SAGE & SAGE - [2011] FamCAFC 127

FAMILY COURT OF AUSTRALIA

SAGE & SAGE

[2011] FamCAFC 127

FAMILY LAW - APPEAL – ADULT CHILD MAINTENANCE – Appeal against orders made for the payment of adult child maintenance for the child throughout his tertiary education – Whether the Family Law Magistrate erred in taking into account consent orders for the payment of adult child maintenance for the parties’ older child – The terms of the previous consent orders were a relevant consideration in the exercise of the Court’s discretion, provided the “necessity” threshold in s 66L(1) of the Family Law Act 1975 (Cth) was first satisfied – Whether the Family Law Magistrate made findings which were not available on the evidence and reversed the onus of proof concerning the requirement to show "necessity" – Where up until the time the wife had filed her evidence the husband had sought orders that could only be made if the Court was satisfied that an order for maintenance was “necessary” – Her Honour adopted a commonsense approach and no error is demonstrated – Appeal dismissed – Husband to pay the wife’s costs

Family Law Act 1975 (Cth)
Family Law Amendment Act 2000 (Cth)
Family Law Rules 2004

APPELLANT:

Mr Sage

RESPONDENT:

Ms Sage

FILE NUMBER:

PTW

6465

1995

APPEAL NUMBER:

2010

DATE DELIVERED:

10 June 2011

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

10 May 2011

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

26 November 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hedges

SOLICITOR FOR THE APPELLANT:

Crossing Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Paterson & Dowding

Orders

The appeal be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Sage & Sage is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE
FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 23 of 2010
File Number: PTW 6465 of 1995

Mr Sage

Appellant

And

Ms Sage

Respondent

REASONS FOR JUDGMENT

Introduction

This is the husband’s appeal against orders made by Family Law Magistrate Vander Wal on 26 November 2010 for the payment of adult child maintenance for H, the younger of the two children of the husband and the wife.
The orders require the husband to pay H an annual allowance of $9,744, commencing in the first semester of 2011, and continuing until the completion of his first tertiary degree.
The allowance is payable only if H is enrolled in a “recognised career course” at an Australian tertiary institution, and provided he is studying full-time and in good standing. The payments are to be varied each year in accordance with movements in the Consumer Price Index.
The orders appealed are in essentially the same terms as those made by consent in November 2005 relating to H’s older sister, prior to her commencing university in 2006.

Brief background

The husband is 55 and is a civil engineer. The wife is also 55 and is a part-time bookkeeper.
The parties were married in August 1985 and separated in November 1994. Both have since repartnered.
There are two children of the marriage, L (23) and H (18).
H was in the final year of his secondary education when the orders the subject of this appeal were made. At the time, he had not yet been accepted into any tertiary course, although he hoped to undertake an Arts/Commerce degree in 2011.

