Family
Law Update
Volume 20, August, 2008
In this issue:
Recent Cases: Adult Child Maintenance
Recent Cases: Adult Child Maintenance
Case Note: Re AM [2006] FamCA 351
Adult Child Maintenance
The case of Re AM [2006] FamCA 351 concerned an application by
a 28 year old woman for adult child maintenance. The Applicant
sought that her father, the first respondent, pay period and lump
sum maintenance pursuant to s 66L(1)(b) of the Family Law Act
1975.
Facts
The facts of the matter were as follows:
• Father (first respondent) and mother (second respondent) married
in 1971 and divorced in 1983.
• The child (applicant) born in 1977 and lived with the mother
following her parent’s separation.
• In 1998, aged 21, the applicant was diagnosed with a degenerative
disease which virtually destroyed her capacity to undertake employment
and resulted in the requirement of significant ongoing care.
• The applicant was unmarried and lived by herself.
• The applicant sought the first respondent make the following
payments:
o A lump sum maintenance payment of $149,053 for alterations to
her home to enable her to continue living there.
o Period maintenance of $2,256 per week to meet ongoing nursing
costs and ordinary living expenses.
Since the end of 2003, the father had been making voluntary payments
to the Applicant of $1,000.00 per month. The father joined the
mother to the proceedings.
Mother’s position
The mother acknowledged that she had an ongoing responsibility
regarding her daughter and offered to pay up to $1,000.00 per
week and a lump sum payment of $100,000.00.
Father’s position
The father argued that he was not liable on the basis that the
disability manifested itself after the Applicant reached the age
of 18 years and therefore it manifest itself when he no longer
had a legal duty to support the child. He argued that the disability
needed to be carried over from childhood in order for there to
be a finding that there was a liability to pay adult child maintenance.
Additionally, the father argued that he was not required to pay
maintenance on the basis that the link of dependency had been
broken when the child reached the age 18 or alternative when she
ceased living with her parents and began living by herself independently.
Both of these events happened prior to the onset of her disability.
Legislation
The relevant sections of the Family Law Act 1975 which provide
the framework for decisions on adult child maintenance are contained
in Division 7 of the Act. Section 66B provides that the object
of the Division is to ensure that children receive a proper level
of financial support from their parents whilst s66G provides the
Court with the power to make such an order for maintenance as
it deems proper. The approach to take when ascertaining the maintenance
payable in set out in s66H. The matters to be taken into consideration
when determining what level of support is necessary and what level
of contribution to be made by the parent based on their capacity
to pay are details in sections 66J and 66K. These relevant factors
include the age, financial resources, special needs and capacity
of the child to obtain gainful employment and earn a wage, whilst
disregarding any pension the child is eligible to receive and
the parent’s income earning capacity, their financial responsibilities
to care for other parties and any other special circumstance.
Vital to the Application in Re: AM is section 66L (1) (b) which
provides the Court with the ability to make a maintenance order
for a child over the age of 18 where the Court is satisfied that
it is necessary because of a mental or physical disability of
the child.
The effect of the legislation is that an Application for adult
child maintenance is to be decided on the same basis, taking into
consideration the same factors as an Application prior to the
child reaching the age of majority. In Re AM the Court acknowledged
that the Application by the child was to be dealt with as if she
had not yet reached 18.
Outcome
The ultimate issue for the Court to decide in this case was whether
it mattered when the disability manifested itself.
The Court held that there is no express or implied age limit
under the Family Law Act 1975, and that maintenance is not limited
to dependent disabled adult children. The Court has a residual
discretion for an adult child maintenance claim when all the statutory
preconditions are satisfied. Justice Carmody found that section
66L does not expressly provide for the requirement of a nexus
between the disability and the dependency prior to a finding that
a parent should be liable for adult child maintenance.
Despite the ultimate finding that the father was liable to pay
maintenance, despite the age of manifestation of the disability
and the period of independent, the Court found that in some cases,
the level of dependency and duration of dependency may be relevant
to the successfulness of a claim for maintenance. This may be
more pertinent when the child is seeking adult child maintenance
pursuant to s66L (1) (a) to complete ones education that it is
for a child with a disability. Furthermore, in this case the Court
held that there was a relatively close proximity between the age
of majority and the onset of the disability and a short period
of independence which was insufficient to have a disentitling
effect.
Of further relevance to the making of the decision was the nature
of the child’s relationship with each parent. The child had a
strained relationship with her father and a good relationship
with her mother. The court held that whilst, in some cases “poor
filial relations” may have a disentitling effect, in this case
they did not. However the poor relationship between father and
child coupled with the willingness of the mother to pay maintenance
was taken into account when determining quantum and contribution.
Both the mother and father (joint Respondents) were ordered to
pay periodic maintenance for a period of 5 years until 2011. Despite
the preference for finality in accordance with section 81, the
Court held that such an order was not a suitable option on the
facts before it considering the age of the parties and the uncertain
nature of the child’s future needs. The necessary periodic payment
was fixed at $1,500.00 per week. The mother was to pay $975.00
and the father $525.00 per week.
One final point to note is that the Court made specific mention
of the significant legal fees which all three parties had incurred
to litigate the matter. The estimated total costs were in excess
of $300,000.00 and His Honour specifically commented:
I cannot help noticing that the total estimated legal costs and
disbursements provided in accordance with the Rules by the parties
shows that the proceedings have cost each of the three parties
in excess of $100,000. Half of that total amount would have been
enough for the claimed modifications to the applicant's house.
Re AM provides thorough guidance of the Courts procedure for
determining applications for the payment of adult child maintenance
in cases when the disability has clearly manifest itself after
the age of majority. Practitioners ought to advise their clients
to be mindful of the significant costs of litigation and the likely
outcome of contested hearings following Re AM.
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