessary” having regard to the objects of Div 7 in s 66B, the proper needs and available means of the applicant, and the criteria in s 66J(2) and s 66J(1)(c) and (3)(a).
Section 66J requires three exclusive factors to be taken into account in ascertaining the financial cost of maintaining the child at a reasonable standard and to what extent, if any, the child in question can meet these costs from his or her own resources without seeking a contribution from anyone else. They are (a) the objects stated in s 66B, (b) the proper needs of the child, ascertained according to s 66J(2) - which identifies the age and any special needs of the child as two relevant matters - and (c) the child’s income, earning capacity (including from dormant non liquid but potentially realizable assets), property and financial resources.
Other material circumstances such as likely recurring future costs can also influence the outcome of the s 66H exercise by virtue of sub sec. 66J(4).
There is no real disagreement that the provision of some maintenance is 'necessary' because of the applicant’s disability. She is, as already mentioned, totally unemployable and has virtually no ability to earn an income otherwise. She has proven special needs in a number of areas which give rise to recurring future costs she cannot meet due to her disability.
The debate is about how much is reasonable in all the circumstances.
[After analysing the applicant’s proven needs and available means, the lump sum claim was disallowed in total and necessary periodic support was fixed at $1,500 per week]
Step 2: What should the respective financial contributions of each of the respondents be?
The contribution of the respondents to the necessary financial support of the applicant is calculated solely by reference to the matters in s 66K. They are the objects in s 66B (as in s 66J) plus the principles in s 66C and the financial circumstances of each liable party including any (financial) commitments necessary for self-support. [98]
[98] s 66K(1)(c).
The entitlement of the child or a member of his or her household to any income-tested pension, allowance or benefit must be disregarded in determining the quantum of a child maintenance order. So too, unless par 66K(1)(e) applies, must the financial circumstances of a third party. This is because the primary responsibility of a liable parent to maintain a child is normally unaffected by the wealth or generosity of other potential benefactors or taxpayer federal welfare programs. [99]
[99] s 66K(4)(b).
The two remaining matters relate to the direct and indirect costs incurred by a household member in caring for the subject child, including financial losses or disadvantages incurred in doing so[100] and, finally, any special (or unique) circumstances which, if ignored, could cause economic injustice or undue financial hardship to any person under par 66K(1)(e).
[100] s 66K(1)(d).
The applicant and the second respondent submit that the special circumstances referred to in s 66K(1)(e) must, like those in s 75(2)(o), have an economic aspect or significance. I disagree. There may be many more general considerations such as those mentioned in paragraphs 127-129 above which, if ignored, would cause injustice or undue hardship in an adult child maintenance claim.
[The financial circumstances of each respondent were then examined but there is no need to reveal the details for present purposes]
The proven necessary financial support of the applicant is $1,500 a week. If the applicant's offer to pay $1,000 a week of this was accepted, there would be a shortfall of $500 left for the first respondent to contribute.
However, I think fairness requires some adjustment in recognition of the past sacrifices made by the second respondent in caring and financially supporting the applicant.[101] The second respondent should, therefore, contribute $975 a week compared to the first respondent's $525.
[101]In Cosgrove at 83,391, Warnick J expressed the view that the use of the past tense in s 66H(1) was a device to address the requirement that the court be satisfied of the conditions for making an order at the time of making it and not some future date. His Honour held that this ought not prevent the making of retrospective orders in appropriate cases, especially where the waiting periods of court lists would otherwise be productive of financial hardship.
The sum of $1,200 or even $1,000 a month may be sufficient to discharge a moral duty to provide for a disabled daughter, but it is inadequate, in my judgment, to satisfy a legal liability arising under the Act.
I am mindful that this result will be more demanding on the second than the first respondent. The second respondent will be fully extended while the first respondent will not. Her proportionate contribution would be much greater than his. This is regrettable but it reflects the history of financial relations within the family and it is still less than what she is willing and able to pay, while the size of the first respondent's contribution, on the other hand, is more than he currently pays and nearly double what he concedes.
My obligation is to share the burden equitably not equally. I know the first respondent can pay much more but capacity is not the only consideration. The second respondent will be stretched to the limit in meeting this order but that is the way she has structured her finances in the past five years anyway.