Procedural history

The procedural history is of significance for reasons which will emerge.
The wife commenced proceedings for adult child maintenance for H in April 2010. The orders sought were in the following terms:
1. If [H] born [January 1993]:
(a) Undertakes full time study in a recognised career course through enrolment at an Australian tertiary institution commencing in first semester 2011;
(b) Continues to study full time without changing the career course undertaken.
(c)Maintain satisfactory progress during the continuation of his studies as required to maintain “good standing” pursuant to faculty rules;
(d)The respondent pay to [H] an annual allowance of $9,744.10 with such payments:
(i) To be paid in two instalments of $4,872.05 on 1 February and 1 July of each year commencing 2011;
(ii) To be paid for each year until the conclusion of the first degree pursuant to (b) hereof.
2. The payments referred to in paragraph 1 above be varied on 1 July in each year commencing 2012 by the movement in the Consumer Price Index (all Perth) in the proceeding 12 months.
The husband filed his Response in July 2010. He sought the following orders:
1. Subject to the following, the respondent pay to [H], as child maintenance, $8,500.00 per annum, in the form of fortnightly payments, paid in advance, into a bank account nominated by [H] (“the fortnightly payments”), if:
(a) [H] enrols in full-time study in a single-degree or double-degree course, to which the HECS scheme applies, at a tertiary institution in Australia (“the course”);
(b)      the course is of not more than four years’ duration;
(c)[H] commences the course in the first semester of the 2011 academic year; and
(d)[H] provides written confirmation of that enrolment to the respondent not later than 4 weeks prior to the commencement of first semester in 2011,
the first fortnightly payment for each year being due 14 days before the commencement of first semester, and the last fortnightly payment in each year being due 14 days after [H]’s final assessment in that year.
2. Subject to the following, the respondent’s obligation to make the fortnightly payments does not extend beyond the fourteenth day after the completion of [H]’s final assessment in:
(a)      2014; or
(b)      the final year of the course,
whichever occurs first.
3. Subject to the following, the respondent’s obligation to make the fortnightly payments ceases immediately, if [H]:
(a)      joins the Australian Defence Force Academy;
(b) becomes an Australian Defence Force sponsored undergraduate;
(c)changes his enrolment, except with the prior written consent of the respondent;
(d) completes the course for the relevant degree, regardless of whether any further period of study might give rise to Honours or other qualification;
(e) fails to provide to the respondent not later than 14 days after the end of each semester a copy of his academic record, including his enrolment details, unit choices and unit results; or
(f)in more than one semester, fails to fulfil the requirements of the tertiary institution for the completion of the course as they relate to the semester in question.
4.        If:
·    [H] completes the course not later than the 2014 academic year; and
·    the fortnightly payments then cease,
not later than 14 days after [H] having:
(a)      completed and passed the course; and
(b) provided to the respondent a copy of his unit results, not later than 14 days after the end of the last semester of the course,
the respondent pay to [H] $5,000.00 by way of lump sum.
5. Commencing in 2012, the fortnightly payments be varied on 1 July in each year by the movement of the consumer price index (All Groups Perth) in the preceding 12 months.
6.        The applicant pay the respondent’s costs.
7.        The application otherwise be dismissed.
By an order made on 20 July 2010 the matter was set down for trial on 13 September 2010. On the same day, the parties were ordered to file and serve any affidavits on which they intended to rely by 30 August 2010.
The parties filed their affidavits on 30 August 2010, having earlier filed financial statements. Both the husband’s affidavit and his financial statement purported to have been “affirmed” by his present wife pursuant to a Power of Attorney granted in 2007.
On the same day as the husband and the wife filed their affidavits, the husband filed an Amended Response, in which he sought that the wife’s application be dismissed, with costs. The purported amendment came just two weeks before trial, and without any order having been made granting leave to amend. The Amended Response was “affirmed” by the husband’s present wife pursuant to the Power of Attorney.
The wife’s trial affidavit was brief, which was understandable given that the parties (at least at that stage) were only approximately $24 per week apart in the quantum of support they considered should be paid to H. Apart from that minor issue, the real point of contention appeared to be the terms on which the payments were to be made. One of those issues was whether the husband was entitled to see “enrolment details, unit choices and unit results” as H progressed with his tertiary studies. The parties had previously litigated over this same issue concerning L, with the Magistrate on that occasion having determined that the husband was not entitled to the information unless the child elected to make it available.
In any event, the wife’s affidavit recorded that the husband was currently paying adult child maintenance for L at the rate of $9,987 per annum, and that his current child support obligation for H was $15,083 per annum. The wife noted that the “logic of the form of Orders” she proposed was that the “structure” of the support payable for H would be the same as for L. She observed that “the husband in his Response effectively agrees to pay a level of child maintenance for [H], although less than sought in my application”. The wife then went on to address the points of difference between the parties concerning the terms on which the payments would be made.
The affidavit filed on behalf of the husband was even briefer than that of the wife. Although the Magistrate ultimately refused to receive the affidavit into evidence, I propose to refer to its content as it will indicate that by the time the wife’s solicitors were served with the document (the evidence does not reveal when this occurred), the wife was on notice as to the reasons why the husband was now proposing that the wife’s application be dismissed.
After setting out basic background information, the husband’s affidavit asserted that the wife had commenced proceedings without following the pre-action procedures. The affidavit then recorded that the husband had filed his Response on 16 July 2010, after attempts to negotiate a settlement had been unsuccessful. The affidavit then continued:
13. I have asked the applicant for disclosure of any steps that [H] has taken to obtain part-time employment if/when he commences university, and what his proposed contact hours at university will be.
14.Attached to this affidavit and marked “A” is a copy of the letter that I have sent to the applicant dated 26 August 2010.
15.No information has been provided relating to his chosen university course, his intended contact hours with the university, or any attempts to gain part-time employment.
16.The applicant has not provided me with any reason why the amount sought for [H] is reasonable, except that it is the same to what [L] received previously.
17.I do not know whether [H] will attend university, or, if he does, whether he will be able to support himself.
18.I seek an order that the court dismiss the applicant’s application and that the applicant pay the respondent’s costs of and incidental to this application.
The letter attached to the affidavit was dated 26 August 2010, the second last business day before the affidavit evidence was due to be filed. The letter read as follows:
We refer to your letter dated 12 August 2010.
All previous offers made by our client in this matter are now withdrawn.
Please let us know;
1.the steps [H] has taken to obtain employment during his university studies; and
2.[H]’s contact hours at university for his proposed course of study.
Please also provide copies of such documents that may corroborate the answers to questions 1 and 2, above.

