S and F
[2001] FMCAfam 148
•29 August 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
S & F [2001] FMCAfam 148
MAINTENANCE FOR CHILD OVER 18 – Section 66L – capacity of child to work.
| Applicant: | L J S |
| Respondent: | G W F |
| File No: | ZE 1246 of 2001 |
| Delivered on: | 29 August 2001 |
| Delivered at: | Dandenong |
| Hearing Date: | 29 August 2001 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person Ms L S |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person Mr G F |
ORDERS
That pursuant to section 66L of the Family Law Act 1975 the Husband pay to the Wife maintenance for the child L J F born on the 22nd day of June 1982 in the sum of $146 per week, the first payment to fall due on the 1st day of July 2001.
That the maintenance for the said child is to be paid during the continuance of her full-time course at La Trobe University and to conclude upon the completion of her current course or the cessation of her full time studies, whichever is the earlier.
That the Application and Response be dismissed.
IT IS DIRECTED
That the matter be removed from the pending cases list.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG
ZE 1246 of 2001
L J S
Applicant
And
G W F
Respondent
REASONS FOR JUDGMENT (Ex Tempore)
Introduction
This matter concerns an application pursuant to Section 66L of the Family Law Act 1975, for maintenance for the child of the parties, L J F (“L”)who was born on 22 June 1982 and who is over the age of 18. The application was filed by the wife on 25 July 2001 and seeks an order that the respondent husband pay to her maintenance for L, in the sum of $146 from 1 July 2001 until she completes her tertiary studies. The husband has filed a response which is dated 24 August 2001. In the response he acknowledges an obligation to pay maintenance for L and seeks that there be an order for $50 per week until she completes her tertiary studies.
Background
By way of background, the parties were married on 24 February 1979, they separated on 13 June 1996, and a decree absolute was granted on 11 September 1997. The parties have two children, L, who is 19, and J A F, born 24 May 1985, who is 16. J lives with his mother and the husband is paying child support for J pursuant to an assessment under the provisions of the Child Support Assessment Act 1989. The issue in this matter is what is the proper amount of maintenance to be paid for L on a weekly basis. As I have indicated, the application of the wife seeks $146 per week, which is in fact the cost of L's accommodation and food for her university-related living expenses. The husband seeks to pay $50 a week.
The husband relies upon three matters. The first is that he has made a commitment, earlier this year, to pay the first semester's fees for L, in the sum of $2911; secondly, that she is in a position to do some work on a part-time basis and to contribute to her own support; and, thirdly, that he is not able to afford, at the present time at least, anything more than he is currently offering.
L is a tertiary student doing the first year of her nursing and midwifery course at Latrobe University at the B campus. She is accommodated at S Hall and it is common ground that that accommodation costs $146 per week.
The law
The law in relation to child maintenance is set out in subdivision (d) of division 7 of part VII of the Family Law Act. Section 66H sets out the approach to be taken in proceedings for child maintenance. This section provides that the court must:
(a)consider the financial support necessary for the maintenance of the child; and
(b)determine the financial contribution, or respective contributions, towards the support which should be made by the parties.
In considering the financial support necessary for the maintenance of the child, the court must apply section 66J. That section provides the court must take into account: firstly, the matters mentioned in section 66B; secondly, the proper needs of the child; and, thirdly, the income earning capacity, property and financial resources of the child. Section 66B sets out the objects of the division, which is to ensure that:
“ ... children receive a proper level of financial support from their parents; that children have their proper needs met from reasonable and adequate shares in the income earning capacity, property and financial resources of both their parents; and that the parents share equitably in the support of their children. In considering the proper needs of the child the court must have regard to the age of the child, the manner in which the child has been, or the parents expect the child to be educated or trained, and any special needs of the child.
Taking into account the income earning capacity, property and financial resources of the child, the court must disregard any entitlement of the child, or any other person, to any income-tested pension, allowance or benefit.”
In considering the financial contribution that should be made by the parties, the court must have regard to the matters in section 66K. That section sets out that the court must consider not only the objects of the Act to which I have referred, but the principles in section 66C which are that, firstly, the parents of the child have a duty to maintain the child; secondly, that duty is not of lower priority than the duty of the parent to maintain any other child; and that it has priority over all other commitments of the parent, other than commitments necessary for that parent to support themselves.
In considering the financial contribution to be made by the parties, the court must have regard to the income-earning capacity, property and financial resources of the parties and their commitments to support themselves, together with any special circumstances which, if not taken into account, would result in injustice or undue hardship. Section 66L, which relates to maintenance for children over 18, provides that a court must not make a maintenance order in relation to a child who is over 18 unless the court is satisfied that the provision of the maintenance is necessary to enable the child to complete his or her education because of mental or physical disability. A court must not make a maintenance order which extends beyond the child's 18th birthday unless it is satisfied that the provision of maintenance is necessary for the purposes to which I have referred.
Evidence
In this case it is conceded that maintenance is necessary for L to enable her to complete her tertiary education and the issue was simply what sum the husband should be paying. The first matter therefore having regard to the legislation that I must consider is what are the reasonable needs of L on a weekly basis. Both parties relied upon their application and response, respectively, and each of the parties has filed other affidavits; both parties were cross-examined. The wife has set out in her application what she says are the weekly needs of L and she was cross-examined about those needs.
Part of the husband's case, as I have indicated, was that L has a capacity to work part-time to support herself. She is at the moment doing some part-time work which involves about 12 hours a fortnight or, on average, six hours a week. However the evidence is that she has medical and dental problems which impact upon her capacity to work, as well as the need for her to attend assiduously to her studies. In particular, her medical and orthodontic problems have recently required significant surgery on her jaw and although it is now hoped that the problem is resolved, her prognosis remains uncertain and further requirement for treatment also remains uncertain.
