Rustam & Faraz (No 2)
[2023] FedCFamC2F 389
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rustam & Faraz (No 2) [2023] FedCFamC2F 389
File number(s): ADC 1923 of 2010 Judgment of: JUDGE JENKINS Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – Adult child maintenance – whether provision of maintenance necessary to enable children to complete their education – whether provision of maintenance necessary because of a mental or physical disability of the child – capacity of children to provide self-support – what is proper – adult children did not file affidavits and were not called as witnesses Legislation: Family Law Act1975 (Cth) ss 66G, 66H, 66K, 66J, 66L Cases cited: Cosgrove & Cosgrove [1995] FamCA 155
Gamble & Gamble [1978] FamCA 32
In the Marriage of H (1981) 7 Fam LR 451
Osborne v Osborne [1972] 1 NSWLR 469
Tuck & Tuck (1981) FLC 92-021
Division: Division 2 Family Law Number of paragraphs: 69 Date of last submission/s: 30 November 2022 Date of hearing: 26-27 September 2022 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Howe Jenkin Counsel for the Respondent: Ms Tinning Solicitor for the Respondent: David Burrell & Co ORDERS
ADC 1923 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RUSTAM
Applicant
AND: MR FARAZ
Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
5 APRIL 2023
THE COURT ORDERS THAT:
1.Order 1 of the interim orders of 22 November 2021 be discharged.
2.The father pay to the mother, by way of adult child maintenance for the child X born in 2003 (“Ms B”), the sum of $329.00 per week, with such payments to be made each Friday, commencing the first Friday following the making of these Orders.
3.The payment of adult child maintenance in order 2 herein is to conclude upon Ms B completing her secondary school education.
4.This order shall be registered with the Child Support Agency for collection.
5.All applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Rustam & Faraz (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
This is an application for “adult child” maintenance for the two adult children, Mr C born in 2000 aged 22 and Ms B born in 2003 aged 19 (“the adult children”).
The applicant in this matter is the adult children’s mother, Ms Rustam (“the mother”).
The respondent in this matter is the adult children’s father, Mr Faraz (“the father”).
The issues in this matter are:
(a)Whether Mr C is capable of financially supporting himself whilst at university;
(b)Whether Ms B can financially support herself for the remainder of her secondary education;
(c)Whether Ms B is capable of admission to any of the three proposed courses of tertiary education;
(d)Whether Ms B intends to enrol in any of the proposed courses of tertiary education;
(e)Whether, if Ms B is accepted into one or all of the proposed courses, she is likely to complete the course or courses;
(f)Whether Ms B otherwise requires ongoing financial support because of a mental or physical disability; and
(g)If any of the previous questions are found to be true, whether the father should contribute to either Mr C’s or Ms B’s financial support and if so, to what degree.
BACKGROUND
The mother, the adult children and their brother X aged 17 live in Country D, about an hour from City E.
The father lives in City F, South Australia.
The parties separated in 2009. At that time the family were living in South Australia. The mother returned to Country D with the children shortly after separation in 2010.
On 9 November 2015 the parties entered into a Binding Child Support Agreement (“the BCSA”) for the three children.
The BCSA provided for the father to pay the mother $20,000 per annum for each child (indexed for CPI plus 5 %) until each child turned 18.
The father ceased paying for Mr C’s expenses on his 18th birthday, in 2018.
Ms B turned 18 in 2021 however on 22 November 2021 this Court made orders for the father to pay $470 per week by way of interim adult child maintenance on her behalf.
The father’s obligations to pay child support for X will continue until he turns 18 in 2024.
Mr C currently attends the University in City G, which is several hours from the mother’s home. At the time of the Trial he was close to the end of his first year of a degree course. If he finishes the course within three years he will complete it in 2024. The mother says Mr C will then need to complete post graduate studies to become a health professional and that will take a further two to three years. Mr C has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).
Ms B is currently completing her secondary education. Ms B has been diagnosed with learning difficulties and has an IQ in the borderline range. She has also been diagnosed with performance anxiety and ADHD. Therefore, although she is 19 years old, she is in the equivalent of year 11. It is anticipated she will complete her final secondary school exam in mid 2023.
The mother’s application is premised on Ms B pursuing three courses of tertiary study, contemporaneously, after she completes her secondary education. The first being in allied health, the second to become a sports educator and the third, a music educator. The application is also based on Ms B having a disability.