The hearing before the Magistrate

The husband works overseas and did not attend the trial. He was represented by counsel, as was the wife.
Shortly after commencement of the hearing, her Honour noted that the husband appeared to have changed his position and she enquired whether counsel could tell her the basis on which he had done so. Counsel for the husband responded (Transcript 13 September 2010, p 3):
HEDGES, MR: Yes, he sought advice from me. My advice was that, "The previous agreement has no precedent for this situation. There was no agreement." I said I thought that his wife "would have been wise to have accepted what he proposed. She hadn't, therefore the matter was at large. Clearly, the matter was prematurely brought, they will struggle to prove necessity, they haven't addressed any of the requirements for an adult child maintenance matter, and if you defend it you are likely to win." That's why.
The following interchange then occurred between her Honour and counsel for the husband (Transcript 13 September 2010, p 3):
HER HONOUR: Does he accept that closer to the time, once we know if his child is actually in tertiary education, it's a different ballgame?
HEDGES, MR: There are two aspects in this: (1) is if there was some semblance of a recognition that what he's asking for is reasonable, we probably wouldn't be here - but that's not the way it's been done; (2) Once he gets the evidence about what the child proposes or what the adult proposes to do, what the time of the course is, how many contact hours there are, whether he's got any desire to work, whether there is work - all of the normal matters - he'll then consider his position and take advice from me which may or may not determine his outcome.
Her Honour then enquired of counsel for the wife whether she accepted that it was “appropriate that perhaps the court have some understanding – we need to know if this lad is even going to be in tertiary education?” Counsel for the wife drew attention to the fact that the legislation permitted an application for adult child maintenance to be made in the year the child turns 17, and that the orders proposed by the wife were predicated upon the child undertaking full time study in the following year. Her Honour then asked whether the wife wanted to “box on today”, to which counsel for the wife responded in the affirmative.
After objection was then taken to the manner in which the husband’s documents had been executed, the learned Magistrate properly ruled that she would not accept “evidence sworn by a power of attorney” (Transcript 13 September 2010, p 4). Counsel for the wife then acknowledged that without evidence from the husband she may have difficulty in establishing his capacity to pay, and raised the possibility of an adjournment to allow the husband to provide his documents in proper form. Counsel for the husband dealt with this concern by conceding that the husband had the capacity to pay whatever amount the Court determined was appropriate. On the basis of that advice, counsel for the wife advised that she was able to proceed without seeking an adjournment.
Counsel for the wife then made her opening address, in the course of which she drew attention to the fact that at the time the wife swore her affidavit she was “effectively commenting on the … response to her application that sat before the court, which was, at that time, indicating that [the husband] was prepared to pay the sum of $8500 a year in relation to various conditions and various other orders that he sought, including the payment of a lump sum bonus, if you like, if the child finished his course within three years” (Transcript 13 September 2010, p 9).
Near the conclusion of her closing address, there was an exchange between counsel for the wife and the presiding Magistrate concerning the reference to the “lump sum bonus” which the husband had proposed in his original Response filed in July 2010. Counsel for the husband interrupted that exchange by enquiring, “haven’t you disallowed those documents because they weren’t properly executed?”, to which her Honour responded that the Response had not, in fact, been signed by the husband, but rather by his solicitor. The exchange between counsel for the wife and the Magistrate concerning the content of the original Form 1A then continued without further complaint by counsel for the husband.
The wife was then called to give evidence-in-chief. In doing so, she did no more than confirm the contents of her affidavit. She was then cross-examined briefly by counsel for the husband, but his questions related only to her income and matters related to her financial position and that of her partner.
In his closing submissions, counsel for the husband maintained the position outlined by him at the commencement, namely that the wife had provided no evidence that could satisfy the Court that the provision of maintenance for H was necessary in order to enable him to complete his education.

