You are here:
AustLII >>
Databases >>
Federal Magistrates Court of Australia - Family Law >>
2008 >>
[2008] FMCAfam 140
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Download]
[Context] [No Context] [Help]
Wadsworth & Wadsworth [2008] FMCAfam 140 (8 February 2008)
Last Updated: 29 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
FAMILY LAW – Application for adult child
maintenance – application by respondents to summarily dismiss –
adult child
aged thirty-three years – application brought fourteen years
after end of dependant filial relationship – application
for summary
dismissal granted.
|
Family Law Act 1975, ss.66G, 66L, 66K(1)(e),
118Family Law Act 1975 prior to the Family Law Act (Shared Parental
Responsibility) Act 2006, ss.66E(1)(d), 66F, 66H Federal Magistrates
Court Rules 2001, r.13.10 Federal Magistrates Act 1999,
s.17AFederal Court of Australia Act 1976, s.31AMigration Law
Reform Act 2005
|
|
|
MR WADSWORTH AND
MS E WADSWORTH
|
|
Hearing date:
|
8 February 2008
|
|
Date of last submission:
|
8 February 2008
|
|
Delivered on:
|
8 February 2008
|
REPRESENTATION
Counsel for the
Applicant:
|
Self-represented
|
Counsel for the Respondents:
|
Ms M. Dickson
|
Solicitors for the Respondents:
|
FRS Legal
|
ORDERS
(1) Pursuant to Rule 13.10 of the Federal Magistrates
Court Rules 2001, the Amended Application filed on 18 January 2008 do stand
dismissed.
IT IS NOTED that publication of this judgment under the
pseudonym Wadsworth & Wadsworth is approved pursuant to
s.121(9)(g) of the Family Law Act 1975 (Cth).
|
FEDERAL MAGISTRATES COURT OF AUSTRALIA
AT ADELAIDE
|
PAC 166 of 2007
Applicant
And
|
MR WADSWORTH & MS E WADSWORTH
|
Respondents
REASONS FOR JUDGMENT
- Before
me today is an application by the respondents in these proceedings to summarily
determine proceedings. That is obviously a
significant step to take with any
proceeding, and I will come to the legislative and case law requirements in
relation to such an
application in a moment. The application itself that is
before the court is an application for adult child maintenance and it is
made
pursuant to s.66L of the Family Law Act 1975 (the “Act”).
Relevantly, sub-s.(1) of s.66L 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.
- An
identical provision applies in relation to children who will turn 18 during the
currency of an order.
- The
section is very similar to what was formerly s.66H of the Act. It was a matter
of controversy for some time in cases such as
the decision of Moss J in
Tynan & Tynan (1993) FLC 92-385 as to whether or not the other
provisions that regulated child maintenance orders - and they are now all to be
founded under Division
7 of Part VII of the Act - that applied to all children
applied in respect of adult child maintenance applications; that is, whether
the
reference to “children” in s.66L, formerly s.66H, is a reference to
a relationship or to an age.
- However
persuasive Moss J’s views in Tynan (supra) may have
been, they have not met with the approval of the Full Court of the Family Court,
and I think Smith; St James; Smith v Wickstein (1996) FLC 92-714 has put
that particular issue beyond doubt. There is a passage in that judgment, which
is cited by Walters FM in the case of Healey & Healey (2003) FMCAfam
569, which establishes that proposition. His Honour in paragraph 35
of his judgment, where he sets out a passage from Carpenter & Carpenter
(1994) FLC 92-583 that was approved by the Full Court in Smith v
Wickstein (supra), has helpfully updated the citation to refer to the
current legislative provisions:
- In my view
the words “child” and “children” in [Division 7] refer
to relationships rather than ages. If
this were not so then [Section 66L] would
be unnecessary, since there would be no jurisdiction to make an order for the
maintenance
of a person over 18. The purpose of [Section 66L] is to
circumscribe the scope of the jurisdiction in relation to adult children.