The mother is currently receiving $29,412 per annum from the father for X pursuant to the BCSA. The mother’s application seeks the same amount for each of the adult children as well as 50 per cent of Mr C’s tertiary education fees. She proposes that these payments continue until each of the adult children commences full time employment or they cease to be enrolled in their education for a period of six months, or in the case of Ms B if she marries or forms a de facto relationship. Otherwise the payments would terminate in 2027 for Mr C and 2030 for Ms B.
THE LEGAL PRINCIPLES APPLICABLE
As the adult children are over 18 years of age, the question of what level of financial support is to be provided to them, by their parents, is no longer covered by the provisions of the child support legislation. Rather the provisions of the Family Law Act1975 (Cth) (“the Act”) apply.
The provisions relating to the assessment of adult child maintenance are fundamentally different to those relating to child support. Essentially, the legislation governing child support places a legal obligation on the parents to provide financial support for their children, according to the level of the parent’s respective incomes. Whereas with respect to adult child maintenance there is an expectation that adult children will support themselves where possible.
The first task for the Court to determine in such matters, is whether the provision of adult child maintenance is necessary to enable the adult child to complete their education.
Section 66L(1) of the Act deals with adult child maintenance. It reads as follows:
(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.
Section 66G of the Act empowers the Court to make any child maintenance order it considers proper.
Section 66H of the Act requires the Court to firstly determine the level of financial support necessary and then to assess the capacity of each of the parents to contribute to that support.
Section 66J of the Act sets out the factors to be considered when assessing the proper needs of the child, including their age, their capacity to work whilst studying, the manner in which the child is being educated (and which the parents expect the child to be educated) and any special needs.
Section 66K of the Act sets out the factors when assessing each of the parent’s capacity to contribute. This assessment involves looking at the income, earning capacity, property and financial resources of the parents concerned and their expenses.
In the Marriage of H (1981) 7 Fam LR 451 the Court held that adult child maintenance should only be ordered in limited circumstances and that ordinarily an adult child should support themselves.
In Gamble & Gamble [1978] FamCA 32 at par 34 the Court said that the provision of adult child maintenance must be necessary not just desirable or socially proper.
In Tuck & Tuck (1981) FLC 92-021 at par 52 the Full Court defined “necessary” as follows:
…‘Necessary’ in this context means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors.
In Cosgrove & Cosgrove [1995] FamCA 155 the Court considered that the following matters were likely to bear upon the exercise of the discretion to make a maintenance order in respect to a child over 18 years of age:
(i)whether the “nexus” of dependence between the child and parents had ceased and the application amounts to a “resurrection” of that dependence;
(ii) the period between initial cessation of dependence (if any) and the application;
(iii)whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself;
(iv) other assistance, benefits or education which the child has received;
(v) the ability of the child to complete the course in question;
(vi) the likelihood of the child completing the course in question;
(vii)the financial capacity of the child to maintain himself/herself to the completion of the “education”;
(viii)the financial circumstances of those persons responsible for support of the child (generally the parents);
(ix)the filial relationship between the child and the person from whom maintenance is sought.
MR C
The mother’s application with respect to Mr C, is based on s 66L(1)(a) of the Act.
It is not in dispute that Mr C is undergoing a course of study for the purposes of that section.
Mr C does not currently work in paid employment, either part-time during the university semester or during university holidays. The mother’s evidence is that Mr C is not capable of and/or ought not be expected to work whilst studying. This is primarily because Mr C’s psychiatrist does not recommend employment whilst he is studying and because by the end of his day his ADHD medication has worn off. The mother has annexed Mr C’s University Disability Support Plan which shows the university have allowed him to have 25% extra time to complete tests as well as extensions on assignments.
Nonetheless, it was apparent on the mother’s evidence that in addition to attending university, Mr C plays sports three times per week, sports twice per week and has music lessons and a one hour language lesson each week. Mr C also goes to Church between 3:00pm and 7:00pm on Sundays and socialises with friends. The mother says these activities should be distinguished from studying, as they assist rather than hinder Mr C’s mental health.
The mother relies upon a report from Mr C’s psychiatrist however the psychiatrist last saw Mr C in April 2020 and at the time of that report Mr C was to study his subjects.