Equity is not equivalence. It is characterised by what is fair and reasonable in all the circumstances.
I am satisfied that notwithstanding the disparity between their respective contributions, the assessed amounts nonetheless represent a reasonable and adequate share of the respondents' economic resources and a fair and equitable apportionment of their liability to support their daughter.
How long should the periodic order be made to last?
This vexed question was touched on but not fully canvassed earlier.
It does seem extraordinary to think that even the most beneficial legislation regulating family affairs was intended to operate so as to make parents financially liable for their children over the whole of their respective lives.
As Barry J observed in W & W:
“It cannot be the case that parents become the insurers of their children so that at any time an adult child sustains a disability, either through illness or trauma, a legal liability arises. I fully accept that in most instances in our society a moral duty is there and parents will act appropriately. However this is an entirely different situation from imposing a legal duty in such situations.” [102]
[102] [2002] FamCA 1143 at [37].
The applicant may survive until sixty, that is, another 32 years and longer than the first respondent's life expectancy of 20.5 years. Accordingly, the potential exists for him to pay an amount of $2,537,600 on the daughter's potential life or $1,625,650 on his own before the order automatically terminates after the death of the payer or payee. [103]
[103] s 66U(2).
It would mean, in this case, that the first respondent as an 80 year old pensioner could still be supporting a 50 year old disabled daughter in 20 years' time.
While it is true that the law favours finality in orders there is no mandatory rule.
There are some cases, and I think this is one of them, where finality simply cannot be achieved. A reasonable amount for long term support of the applicant is difficult to accurately calculate at this distance. Her future health costs and other proper needs are unpredictable. So, too, is the capacity of the Trust to maintain present earnings beyond 2011.
There are a number of ways of dealing with this conundrum. The periodic sum payable could be either capitalised or discounted to take account of the length of time that the order may be in force or, alternatively, the duration of the order itself could be fixed under s 66P(1)(g). All of these options have positives and negatives, but a finite order has more overall attraction.
I am loathe to take this option because of the monetary and emotional costs these proceedings have already extracted from the parties. However, finality is not an end in itself or a goal to be strived for at any cost. The ultimate touchstone is fairness. It would be wrong for me to make an ongoing order too far into the future and further than I can presently see. An order specified to operate for a limited time will ensure the fairest context for reviewing the impact of changed financial circumstances in the future and guard against such an eventuality.
The period I have in mind is 5 years. If the circumstances change within that period the situation can then be reviewed in light of the financial circumstances existing at the time and, if necessary, discharged, varied or modified under s 66S(2) or (3).
Conclusion
Most married parents in an intact family situation would voluntarily care for and support a permanently disabled child. The same will not always be true in familial relationships damaged or destroyed by separation or divorce. However, neither marital status nor the attitude of the parent to the child or the responsibilities of parenthood affects the level of need and should not make any difference to the provision of financial support either.
But my own views on filial morality are entirely irrelevant and must be put aside. It will be a sorry day, if it ever comes, when judges thought themselves entitled or justified in interfering more than absolutely necessary in the personal relations or private affairs of litigants. That said, I cannot help noticing that the total estimated legal costs and disbursements provided in accordance with the Rules by the parties shows that the proceedings have cost each of the three parties in excess of $100,000. Half of that total amount would have been enough for the claimed modifications to the applicant's house. Invested at 5 per cent, $300,000 would return $288 (before tax) a week, which is 30% of the mother’s and 55% of the father’s assessed liability.
Orders will issue in the following terms :
(1)That the first respondent pay periodic maintenance to the applicant in the sum of $525 per week.
(2)That the second respondent pay periodic maintenance to the applicant in the sum of $975 per week.
(3)The first payment under paragraphs (1) and (2) be made within 30 days of these Orders and then monthly thereafter until 10 April 2011.
(4)Commencing 1 July 2007 the maintenance payable by the respondents hereunder be varied on 1 July each year in accordance with the Consumer Price Index for Sydney.
(5)Liberty be granted to the parties to apply on 7 days' notice in respect of the implementation of these Orders.
(6)The matter be removed from the list of cases awaiting finalisation.
2See Rule 6.01Family Law Rules 2004 and s 66K(1) of the Act.
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