Timms and Yates

[2016] FCCA 1432

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIMMS & YATES [2016] FCCA 1432

Catchwords:
FAMILY LAW – Adult child maintenance application – evidence of the child’s capacity to work while studying unclear – whether maintenance is necessary to enable child to complete education.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS TIMMS

Respondent: MR YATES

File Number: MLC 9805 of 2015

Judgment of: Judge McNab

Hearing date: 2 June 2016

Date of Last Submission: 2 June 2016

Delivered at: Melbourne

Delivered on: 15 June 2016

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the Respondent: Self Represented

ORDERS

1. The applicant’s application filed 19 October 2015 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9805 of 2015

MS TIMMS

Applicant

And

MR YATES

Respondent

REASONS FOR JUDGMENT

1. By an application dated 19 October 2015, the applicant mother has sought child maintenance for a child over the age of 18 years of age in respect of her son, X born (omitted) 1996 (“X”).  She seeks maintenance in respect of X in the sum of $180 per week. 

2. The respondent father has opposed the application on the grounds that:

   a)he has no capacity to pay any maintenance; and

   b)that the child has no need for maintenance. 

An outline of the evidence

1. The applicant filed affidavits sworn 14 September 2015 and 24 May 2016.

2. The respondent swore an affidavit dated 25 February 2016.  Ms M, an accountant of (omitted), gave evidence on behalf of the respondent in relation to the books of account relating to the respondent that had been subpoenaed by the applicant.

3. Each party was self-represented at the hearing and each gave evidence and cross-examined the other.  Ms M gave evidence and was cross-examined by the applicant.

The applicant’s evidence

1. The applicant’s evidence disclosed that: the child, X, is 20 years of age, having been born on (omitted) 1996.

2. That she has two older children from another marriage aged 25 and 27 respectively.

3. X has from 2016 studied full-time for a (qualifications omitted) at (omitted) University.  He commenced his studies at (omitted) University in 2015, studying (course omitted) and the transcript of his results show that he is doing well in his studies.  In the course of evidence at the hearing, the applicant stated that X intends to transfer to (omitted) University in 2017 to continue his studies in (qualifications omitted). 

4. The applicant deposed that X suffers from “residual ADHD symptoms with anxiety symptoms” and concluded that he would be “unable to work to support himself and to go to university full-time because he takes medication to help him concentrate and organise his thoughts in his very demanding course”.  The medical certificate attached to the affidavit sworn 14 September 2015, being attachment T2 to that affidavit and dated 28 October 2014, makes reference to X and to injuries to his left wrist sustained in January 2013. 

5. The medical report from his treating medical practitioner states:

   This young man was diagnosed with attention deficit disorder, ADD, in February, 2001.  This causes impaired concentration.  He sustained injuries to his left hand in October 2012, a fractured fifth metacaropal.

   He sustained a fractured left wrist in January 2013.  The latter two injuries cause him pain, discomfort, especially while he tries to write.

   He has been found to have anxiety and depression this year and has been put on Lovan tablets to help.  He is also on Ritalin to treat his ADD.  Also takes Temazepam at night to assist with sleep.

   These conditions would impede his learning capacity, impair his concentration and limit his ability to write for long (as he is left handed).

   It would be advisable for him to have rest breaks as required, extra writing time. Preferably the use of a computer would make it easier.

6. A medical report of Mr R a consultant paediatrician who has treated X since February 2001 dated 10 August 2010 (being annexure T1 to the affidavit of the Applicant sworn 24 May 2016) was in evidence.  That report noted that X had qualified for special consideration through the special entry scheme and was accepted in (course omitted) at (omitted) University in 2015.The report also states that:

   “He is struggling somewhat with the high demands of first year (course omitted) at (omitted) city campus.  He applied to transfer to (course omitted) at (omitted) via a mid-year application.

   X really has his hands full and at the present time is unable to work and go to university full –time.  The letter is to attest to the pressure that he is under and his on-going ADHD symptoms which contribute to academic difficulties.”

7. The applicant deposed, in relation to what she understood the financial position of the respondent to be, with a summary at paragraph 20 of the affidavit of 14 September 2015, that he has the capacity to pay $180 per week.  She also deposed that she is in receipt of a disability pension in the sum of $400 per week and has no capacity to pay child maintenance towards X.

8. In an answering affidavit of the applicant dated 24 May 2016, the applicant deposed that the maintenance is necessary to enable the child to complete his education and because a health condition affects the child and she made reference to documents that had been produced on subpoena and said that that established that the respondent had a personal annual income of $91,385 per annum. 