I am not satisfied on the evidence that based on Mr C’s ADHD he is incapable of any work. At its highest, the psychiatrist does not “encourage” work whilst Mr C is studying but that recommendation was not based on Mr C’s current circumstances.
Furthermore, there is no evidence before the Court about the exact nature of Mr C’s current study requirements. Indeed the mother herself was not aware of the hours Mr C was required to attend university and she did not have a copy of his timetable. Her evidence was that Mr C had classes every day and that he had breaks between classes, but was unable to be more specific.
I note that Mr C was referred back to H Hospital for continuation of treatment but no report from that hospital was provided.
The mother’s case is that in any event there are limited opportunities for employment in the vicinity of the university however she provided no evidence to corroborate this such as the population of the local town or the approximate number and types of businesses.
There is no evidence that either the mother or Mr C have seriously considered options for employment in the town near the university, on the University Campus (such as tutoring) or near the mother’s home in the university holidays.
The mother bears the onus of showing that adult child support is necessary for Mr C. I am not satisfied on her evidence that such support is necessary for the following reasons:
(a)The precise number of hours Mr C must spend at university are unknown;
(b)The length of breaks during his university days are unknown;
(c)There is no current report from Mr C’s treating psychiatrist which addresses the impact of his ADHD on his ability to work in light of his present study load;
(d)Options for local employment have not been particularised;
(e)There is no evidence that options for employment at the University, such as tutoring, have been explored;
(f)There is no evidence that options for employment during the holidays near the mother’s home have been explored;
(g)There is no evidence Mr C could not work during the day or in the holidays, if his capacity for work in the evenings is affected by his ADHD;
(h)Mr C could reduce the number of his extra-curricular activities to enable more time and/or energy for part-time employment; and
(i)Mr C may be able to reduce his hours at university, to a part-time load, so as to contribute to his own expenses.
Consequently, the mother’s application for adult child maintenance with respect to Mr C will be dismissed.
MS B
Although it was not stated in the mother’s Trial affidavit or indeed sought at the outset of the Trial or made clear during the Trial, in final submissions the mother sought adult child maintenance for Ms B under both s 66L(1)(a) and s 66L(1)(b) of the Act.
Support whilst completing secondary education
The father accepts that Ms B has intellectual and learning difficulties and that she has also been diagnosed with ADHD. The father does not appear to assert that Ms B is capable of meeting her own expenses whilst she completes her secondary education.
Support whilst completing tertiary education
The mother proposes that after Ms B completes her secondary education that she simultaneously pursue three avenues of tertiary education, being allied health, sports education and as a music educator. The mother says that thereafter Ms B could work in allied health and education.
The mother proposes that Ms B complete the following courses:
(a)Course 1;
(b)Course 2; and
(c)Course 3.
Nonetheless, pursuant to Osborne v Osborne [1972] 1 NSWLR 469 the Court has held that it should be established not only which course the child is going to undertake but also whether they are eligible for admission.
On the evidence before the Court I am not satisfied that Ms B is eligible for admission to any of these courses nor am I satisfied that she is likely to be able to complete them.
It is not disputed that Ms B has below average perceptual reasoning and memory issues, has below average processing speed, is of borderline intelligence and has performance anxiety. She has taken a number of extra years to complete her secondary education and has required additional supports. In addition, Grade 8 in music is a pre-requisite for music education and Ms B is struggling to complete Grade 7. With respect to the Course 3, Ms B is 19 and has not attended sports since she was 12.
Moreover, there is no direct evidence from Ms B that she has any intention of undergoing any of the three courses proposed by the mother. She has not filed an affidavit and did not give evidence.
Again the mother has the onus of showing that the payment of adult child maintenance is necessary for Ms B’s tertiary education. I find that she has not met this onus.
Maintenance based on a mental or physical disability
There is no evidence that Ms B is incapable of obtaining any employment beyond her secondary education. Indeed the mother’s case is that she is capable of such employment (once she has completed her proposed courses).
The father asserts that Ms B could work in retail or like employment. There is no evidence of that but the mother bears the onus of satisfying the Court that Ms B will not be able to meet her own expenses once she completes her secondary education, and she has not done so.
