Spencer and Spencer - [2008] FMCAfam 919

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SPENCER & SPENCER

[2008] FMCAfam 919

FAMILY LAW – Application for adult child maintenance – father prepared to pay – mother impecunious – consideration of s.66L of the Family Law Act 1975.

Family Law Act 1975, s.66L

FM v FM (1997) FLC 92-738
Tuck v Tuck (1979) 7 Fam LR 492

Applicant:

MS S SPENCER

First Respondent:

MS M SPENCER

Second Respondent:

MR SPENCER

File Number:

DGC 2314 of 2008

Judgment of:

Burchardt FM

Hearing date:

14 August 2008

Date of Last Submission:

14 August 2008

Delivered at:

Dandenong

Delivered on:

4 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms Williams

Counsel for the First Respondent:

Ms Stoikovska

Solicitors for the First Respondent:

Rosalie Gutman & Associates

The Second Respondent:

In person

ORDERS

That the application filed 2 July 2008 be dismissed.
That there be no order as to costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 2314 of 2008

MS S SPENCER

Applicant

And

MS M SPENCER & MR SPENCER

Respondents

REASONS FOR JUDGMENT

The Applicant, S Spencer, seeks orders from the Court to compel her mother, M Spencer, to pay her adult child maintenance. She seeks the sum of $160.00 per week, or alternatively a lump sum of $22,464.00, by way of adult child maintenance to enable her to continue in her studies at the Australian Guild of [omitted].
Although he is named as the Second Respondent, Ms S Spencer's father actively supports Ms S Spencer's application. He himself has undertaken to and no doubt will pay $160.00 per week to his daughter by way of child maintenance in any event.
The mother, Ms M Spencer, says she cannot afford to pay any child support.
For the reasons that follow, I accept what the mother says and I will not therefore make an order for the child support whether on a periodic or lump sum basis.

The facts

It is not possible to understand the issues in controversy in this proceeding without paying some regard to the very distressing background of the relationship between the parents.
Ms S Spencer's mother Ms M Spencer was born in 1956, and her father Mr Spencer in 1958, both in Poland. They lived in Poland and were married in 1980 in that country. They separated in October 2006 after what was obviously a lengthy marriage which produced not only

Ms S Spencer but also two other older sisters.
Upon arrival in Australia, Ms M Spencer worked for some years in unskilled factory work, and had a period of part‑time work in a [omitted] following the birth of one of her daughters. Ms M Spencer has no formal qualifications and her command of English, while relatively fluent, is by no means perfect, as I observed from her speech while giving evidence. Although she appears to have dabbled in tattooing work, I accept her evidence that she is not presently able to undertake it.
Ms M Spencer makes about $195.00 per week doing [omitted] part-time and has been in receipt of $250.00 per week maintenance from

Mr Spencer. That spousal maintenance will cease upon the conclusion of a property settlement between the parents on 21 August 2008.
Evidence has been tendered before me which shows that presently