The wife also gave evidence that L has some gynaecological problems, in particular she has heavy periods, and this also impacts upon her capacity to work during term time. The wife's evidence was that she intends to look for more work over the long summer vacation to provide for some of her needs next year. Having regard to the course that she is doing, and to the evidence as to her medical and orthodontal problems, I am satisfied that L is at present exercising her earning capacity to its reasonable level.
I note that she will be likely to work during the long summer vacation and to make a contribution to her needs during that period. The way in which I propose to take into account her earning capacity, such as it is, is when considering her reasonable needs to omit from those needs entertainment and pocket money which I find she has the capacity to provide for herself. As I have indicated, the legislation requires that I ignore any income derived from an income-tested pension, allowance or benefit.
Accordingly, having regard to the expenses which are set out as being reasonable expenses for L, I have omitted from that list the following expenses which I do not consider to be reasonable expenses for the reasons I have expressed. I have omitted a figure of $20 for household supplies. I have omitted $1 for council rates on the basis that the property is owned by the wife and payment of the rates would be a necessary expense for her in any event. I have omitted $20 for pocket money and $20 for entertainment for the reasons expressed. And accordingly I find that her weekly expenses, on the evidence, having regard to the cross-examination and the evidence given, to be $362 per week.
The next matter I turn to is the capacity of the parties to contribute to L's support. As far as the income-earning capacity and commitments of the wife are concerned, the evidence before me is that the wife is working about 26 hours per week and earns $350, average, per week. She is receiving $47 child support for J. I am satisfied, on the evidence, that having regard to her commitments to the children, and particularly to J, her health and work available to her, that she is exercising her earning capacity to its reasonable extent. I note, in particular, her evidence that she hopes to be able to obtain some extra income during the canning season.
Her expenses for support of herself and the children were not seriously challenged and seemed to me to be reasonable expenses. As far as her assets and liabilities are concerned, she is the registered proprietor of the property in which she lives, which she values at about $100,000. That property is unencumbered. Apart from that property she has a car with a fairly modest value, furniture and household effects, and other assets which, again, have a fairly modest value.
Turning to the husband's income-earning capacity and expenses, the husband is employed as a welder and his response indicates that he earns $522 per week and has another $24 per week available to him from the lease of a farm, to which I will refer, making a total of $546 per week. The husband is the registered proprietor of the unit in which he is living and is also the registered proprietor of two other properties. One of those properties is a vacant block in M Street, S; and the other is a farm in N which he says has recently been leased and is providing him with $24 per week, referred to – it appears that that property has only just been leased.
The husband has in the past, I find on the evidence before me, done some security work to supplement his income. I find on the balance of probabilities on the evidence, that he is still doing some of that work from time to time to supplement his income, although he may not be doing it as frequently as he was in the past. He has, I find, some capacity to work overtime, although I accept his evidence that there is not a lot of overtime available. On the evidence before me he has chosen not to take overtime but I am satisfied that from time to time overtime would be available to him if he chose to do it.
He has, since December last year, been in a financial position to increase, voluntarily, the mortgage payments that he is making from $166 to $189.50 per month. In addition, his expenses include the payment of rates on all three properties that I have referred to. On the figures presented by the husband in his response, he has an excess of income over expenditure of $85 per week. However I am satisfied, for the reasons that I have indicated, that he has the capacity to supplement that income to some extent.
He also has an interest in three properties and the capacity, accordingly, to organise his financial affairs in various ways. He is in a position to lease the properties, or indeed he is in a position to sell them and to invest the capital so received in some other way. The amount being sought for L is $146 per week. That represents 40 per cent of what I have found her weekly expenses to be. In my view, having regard to the provisions of the Act and particularly those provisions which require that the parents should share equitably in the support of their children, it is reasonable in my view that the husband should pay $146 per week, which represents 40 per cent of L's weekly needs.
The wife will be left with the majority of the support for L, which she will have to find from her income. Both parties have their own living expenses to meet and I am satisfied that, in the main, the husband's expenses, perhaps with the exception of the rates which are not necessary because they relate to three properties, are reasonable. Both parties will have to tighten their belts to some extent but they have an obligation to provide for the support of their children. And each of the parties, I am satisfied, will be contributing a fair and equitable portion of L's expenses and any hardship will fall, in my view, equitably on the parties.
The final matter that I want to mention is the amount that the husband has paid earlier this year for the first semester fees. If I average that sum out over the first six months of the year, it comes to approximately $112 per week. That is less than the sum that I have found is a reasonable contribution to L's expenses and, accordingly, it is a reasonable commitment for the husband to have made for the first part of the year. The order for L is sought to commence on 1 July and, in my view, it is reasonable that it does so, the husband having made what I regard as a reasonable commitment for the first six months of the year.
Accordingly, in the matter of F and S, I make the following orders:
(1)That pursuant to section 66L of the Family Law Act 1975 the Husband pay to the Wife maintenance for the child, L J F born on the 22nd day of June 1982 in the sum of $146 per week, the first payment to fall due on the 1st day of July 2001.
(2)That the maintenance for the said child is to be paid during the continuance of her full-time course at La Trobe University and to conclude upon the completion of her current course or the cessation of her full time studies, whichever is the earlier.
(3)That the Application and Response be dismissed.
IT IS DIRECTED
(4)That the matter be removed from the pending cases list.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Bryant CFM
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