It
sets out the limited circumstances in which orders can be made for the
maintenance of children over 18, or orders made during
their minority to be
continued beyond 18. It does not purport to spell out the matters to be taken
into account in considering the
maintenance of adult children. This is because
... the other provisions of [Division 7] apply to such proceedings. It does not
seem likely that the parliament would have set out detailed guidelines for the
maintenance of children under 18 but provided no guidance
at all for children
over that age. Further... there is nothing peculiar or inappropriate about
applying the provisions of the Division
to adult children, despite the fact that
some of them...are obviously inapplicable.
- So
it is beyond doubt now that all of the provisions of Division 7 apply to
proceedings for orders under s.66L. That position was
one which was also
reached by Warnick J in a case called Cosgrove & Cosgrove (1996) FLC
92-700. Ultimately, the view Warnick J expressed as to that matter found
favour with the Full Court and with other subsequent single-instance
judgments.
- The
application then is pursuant to s.66L. It has been amended, and I deal with the
summary dismissal application upon the basis
that the application is that that
is set forth in the Amended Application filed on 18 January 2008.
- The
applicant is 33 years of age. The Amended Application seeks the following
orders, and I will summarise them. It seeks payment
of $2,000 weekly in cash
indexed; it seeks payment of the applicant’s costs of up to 20,000
kilometres of domestic air travel
annually; it seeks payment of costs up to
100,000 kilometres of international air travel annually; it seeks that the
respondents
pay for the health insurance cover, including extras, at the highest
tabled scale of cover; it seeks payment of moneys which will
enable the
applicant to be examined on an urgent basis by a dentist and then seeks payment
of a range of orthodontic, what is described
as periodontic and endodontic
treatments, including for cosmetic purposes; it seeks payment of all of the
expenses associated with
the removal of certain genital hair to prepare for
sexual reassignment surgery, and facial hair, upon the basis that such treatment
is to commence forthwith; it seeks the payment of costs of a procedure known as
augmentation mammoplasty, of sexual reassignment
surgery, including orchiectomy
and vaginoplasty, and the payment of travel and similar costs associated with
those surgical procedures;
it seeks payment upon the applicant receiving an
offer of a place of study in a tertiary institution, of costs of core textbooks
and $250 per enrolled subject; it seeks the provision of a motor vehicle, and
there are highly specific provisions in the paragraph
of the application that
relate to the kind of motor vehicle that is to be provided; it seeks the
transfer of a Volvo motor vehicle,
in paragraph 10; and it seeks the costs
of the applicant renting a dwelling of luxury standard or, in the alternative,
the purchase
of a dwelling, with highly specific requirements as to location and
fixtures and fittings (eg. rugs of a Middle-Eastern origin).
- In
determining this application for summary dismissal, I have relied upon the
Amended Application. I have also relied upon the affidavit
material that has
been filed by the applicant, including but not limited to her initial affidavit
filed on 12 January 2007, and an
affidavit of one Dr Z, psychologist, filed
on 20 July 2007. I have also had regard to certain aspects of an affidavit
filed by one
of the respondents,
Mr Wadsworth, on 12 February
2007.
- I
say “certain aspects” because an application of this nature proceeds
upon the basis of certain assumptions being made
about whether or not certain
contentions that are made by the applicant will be made out. It certainly does
not proceed upon the
basis of me making assumptions as to the fate of any
particular aspect of the evidence. It is only safe and it is only appropriate
in an application of this nature to proceed upon the basis either of facts that
are agreed or facts that it is plainly apparent are
going to be established in
the evidence upon the basis of the affidavit material that has been filed; that
is, it is appropriate
to proceed only upon the basis of reference to facts which
are, in the sense I have just described, non-controversial.