The reasons of the Family Law Magistrate

The Family Law Magistrate commenced her reasons by setting out the orders sought by the wife in her Form 1 Application. She then set out – in full – the detailed orders sought by the husband in his original Form 1A Response. Having done so, she then recorded, “On the 30 August 2010 [the husband] filed an amended Form 1A Response in which he now proposes the following orders be made instead” – and she then recited the orders contained in that document.
Her Honour next referred to background facts, before setting out the orders made in November 2005 concerning financial support of L during her tertiary studies. She commented that it was apparent the orders made regarding L mirrored those now sought by the wife for H.
Her Honour also noted that, pursuant to a 2002 child support agreement, the husband was paying child support for H at the rate of $15,083 per annum, which would end when he turned 18 in January 2011.
Her Honour then recited s 66L(1) of the Family Law Act 1975 (Cth), which provides:
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.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
The Magistrate observed that the wife “says that a payment is necessary to enable [H] to complete his education at a tertiary level”. She also noted the wife’s evidence that H hoped to attend university in 2011 and that his preference was to enrol at the University of Western Australia in an Arts/Commerce degree.
Her Honour continued:
14.[The husband’s] change of attitude to this application taken in the course of the proceedings is that he now considers that the application has been brought prematurely. His Counsel argued that the Court must not make any orders unless it considers it necessary to enable [H] to complete his education. It was argued that the Court needs to know the time that [H] will spend in study so as to ascertain how much time he has to spend working to support himself. He says that this will vary depending on the actual course in which [H] enrols. For example, it was suggested that the number of hours required to be devoted to study if he was enrolled in a course to study medicine might well be different to that required to enrol in a course such as commerce. It was argued that the Court has no evidence as to the course [H] will be studying or the number of hours he will be required to devote to those studies. He argued it is not known at this stage if [H] could obtain sufficient employment to provide his own financial support. Accordingly, it was proposed that the application must of necessity be dismissed in the circumstances.
15.The legislation clearly recognises that an application might be made prior to a child turning 18 years of age.
16.[H] was born in January. I consider I can take judicial notice of the fact that university offers of a place in courses generally do not come out until early to middle of January in each year. Accordingly it is unlikely that [H] will know precisely which course he has been offered and accepted into until around the time of his birthday.
17.[The wife’s] response to this was that the orders are expressed as conditional upon [H] undertaking full time study in a recognised career course through enrolment at a tertiary institution which she said is sufficient to address this concern. She says if [H] does not commence study at a tertiary institution on a full-time basis in a recognised tertiary course then the obligation will not be activated.
18.Significantly, the parties had agreed that such proviso should operate for [L] and orders were made in respect of her financial support in terms of her tertiary studies in the November prior to the commencement of her university studies, even though she would have been in the same situation.
19.The proposed orders require that [H] undertake a full time study load. Whatever his formal hours at university might be, undoubtedly there will be study, research, preparation of assignments and for examinations that will require additional hours. Historically this was regarded as a full-time work load and students did not expect to have any significant paid employment in addition to those study commitments. It has become almost a community expectation in recent times that students undertake some part time employment while they are studying to assist in their financial support. However, in my view it is not expected or reasonable that a student fully support himself while undertaking a full time study load and whatever degree [H] enrols in, it seems likely that he will require some financial support from his parents.