The respondent’s evidence

1. The respondent swore an affidavit dated 25 February 2016 in which he deposed in summary that:

   a)the applicant has access to significant financial resources sufficient to provide for X;

   b)that he agreed that his son has been diagnosed with ADHD but believed that the condition had been managed effectively by way of professional treatment and medication; and

   c)that the treatment that he had received had proven effective, as was reflected in his past academic achievements and the results which were referred to in the affidavit of the applicant.

2. In relation to his financial position in summary he gave evidence that his financial position was poor, that he had net assets of about $43,755.

3. Ms M gave evidence and produced financial records to the Court.  In substance her evidence was that the financial position of the respondent was poor and that he owed substantial amounts of money to utility companies and he had a weekly shortfall of about $333 after expenses were paid.  She also stated that the business operated by the respondent, which is a (omitted) business, had suffered substantial bad debts and that the net profit before tax was in the sum of $25,494.  She made reference to the fact that he had to finance his day-to-day living through substantial credit card debts.

The course of the hearing

1. The course of the hearing was somewhat chaotic due to the personalities of each of the applicant and the respondent who sought to engage in direct argument through the witness box.  The respondent sought to cross-examine the applicant to the effect that she was part of a family who had successfully engaged in the purchase of property over a long period of time and that she had access to considerable funds through her family.  The applicant gave evidence that she had not been working for about 10 years and that she had recently moved to her current address.

2. She did comment in the course of her oral evidence that her two elder children were in the happy circumstance of being provided for by a wealthy grandmother but was adamant that although X had lived with his older siblings for the whole of his life, that grandmother was not paying any monies in order to assist X. 

3. Initially, in her evidence the applicant stated that X had not been working but in the course of cross-examination she admitted that he had done a course to qualify as a (occupation omitted) and that he was working as a (occupation omitted) at (employer omitted) on a casual basis.  She gave evidence that he is a casual employee at (employer omitted) but did not think that he worked more than five to six hours per week. 

4. The respondent gave evidence at the hearing that his business as a (business omitted) was the subject of substantial bad debt and was not travelling well.  He stated he was substantially in debt in relation to credit cards and the figures that had been provided by his accountant, which showed a net profit before income tax of $25,494.00 were correct.  He denied he was in receipt of any monies as a result of renting his home.  In relation to X, he said that he last saw his son at around Christmas time in 2015 or about January 2016.  He said that he spoke to his son who mentioned that he was working at (employer omitted) and that he also worked (occupation omitted).  He also thought that X was skilled in (employment omitted) and was able to work.  He also advanced the view in the course of cross-examination that he believed that the applicant’s family were people of substantial wealth and that X was well provided for by them.

Conclusion

1. The terms of section 66L(1) of the Family Law Act provide that:

   A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day 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.

2. The issue that I must determine is whether the physical disability of the child is such that maintenance is required in order for the child to complete his education.  If the Court is not so satisfied the Court must not make an order.

Findings of fact

1. In relation to the capacity of the child to obtain income, the documents tendered show that he is in receipt of a (qualifications omitted) in (omitted) and that he has a certificate in relation to the (qualifications omitted).

2. The evidence of the applicant disclosed that X was working on a casual basis and that he was capable of working whilst he was studying. The evidence disclosed that he had been attending university since 2015 and that he intended to continue with his studies and that he has achieved good results in his studies.  I note that he has been studying since he turned 18 without maintenance being paid by his father

3. No evidence was produced from or on behalf of X in respect of his earnings, his capacity to earn or his expenditure to support a finding that the provision of maintenance is necessary for him to continue his studies.

4. I found the evidence of the applicant in the witness box in relation to the work performed by the X and his income form such work to be unsatisfactory. Initially she stated that X was not working then gave evidence that he had worked for a limited period and that he was working casually.  No evidence was provided of his earnings.

5. The applicant emphasised that X was studying full time and that he could not work and study full time. The evidence does not support a finding that X could not study part time and obtain work in order to pay money towards supporting himself while he studies.

6. In conclusion, I find that there is insufficient evidence that the provision of maintenance by the respondent is necessary to:

   a)enable the child to complete his or her education; or

   b)because of a mental or physical disability of the child.

7. In relation to the competing positions about the capacity of each party to pay maintenance, I reach no conclusion on the basis that such a finding is unnecessary given my conclusion that the applicant has not established that adult child maintenance is necessary.

8. In those circumstances, the application shall be dismissed and the Court will make orders accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 15 June 2016