- The
power to summarily dismiss a proceeding is set forth in the Federal
Magistrates Court Rules 2001. In particular, Rule 13.10 provides,
under the heading of ‘Disposal by summary
dismissal’:
- The Court
may order that a proceeding be stayed, or dismissed generally or in relation to
any claim for relief in the proceeding,
if the Court is satisfied
that:
- (a) the
party prosecuting the proceeding or claim for relief has no reasonable prospect
of successfully prosecuting the proceeding
or claim; or
- (b) the
proceeding or claim for relief is frivolous or vexatious; or
- (c) the
proceeding or claim for relief is an abuse of process of the Court.
- There
is a reference then to additional powers in relation to frivolous or vexatious
proceedings, which are set out in s.118 of the
Act, but I did not understand the
application to be relying upon that legislative provision.
- The
Rule to which I have referred has its legislative basis in certain amendments
that were made to the Federal Magistrates Act 1999 under the Migration
Law Reform Act 2005, which inserted a s.17A into the Federal
Magistrates Act, which provision has had consequences for the determination
not only of migration applications in this court but in relation to all
of the
causes in respect of which this court exercises jurisdiction.
- Section
17A of the Federal Magistrates Act now provides in
sub-s.(1):
- The Federal
Magistrates Court may give judgment for one party against another in relation to
the whole or any part of a proceeding
if:
- (a) the
first party is prosecuting the proceeding or that part of the proceeding;
and
- (b) the
Court is satisfied that the other party has no reasonable prospect of
successfully defending the proceeding or that part
of the proceeding.
- In
sub-s.(3) of s.17A this appears:
- For the
purposes of this section, a defence or a proceeding or part of a proceeding need
not be:
- (a)
hopeless; or
- (b) bound
to fail;
- for it to
have no reasonable prospect of success.
- Section
17A is identical in its terms to s.31A of the Federal Court of Australia Act
1976, which was introduced into that Act at the same time. Heerey J, in the
case of Duncan v Lipscombe Child Care Services Inc (2006) FCA 458, had
this to say at paragraph 6 of his judgment in reference to s.31A of the
Federal Court of Australia Act:
- Plainly
s.31A was introduced to establish a lower standard for strikeouts (either of
claims or defences) than that previously laid down by the
High Court’s
decisions in Dey v Victorian Railways Commissioners [1940] HCA 1; (1948) 78 CLR
62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA
69; (1964) 112 CLR 125 at 130, namely that the allegations are “so clearly
untenable that [they] cannot possibly succeed”.
- So
the application will only be summarily dismissed if the Court is satisfied that
the applicant has no reasonable prospect of successfully
prosecuting the claim
but, in considering such an application, I do not have to be satisfied that the
claim is hopeless or bound
to fail for it to have no reasonable prospect of
success.
- As
I have indicated, the proceeding is one brought pursuant to s.66L and, as I have
also indicated, all of the other provisions of
Division 7, under the
heading ‘Child Maintenance Orders’, apply in respect of all such
applications.
- A
question arises as to whether the Court, in considering an application for adult
child maintenance, has a discretion in relation
to the exercise of the
jurisdiction in a particular case; that is, whether there is a discretion not to
exercise the adult child
maintenance jurisdiction in a particular case. That
topic was itself the subject of discussion by Carmody J in the case of
Re AM (Adult Child Maintenance) [2006] FamCA 351; (2006) FLC 93-262, where His Honour
had this to say at paragraph 126:
- None of the
parties doubt the existence of the discretion and all agree that it has to be
exercised at some point in the process.
There is a deal of disagreement,
however, about the width of the discretion and whether it derives from the
language in s.66G, the
exceptional nature of s.66L itself, or
par.66K(1)(e).
His Honour goes on at paragraph
127:
Warnick J identified a number of relevant discretionary factors in Cosgrove.
They include: (a) the filial relationship between the
applicant child and the
liable parties; (b) whether the application amounts to a resurrection of a
dependency that had previously
been broken; (c) the period of
‘independence’; (d) any delay in making the application; and (e)
other assistance or benefits
the child is entitled to or has received in the
past.