Her Honour went on to note that the wife had estimated H’s “discretionary expenses” at $496 per week, and observed that these had not been challenged. Having referred to published research concerning the costs of children, and having noted the absence of challenge by the husband, her Honour concluded that the figures provided by the wife were “more or less reliable”. She observed that the amount being sought by the wife from the husband approximated to only about $187 per week.
The Magistrate then said:
23.[The husband] did not suggest that [H] had special skills that will enable him to obtain other than employment typically obtained by 18 year old students with limited work experience that will need to fit around study commitments. I consider such employment generally attracts a fairly modest hourly rate of pay. In those circumstances, I consider it would not be reasonable to expect [H] to earn and contribute much more than $150.00 per week towards his financial support. I therefore consider it likely that [H] will have a shortfall of nearly $350 per week between his own likely income and his anticipated expenses.
Having regard to the disparity in the incomes of the parents, her Honour said it was reasonable for the husband to bear the greater responsibility for H’s support. She observed that even if the wife worked on a full time basis, she would earn only about a third of the husband’s income.
Her Honour then expressed her satisfaction that the provision of maintenance by the parents was necessary to enable H to complete his education and that the amount sought by the wife was reasonable.
The Magistrate next noted that the wife was seeking that the maintenance be paid in two instalments each year (whereas the husband had originally proposed fortnightly payments). She found there was merit in the wife's proposal and commented that the parties had evidently considered that was the most suitable arrangement when they agreed to the orders concerning L.
Having found it was appropriate for there to be variations in the maintenance in accordance with movements in the Consumer Price Index, her Honour went on to make orders in the terms sought by the wife.

The Grounds of Appeal

There were two main elements to the husband’s appeal.
It was first asserted the Magistrate had taken into account an irrelevant consideration in having regard to the arrangements the parties had made for L’s support when determining the appropriate arrangement for H.
Secondly, it was asserted there was no evidence to support the finding that H needed financial support to complete his tertiary education. It was argued that his Honour’s approach effectively reversed the onus of proof by requiring the husband to adduce evidence to show that H did have the capacity to support himself throughout his university studies.

Ground 1 – taking into account an irrelevant consideration

By this ground, the husband takes issue with her Honour having recited in her reasons the terms of the 2005 consent orders regarding L, and also with her finding in paragraph 18, which for convenience is repeated below:
18. Significantly, the parties had agreed that such proviso should operate for [L] and orders were made in respect of her financial support in terms of her tertiary studies in the November prior to the commencement of her university studies, even though she would have been in the same situation.
Counsel for the husband submitted in his written outline that “the previous consent agreement was irrelevant to the application relating to a different child and, although the “significance” cannot be ascertained from the judgment, the finding [in paragraph 18] must have had an effect upon the exercise of discretion”. In his oral submissions, counsel observed that judicial officers generally choose their words carefully, and that her Honour, in using the word “significantly”, must be taken to have placed weight on the arrangements made for L.
It was submitted in reply that it was “wholly speculative” to suggest that the finding in paragraph 18 “must” have had an effect upon the outcome, and that, in any event, her Honour was referring only to the timing of the agreement regarding L’s support, which was reached prior to her being accepted into a tertiary institution. In the alternative, it was submitted that if the Magistrate had taken the orders concerning L into account for any other purpose, it was open to her to do so.
