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.
For further information on these or other family law topics please contact:
Tony Phillips
Accredited Family Law Specialist
Ph: 07 3007 9898
Email: tonyp@murdochs.com.au