- His
Honour goes on to refer to a decision of Carter J in B & B [1998]
FamCA 1713 and has this to say at paragraphs 130 and 131:
- Whether or
not these sorts of considerations can have a disentitling or disqualifying
effect is unclear.
- Warnick J
in Cosgrove and Barry J in W & W [[2002] FamCA 1143] suggest they can.
There may, indeed, be a case where, for example,
the date of the disability or
poor filial relations may justify a court to refrain from making an order of
adult child maintenance
even though it is satisfied that the threshold
requirements in s.66L have been met. However, this is not one of
them.
- Relevantly,
for the purposes of the determination of this point in Re AM
(supra), His Honour went on to say in paragraph 132:
- The belated
onset of the applicant’s disability does not entitle her, in my view,
because of its comparatively close proximity
to the date of her majority.
Similarly, the period of her independence was too short-lived to defeat her
claim. Delay is not a
significant feature of the case
either.
- His
Honour then goes on to say, in paragraph 133, that in the case before
him:
- ... the
main discretionary matters to be taken into account are the filial relationship
and the indeterminate duration of the periodic
orders sought
....
- There
is a discussion of earlier cases involving the importance of the filial
relationship, as to whether it existed or not, which
goes in paragraphs 134
to 141, and ultimately in that case His Honour finds this at
141:
- Adopting
the approach favoured by Asche SJ in Oliver [(1977) FLC 90-227] and Warnick J in
Cosgrove, the relationship evidence in
this case may limit the level of any
financial support the first respondent is liable to provide but does not reduce
it to nil.
- I
have abbreviated that discussion, but it is clear that Carmody J regards Warnick
J in Cosgrove (supra) as limiting the effect of the filial
relationship issue to a question of the level of financial support, not as to
whether the court
should decline to exercise the jurisdiction at all.
- His
Honour then goes on to discuss the other discretionary matter that paragraph 133
refers to, which is the indeterminate duration
of the periodic order, and
ultimately found that that also was not a disqualifying factor.
- That
is a useful recent perspective on the issues raised by Warnick J in
Cosgrove. As I say, Cosgrove was a case that was expressly
approved by the Full Court in Smith; St James; Smith v Wickstein (supra).
Interestingly in Cosgrove, Warnick J finds the existence of the
discretion as something that is to be inferred from certain legislative
provisions. In particular,
he relies upon what was then s.66E(1)(d) of the Act.
That is now section 66K(1)(e), and that provides that one of the matters to
be
taken into account in determining contribution “that should be made by
a party”, et cetera, is:
- Any special
circumstances which, if not taken into account in the particular case, would
result in injustice or undue hardship to
any person.
- His
Honour goes on to say about the equivalent former section:
- In my view,
not only does the wording of s.66H -
now s.66L -
permit a discretion but so does the provision in
s.66E(1)(d).
- That
is the passage which is now s.66K(1)(e). His Honour goes on at page 83,389
to say this:
- Conclusively
as to the existence of the discretion, however, is s.66F. Section 66F of the
Act then read as follows: “In proceedings
in relation to the maintenance
of a child, the court may, subject to this division, make such order in relation
to the maintenance
of the child as is proper”.
- The
equivalent section to s.66F is now s.66G, and that provides:
- In
proceedings for a child maintenance order, the court may, subject to this
Division ..., make such child maintenance order as it
thinks
proper.
- The
wording is identical but the section is to the same general effect, and I
readily infer from s.66G the same permission of a discretion
that Warnick J
identified in Cosgrove in s.66F.
- I
do not think there is any doubt but that there is a discretion to decline to
exercise the jurisdiction. The question is whether
the facts of this particular
case warrant us doing so and, in particular, whether we are warranted in taking
that course of action
having regard to the provisions of the Federal
Magistrates Court Rules and of s.17A of the Federal Magistrates Act
to which I have referred.