I find no merit in this part of the husband’s complaint. Her Honour’s recitation of the terms of the consent order concerning L provided relevant background. Apart from anything else, it explained why the wife was seeking the orders she had proposed for H (which were in almost identical terms to those agreed for L). The fact such orders had previously been agreed in relation to the other child of the marriage would, in my view, be one relevant consideration in the exercise of the Court’s discretion, provided the “necessity” threshold in s 66L(1) was first satisfied.
The husband’s liability to contribute to H’s financial support, and the level of that support, were not the only issues. It was apparent that if the Court determined that the husband should pay maintenance, the conditions on which the payments were to be made, and the mechanism for the payments, were of importance to the parties – evidenced by the fact they had previously litigated over one of the conditions on which payments would be made for L. In my view, the fact the parties themselves had previously agreed a mechanism for the way in which, and the conditions on which, support for an adult child should be paid was a relevant consideration. The existence of such an agreement would allow the Court to infer (as her Honour expressly did) that the parties had previously considered it to be “the most suitable arrangement”. In such circumstances, it could be argued that the husband carried the forensic onus of showing why there should be a departure from longstanding arrangements.
Similarly, I find no merit in the complaint about her Honour having found “significance” in the fact the parties had agreed on the “proviso” in the orders concerning L in the same terms as the wife proposed for H. It is true her Honour did not explain why she considered it was “significant” that the parties had previously agreed such a proviso; however, absent a challenge to the adequacy of the reasons, appellable error could only be demonstrated if the existence of such a proviso in the previous orders could have no significance at all in resolution of the dispute.
The potential significance of the existence of the proviso in the earlier orders was that the parties themselves had demonstrated how valid orders can be drafted for the payment of support of a child at a tertiary institution prior to the child being accepted as a full-time student at that institution. The fact that her Honour placed no more significance than that on the earlier orders is strongly supported by reference to what she had said in the paragraphs immediately preceding paragraph 18.
The paragraphs preceding paragraph 18 can also be seen as acceptance by her Honour that it is most unsatisfactory that any child should be expected to embark on tertiary studies without knowing the level of support they will receive. This is especially important, as her Honour appreciated, in the case of a child such as H, who was to attain his majority just before commencement of tertiary studies.
The obvious difficulty, which her Honour did not need to spell out, was that if the parents could not reach agreement about the level of support, H would be well advanced in his tertiary studies before the Court would be likely to be able to resolve the dispute. It is noteworthy that in the present case, the dispute was ultimately not resolved until some seven months after the date of filing of the application.
It is also worth mentioning in this context that when s 66L(1) was amended by the Family Law Amendment Act 2000 (Cth) to allow an application to be made for a child who has attained the age of 17 years, the accompanying Explanatory Memorandum noted that “This provision will ensure there is no gap in the payment of maintenance for such a child between when they turn 18 and the granting of any court order” (Explanatory Memorandum to the Family Law Amendment Bill 1999 (Cth)). Logic suggests therefore that it was contemplated that courts would engage in a process of prediction about the position in which a child would find themself when they attain their majority. Having engaged in such a process, it is then perfectly proper for a court to put in place provisos such as the ones the parties had agreed in the case of L, to cover the eventuality that the child did not take up tertiary studies, or did so on something other than a full time basis.
I accept that proof of the fact that a father has agreed to contribute to the support of one of his children during their tertiary education, does not establish that the payment of maintenance for another of his children is “necessary” in order to allow that child to complete tertiary education. However, there is nothing in paragraph 18 of the reasons to suggest that her Honour adopted such an approach.
For these reasons I find no substance in Ground 1.