Ms M Spencer is depressed and will not be able to work at least until September 2008. Having observed her demeanour, and bearing in mind the notorious fact, of which I hold myself able to take judicial notice, that depression does not often disappear completely with any rapidity, it is plain that her future employment prospects are extremely debatable.
The only other work that Ms M Spencer has done during her time in Australia was to assist Mr Spencer in running a [omitted] business which produced a joint income, as I find, of around about $60,000.00 per annum. That income will, upon the final property settlement, be retained wholly by Mr Spencer.
It is wholly clear that the way in which separation occurred was deeply hurtful to all concerned. It has been asserted - and it appears reasonably likely – that Mr Spencer formed, either before separation or shortly thereafter, a relationship with a lady whom Ms M Spencer regarded as a close friend.
Since separation, Ms S Spencer has spent very little time with her mother. Ms S Spencer says that the mother left for Poland without notice in 2006 and did not return until May 2007. Ms S Spencer's evidence was vividly hostile to her mother. She displayed a very significant and overt sense of betrayal and abandonment by what she perceived as her mother's indifference to her. Her evidence was interrupted by tears and obvious distress.
Importantly for these purposes, it was Ms S Spencer's position that her piano playing, which clearly plays a vital part in her life, had been seriously disrupted following separation because the mother would not let her play the piano, which was in the former matrimonial home. She made complaint of the time it had taken for the mother to permit the father and her to collect the piano so that she could recommence her playing.
By way of contrast, the mother said the piano was always available for her child, as indeed was her home generally. The mother, while blaming Ms S Spencer for her lack of contact with her, was likewise clearly and significantly distressed in giving her evidence.
The evidence given by Ms S Spencer and Ms M Spencer was in large part almost a vivid counter-reflection of that of the other.
Ms S Spencer is obviously a gifted pianist, but was unable to obtain entry to any institution other than the Guild, which is a private body. That means that she does not get and cannot access a HECS loan. She must pay her fees of approximately $9,000.00 per annum herself.
Her evidence was that when she finished year 12 she was continually taken up with auditions and had little time off. She then started to work at, and in a sense for, the Guild in January, and was not in a position to do more. She said she will continue to work 13 and a half hours per week, which is a lot when you bear in mind she also has 10 contact classes and piano lessons and 30 hours of practice and study required each week.
She was not certain as to what amount of free time she might or might not have in the single holiday that the institution apparently takes over the latter part of the year and into the early part of the next year. She said she had auditioned for six TAFE courses but had not had enough time to practice. She said that she was still in a sense making up for the lost time that had occurred following her parents' separation.
Although counsel for the mother sought to attack Ms S Spencer's evidence, I make it clear that I entirely accept all of it. I accept that she made every proper endeavour to obtain a course where funding would be more readily available to her. I likewise accept that she is making every proper and reasonable endeavour to support herself through the work that she presently does and will continue to do.
I also have no doubt that if Ms S Spencer does find herself with substantial amounts of free time, she will likewise seek to augment her income by other work.
While self-evidently Ms S Spencer is seeking that her mother support her, and while self-evidently should this be the case Ms S Spencer will have more money and more free time, I reject completely the somewhat unfortunate submission made on behalf of the mother to the effect that Ms S Spencer was in effect seeking to live a life of ease by contributing to a state of poverty on the mother's part.
Mr Spencer gave oral evidence. It emerged that his eldest child is

26 years old and lives with Ms S Spencer. He helped them set up house and will pay and help his daughter as much as he can.
In cross‑examination it emerged that the elder daughter, to whom reference has been made, works at the [omitted] Bank and in some apparently reasonably non-junior position. Mr Spencer suggested that he had no idea as to her earnings when questioned whether she earned more than $40,000.00. I would suspect that this sister makes earnings well in excess of this sum.
It also emerged that the father is living with Ms C in a home wholly owned by Ms C. He does not pay rent to her. Ms C appears to have some form of employment, albeit relatively recent, and I have no difficulty in inferring that he shares his household expenses with her.
I accept that Mr Spencer has but little in the way of savings. His evidence in this regard was consistent with the documentation put to him and was given in an impressive way.
Ms M Spencer gave evidence, and in evidence in chief the main points that emerged were her lack of formal qualifications, her work history as I have already described it, and the fact that she has borrowed the whole of the deposit for a home that she entered into a contract of purchase for on 31 July 2008. I accept Ms M Spencer's evidence that this was purely coincidental with the date of the filing of her Response.
It emerged that there is some confusion over the tax position in which Ms M Spencer finds herself. It is apparent that she has been served with a tax bill in excess of $9,000.00 by the ATO, but it is not clear how much if any of that is going to be paid by Mr Spencer pursuant to the terms of the property settlement into which they have entered. I am not able to say what the ultimate outcome will be.
It is common cause that at settlement, Ms M Spencer will receive about $181,000.00, and much of the cross‑examination of her concentrated upon the various disbursements that she has set out at paragraph 5 of her second affidavit.
I accept that the figures contained in that paragraph are accurate. While they are in some cases of recent provision, they reflect an obvious endeavour by her solicitors to put on affidavit her current financial circumstances. I see no reason to question the $25,000.00 legal fees. That is a figure unquestionably prepared by the lawyers who acted for her and, as I pointed out to counsel for Ms S Spencer, there is no reason to suppose that an officer of the court would be engaged in some sort of deception in this regard.
I accept that Ms D has advanced $2,000.00 to Ms M Spencer to help her out upon her return from Poland. In the circumstances in which