- The
matters that are relevant to the question of the exercise of the discretion in
this case are, I think, reasonably plain. As I
say, we have got to be very
careful to separate out any factual issues that are the subject of controversy.
The affidavit of Mr
Wadsworth, as I say, is a very detailed affidavit and it
deals with all of the affidavits that have been filed by the applicant,
and it
is plain that there are a great many factual matters that are in dispute.
- What
is not in dispute, though - and this can be ascertained from reading the
applicant’s affidavits and from her responses
to the various matters that
have been put to her by the court today - are the following circumstances:
firstly, that the applicant
has been financially independent of the respondents
since about 1993. That financial independence since that time has been
accompanied
with the physical separation of the parties. The number of
occasions and the nature of the interaction alleged by the applicant
with her
parents since that time that are referred to in the affidavit material do not
cut across the clear inference to be drawn,
on the basis of all of the factual
material made available to the court, that a financial relationship ceased in
1993.
- The
period during which the applicant has been financially independent from her
parents includes a period of her own marriage, so
that means that the
application which was instituted in this court in January of 2007 is brought
some fourteen years after the cessation
of a financial relationship between the
parties. More importantly, it means that the application, to use the paraphrase
expression
adopted by Carmody J in Re AM (supra), is seeking
the resurrection of a dependency that had been previously broken, and it was a
dependency that had been broken some fourteen
years before the application
was brought.
- In
terms of the delay in making the application, I think relevantly in this case it
is not simply the delay since the absence of any
financial interdependence
between the parties; it is also the delay which has occurred since, on the
applicant’s own account,
she was provided with medical advice that
suggested that the sort of medical procedures which form such a significant part
of her
application were recommended to her as being required, and that, on the
basis of the documentary material that has been put before
me, was sometime in
1995. So the application, insofar as it relates to those medical procedures -
and, as I say, they are a very
significant part of the application that is made
by the applicant - relates to a medical procedure that has been the subject of
medical
advice for a period of eleven or twelve years prior to the filing of the
application. That, in the circumstances of such a case,
is in my view a
significant delay.
- It
must be borne in mind, of course, that the application under s.66L is for
provision of maintenance which, in the language of the
section, “is
necessary to enable the completion of a course of education or because of a
mental or physical disability of the child”. The expression
“necessary” in the context of these proceedings was the
subject of considerable discussion by Warnick J in Cosgrove (supra),
and I refer to the discussion at page 83-389:
- The word
“necessary” does not mean “absolutely essential” but
involves a consideration of “reasonableness”.
This follows from the
statements [in earlier cases].
- Tuck
& Tuck (1981) FLC 91-021 and Henderson & Henderson: Henderson
(Intervener) (1989) FLC 92-011 are referred to. Warnick J goes
on:
- Of the
various statements in those cases, founding that deduction, I prefer that of
Strauss J in Tuck’s case.
- About the
words “necessary to enable the child to complete his education ...”,
His Honour simply said:
- “I am
of the opinion that, in this context, provision of maintenance for a child over
the age 18 years is “necessary”,
if the child reasonably needs
support to enable the child to complete his or her education ....”
- The
statement of the majority in Tuck’s case (supra) is then
referred to by His Honour as follows:
- “Necessary”
in this context means that the maintenance is needed by the child and it is
reasonable to require the parent
to contribute, having regard to the
parties’ financial circumstances and other relevant
factors.
- So
we have got to be careful before we import too much significance into the use of
that expression “necessary”, but even bearing in mind that
important reservation, the application seems to me to be a highly speculative
application.
- Insofar
as the application relates to the need for the provision of financial assistance
- and significant financial assistance -
for an operative procedure, it seems to
me to be a highly speculative exercise to suggest that a procedure that was
recommended in
1995 is, at the time of the making of an application in January
2007, a procedure for which the provision of money to enable such
a procedure to
be carried out is “necessary” because of a mental or physical
disability of the child. That, to me, seems
to be a very significant aspect to
consider in this matter, and especially so given the nature of the evidence that
is sought to
be adduced in respect of the mental or physical disability.