Grounds 2 and 3 – reversal of the onus of proof

These grounds assert that the Magistrate made findings which were not available on the evidence, and that her approach to those findings indicated she had reversed the onus of proof.
The grounds were expressed in these terms:
2. The Learned Magistrate made errors of fact and law in finding at paragraph 19 that “In my view it is not expected or reasonable that a student fully support himself while undertaking a full time study load and whatever degree [H] enrols in, it seems likely that he will require some financial support from his parents.”
2.1 The errors are that the findings were not available upon the evidence and the findings had the effect of reversing the onus of the proof [sic].
3. The Learned Magistrate made an error of fact and law in finding at paragraph 23 that “[the husband] did not suggest that [H] had special skills that will enable him to obtain other than employment typically obtained by 18 year old students with limited work experience that will need to fit around study commitments. I consider such employment generally attracts a fairly modest hourly rate of pay. In those circumstances, I consider it would not be reasonable to expect [H] to earn and contribute much more than $150 per week towards his financial support. I therefore consider it likely that [H] will have a shortfall of nearly $350.00 per week between his own likely income and his anticipated expenses”.
3.1The errors are that the findings were not available on the evidence and the findings had the effect of reversing the onus of proof.
It is not in doubt that the wife originally carried the onus of establishing that payment of maintenance by the husband was “necessary” to enable H to complete his education. I also accept that in determining whether it was “necessary”, the capacity of the child to undertake employment would be a matter to be taken into account.
Although the Magistrates Court of Western Australia is not a court of pleading, one of the purposes of parties being required to file formal Applications and Responses is to set the parameters of the dispute, and hence to alert the parties to the evidence that will be needed to support their position. In the present matter, at the time she filed her trial affidavit, the wife was entitled to proceed on the basis that she would need nothing more than the husband’s Response to establish that an adult child maintenance order was “necessary” to enable H to complete his education. In my view, she was entitled to provide her evidence for the hearing on the basis that the only issues for determination were:
·    whether the amount to be paid was $9,744 per annum or $8,500 per annum;
·    the terms on which the payments would be made;
·    the timing of the payments.
It is true that, on the second last business day before the evidence was due to be filed, the husband’s solicitors advised the wife’s solicitors he was withdrawing “all previous offers”. The wife was not to know that by reference to “offers” the husband may have meant to refer also to his formal Response, nor would it have been reasonable to expect the wife and her solicitors to scramble to provide evidence that had not previously been required.
This discussion gives rise to the question of whether the husband was entitled to amend his Response at such a late stage in the proceedings. I raised that issue at the hearing of the appeal, it not having been raised by anyone previously. As both counsel were caught by surprise, I gave them the opportunity to provide written submissions on the topic. Both parties provided written submissions, although it is unclear by whom they were drawn.
Applications for adult child maintenance are started by an Initiating Application. Rule 11.10(1)(a) is the provision of the Family Law Rules 2004 governing the amendment of applications and responses in proceedings commenced by Initiating Application. Regrettably, the written submissions of both parties on this topic were prepared by reference to Rule 11.10 in the form in which it stood prior to the amendments made by the Family Law Amendment Rules 2009 (No 1) (Cth). Sufficient court time and resources have been spent on this matter already and I do not propose to give the parties a further opportunity to make submissions based on the correct rule.
Given the view I have reached in relation to the substantive issues raised on the appeal, it is ultimately unnecessary for me to determine whether leave was needed for the husband to amend his Response and, if so, whether the wife had impliedly consented to leave being granted, or the Court impliedly dispensed with the requirement for leave to be obtained. I am prepared to proceed, without deciding, on the basis that leave was not needed, or was impliedly given because of the way the matter was conducted.
Even though her Honour may therefore be seen as having conducted the matter on the basis that the husband had formally changed his position, she could not overlook the fact that until two weeks before the trial he had himself been seeking orders that could only be made if the Court was satisfied that an order for maintenance was “necessary” in order to allow H to complete his education. That she did not overlook his previous position is clear from the fact she recited in full the lengthy orders he sought in his Response, notwithstanding the subsequent amendment.
Her Honour could also not overlook the fact that the evidence the wife had provided for trial had been provided at a time when there was no contest that an order for maintenance was “necessary”. Further, she could not overlook the comments made by counsel for the husband in explaining his client’s change of approach, which in my view could properly be seen as conceding that the position adopted was tactical, and a manifestation of the husband’s annoyance that the wife had not accepted an offer he considered was reasonable. It is also to be noted that at all times the husband was legally represented.
In these circumstances, I consider her Honour was entitled to adopt a more robust approach than would have been justified had the issue all along been the “necessity” for any order for adult child maintenance. In my view, the husband ought not to have been allowed, and was not allowed by the Magistrate, to take advantage of the fact that he allowed the wife to present her evidence for trial and then tried to move the goalposts based on her failure to address a matter that was not then in issue.
Her Honour acknowledged it was still obligatory to find that the payment of maintenance was “necessary”, but in my view she did so by adopting a commonsense approach which ensured the matter was disposed of in the fairly summary way which has long been regarded as the proper approach to cases involving maintenance. It is important in the interests of children (and their parents) that litigants not be permitted to conduct maintenance litigation in a way which increases expense out of all proportion to the matters in issue, and unnecessarily occupies the resources of the Court.
Her Honour’s sensible approach ensured the matter was completed on the date allocated, freeing the Court to deal with other pressing litigation. The result was just $24 per week more than the husband was prepared to pay two weeks earlier, and the amount was payable on the same terms as had been previously agreed as being appropriate for the other child in the family.
Finally, I do not accept that the findings of fact made by her Honour were not open to her. They were in part supported by evidence which the wife had provided and in part by her Honour taking notice of matters properly the subject of judicial notice by a court of specialist jurisdiction.

Conclusion

No appellable error having been demonstrated, the appeal will be dismissed. Having been entirely unsuccessful, and in a stronger financial position than the wife, the husband should pay the wife’s costs.
For completeness, I record that I heard this appeal as a Single Judge pursuant to a delegation made by the Chief Justice.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 10 June 2011.

Associate:

Date: 10 June 2011