Quantum of expenses for remainder of secondary education
The mother relies upon a set of detailed tables annexed to her Trial affidavit as evidence of Ms B’s expenses. The mother also relies on her Financial Statement. The mother’s evidence was that unless included separately in the tables, for example under dental, the items in part N of the Financial Statement were included under living expenses in the table.
Turning firstly to the tables, the father does not take issue with the figures attributed to Ms B’s school tuition nor the amounts given for dental or her optometrist. He does however challenge the inclusion of the medical costs. The father says that many of these medical costs are subsidised by the Country D government. This evidence was not challenged and as such Ms B’s medical costs will be excluded from her expenses.
In addition, the father does not accept the following expenses:
(a)School books – he says they have already been purchased;
(b)English tuition – he says Ms B has completed her English exams;
(c)New headphones and computer – he says there is no need to replace them.
The father’s evidence was not challenged in this regard. Accordingly, these expenses will also be excluded from the assessment of Ms B’s necessary expenses.
For reasons that are not clear, the father does not appear to concede the cost for Ms B’s health insurance. I find however that given Ms B’s disabilities, health insurance is a necessary expense.
Furthermore, the father does not accept that it is necessary for Ms B to continue or commence the following activities whilst completing her secondary education:
a) Music tuition, exams and books;
b) music tuition and exams;
c) sports lessons;
d) Driving lessons;
e) Sports lessons; or
f) Sports lessons.
I find there is no evidence that any of these activities are necessary for Ms B to complete her secondary education or because of a mental or physical disability. The costs of all of these expenses shall be excluded from her necessary expenses.
In relation to the figures attributed to living expenses for Ms B in part N of the mother’s Financial Statement, the father conceded the following:
a)Food $129
b)Household supplies $5
c)Utilities and telephone $5
d)Fares $7
e)Clothing/shoes $15
f)Hairdressing/toiletries $13
g)Household utilities $5
The mother was cross-examined as to her Financial Statement and having heard that evidence I accept that she is better placed to calculate the expenses than the father and appears to have used her best endeavours to do so accurately. Based on the figures in part N of the mother’s Financial Statement these are as follows:
a)Electricity $18
b)Water and sewage $2
c)Telephone $9
d)Fares/car parking/school transport $30
e)Clothing and shoes $24
f)Entertainment and hobbies $7
g)Chemist/pharmaceutical $13
h)Hairdressing and toiletries $13
Although I accept that Mr C would add to the cost of electricity and water when he is home there is no evidence on which to calculate how many days per year he resides there.
I find the remainder of the items in the mother’s part N would be expenses incurred by the mother whether Ms B resided in the home or not and are not necessary for her education or because of her disabilities.
Consequently I find the following to be Ms B’s necessary expenses (on a weekly basis) whilst she completes her secondary education:
a)School fees $32
b)Science $10
c)Optometrist $7
d)Dental $18
e)Medical insurance $12
Living expenses
f)Food $129
g)Household supplies $5
h)Electricity $18
i)Water and sewage $2
j)Telephone $9
k)Fares $30
l)Clothing and shoes $24
m)Entertainment and hobbies $7
n)Chemist/pharmaceutical $13
o)Hairdressing and toiletries $13
Total $329
I also find that given Ms B’s special needs, in particular the additional time she has taken to complete her secondary education that she would not have the capacity to obtain paid employment whilst she is at school to contribute to these costs.
The parties’ financial positions
The mother is an educator. The mother advised at Trial that she must retire in 2023 when she turns 60, but expects to be kept on, on a contract basis, although there is no guarantee. The mother says this would be on a reduced salary.
The father is a health professional in a practice he part-owns in City F. He attests to health issues and to hoping to retire upon the completion of his obligations under the BCSA. He says he has already resigned from the Employer H where he worked part-time and has reduced his work at the clinic to three days per week.
Nonetheless, I find that the father has capacity to pay for Ms B’s costs for the relatively short period he will be required to do so. Although his expenses in his Financial Statement exceed his income, historically he has managed to meet his obligations under the BCSA and the costs I have assessed are significantly lower than those payments.
I have considered the mother’s ability to contribute to the expenses however the father’s income far exceeds that of the mother and there is some uncertainty around her ongoing employment. Accordingly, I propose to order that the father pay to the mother on behalf of Ms B, $329 per week by way of adult child maintenance until she completes her secondary education.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 5 April 2023
0
0
0