Re AM (Adult Child Maintenance)

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[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 J

Catchwords: 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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Details
Case
[2006] FamCA 351
Decision Date

CaseChat Overview and Summary

This case concerned an application for adult child maintenance before Carmody J. The dispute arose from a Registrar's ruling that the relevant legislative provision for adult child maintenance did not extend to disabilities arising after a child reached the age of majority.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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