Ms M Spencer found herself, this evidence is inherently plausible and I see no reason to doubt it was incurred and is to be repaid. Likewise, I accept that Ms M Spencer will have to pay $2,500.00 in respect of her car. Her evidence in this regard was given with conviction and was in my view plausible.
Further, I do not think it is inappropriate in any way for Ms M Spencer to seek to discharge her credit card of almost $9,000.00. As an [part-time worker] and/or Centrelink benefits receiver, she will simply not have very much money. She might well struggle to service a debt of that order at the sort of interest rates that credit cards command. Her wish to discharge that debt in whole is in my view entirely reasonable, and the criticism made of her in this regard was in my view inappropriate.
The arithmetic in Ms M Spencer's affidavit is in my view sound, and she will have about $117,000.00 net once she has discharged her various obligations. She proposes to borrow $190,000.00 to buy her new home, which would leave her with only about $3,000.00 over.
On any view there is likely to be a waiting period before Centrelink is increased following the cessation of maintenance paid by Mr Spencer following their settlement.
Ms M Spencer has no superannuation and no savings, and in my view a buffer of $3,000.00 is not in any way unreasonable. Indeed, I hold very real fears as to Ms M Spencer's capacity ultimately to service her own home loan, but that is in the ultimate a matter for her.

The law

Section 66L of the Family Law Act (“the Act”) requires:
“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.”
The meaning of the word "necessary" has been considered in various authorities, and in FM v FM (1997) FLC 92-738 at 83-947, McGrath R referred to the decision of the Full Court in Tuck v Tuck (1979) 7 Fam LR 492 at [504]:
"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.”
Here I think that it is necessary within the meaning of the Act that the mother contribute if she were reasonably able to do so. The difficulty is that the mother's financial position is extraordinarily parlous. I came to the almost immediate conclusion that the mother would not be able to pay $160.00 per week in the light of her financial circumstances, and the evidence to this effect is plainly overwhelming.
The real issue of course is whether the mother should pay some or all of the capital sums that the daughter Ms S Spencer now seeks.
It is not possible to avoid the conclusion that, whether consciously or otherwise, Ms S Spencer's application – which at the very least would be encouraged by her father – is in part a response to her intense feelings of betrayal and abandonment by her mother.
This is a particularly distressing case. The emotions of the mother and daughter were all too obvious and all too clearly sincerely held. The reality is however that the mother just does not have spare money with which to contribute to her daughter's lifestyle at this time.
Even if I am wrong in this regard, and the figures seem to me to speak for themselves, I should also properly take into consideration the estrangement between the parties. Very unfortunately, at the moment Ms S Spencer is totally estranged from her mother. Her evidence was loaded with criticism and even contained outlandish suggestions such as the statement that the mother's purchase of her new home was not in fact genuine.
While estrangement of this sort does not act as a bar to the making of an adult child maintenance order, it is plainly a relevant consideration.
Furthermore, I have little doubt that the father and/or the elder sister with whom Ms S Spencer lives are more likely than otherwise to give her the extra assistance she needs to meet her needs. Although there was no evidence given before me about the elder sister other than the fact that she has what one might reasonably infer is a secure job with a major employer from whom it is highly possible she might be able to borrow funds at advantageous employee rates, it is clear from the fact that she shares accommodation with her sister that they are at least reasonably close.
I accept the submissions of Ms Stoikovska that her client's position is only capable of being contrasted very unfavourably in financial and emotional terms with that of the daughter and her father. It appears that the entire family in Australia has aligned closely with the father and not with the mother. As I have already found, the mother's employment future prospects are at best uncertain, and in all probability, likely never to produce any substantial income.
It was put that she could easily obtain retail work having extensive experience in the petrol station business. That may be so, but, bearing in mind that I sit in the industrial division of this Court and have some familiarity with wages in the retail sector arising therefrom, I am only the more fortified that whatever sort of work Ms M Spencer is able to obtain is not, unfortunately, ever likely to approach even average weekly earnings.
In all the circumstances, and most particularly bearing in mind

Ms M Spencer's parlous financial position, it would not in my view be necessary within the meaning of the Act to require the mother to contribute by way of either periodic or lump sum maintenance in respect of Ms S Spencer.

Conclusion

As I have already said more than once, this has been a particularly distressing case. Despite the vivid criticisms each made of the other, it was not possible to avoid the impression that both Ms S Spencer and her mother have an equally vivid yearning that their relationship be better than it presently is. This decision may well do little to foment a better outcome, but I will not leave the decision without observing that it is highly likely to be in the best interests of all concerned if some endeavour is made to obtain professional assistance in enabling

Ms S Spencer and Ms M Spencer to work through the very difficult emotions that they have in respect of one another.
It only remains to observe that in the circumstances the only order I will make is that the application be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 4 September 2008