- In
terms of the case to be presented on behalf of the applicant, there is an
affidavit provided by a psychologist who provided a report.
I have referred to
the affidavit Dr Z, and that affidavit canvasses a number of these issues. It
looks as if Dr Z himself did not
have access to the medical opinion that was
provided to the applicant in 1995 in respect of transgender reassignment. It
looks as
if Dr Z was simply relying upon what the applicant informed him of in
relation to that topic. That is the inference I draw from
the second paragraph
on page 5 of Dr Z’s report.
- The
thrust of the report is something that I put to the applicant during her
submissions this morning, which was that it was very
far from being a report
which substantiated the assertion by the applicant that her current financial
difficulties - and in particular
her inability to find employment since she was
last in employment in about 2001 - was a function of either the transgender
issues
or of any depressive or other psychological disorder.
- It
looks, from the second paragraph on page 6 of Dr Z’s report, as
though those contentions were matters that he regarded very
much in issue. I
agree with the applicant that there are some ambiguities associated with Dr
Z’s report, but having waited,
as I say, for a period of eleven or twelve
years following the receipt of the medical advice in respect of the transgender
reassignment,
it is, to say the least, surprising that the only opinion from a
medically or psychologically qualified person that the applicant
is able to
point to is this report that, on its face, offers her very little support
indeed.
- The
applicant’s answer to that is to say: “Look, I brought an
application”. Indeed, there was an application returnable before the
court today. I suppose she would also say that, as part and parcel of the
application for final orders, there is a suggestion that money should be
provided by the respondents so that this issue itself can
be the subject of
expert opinion. However, when I bear in mind all that the cases tell me, I have
to bear in mind in terms of trying
to place this application in the context of
reasonableness, given what we know of the lack of financial and other
interdependence
between the parties.
- It
is drawing a very long bow indeed, given the delay - and, I repeat, the delay
not only since the receipt of the medical advice
but the delay since the demise
of financial dependency of the applicant upon the respondents - so we are
dealing respectively with
periods of twelve years and fourteen years. In that
context, it is an ambitious application indeed to expect the respondents, whilst
the very ability of the court to entertain the application is itself in doubt,
to stump up funds to see whether or not an important
aspect of the
applicant’s claim is even arguable.
- Doing
the best I can to assess the reasonableness of the application against the
background of all the matters I have referred to,
I would regard that as an
unreasonable imposition to make upon the respondents to the application made in
these circumstances.
- The
other factors arising in this matter which it seems to me are highly relevant to
the exercise of the discretion include the very
age of the applicant: 33, going
on 34, years of age. That is not in itself a disqualifying feature but a matter
that, together with
the gaps between receipt of medical advice and institution
of proceedings, between cessation of dependency and institution of proceedings,
again has to go to the reasonableness of the application.
- Another
matter that is capable of relevance is this question of the lack of a filial
relationship. I think it is very important to
be cautious about that aspect.
As Carmody J pointed out in that case of Re AM (supra), even if
we do rely upon the judgment, as we do, of Warnick J in Cosgrove
(supra), His Honour in that case only saw that question as affecting matters
relating to how much and not whether the discretion should be
exercised at all.
The other aspect of reliance on that aspect of the matter is that it is such a
complex issue to determine, first
of all, what the nature of the filial
relationship is but, secondly, to attribute responsibility in the context of a
breakdown in
family relations is a very vexed issue, and there is so much that
is in dispute between the applicant and the respondents on that
topic that, in
all of the circumstances, I do not think that issue is a matter to which any
significant weight should be given in
the context of the adjudication of this
application.
- I
think also to be taken into account in the context of reasonableness is the
breadth of the application. One looks at the some of
the orders sought by the
applicant and considers, first, the need for the payment to be necessary on
account of a completion of education
- and that really forms a very minor,
almost negligible, aspect of the adjudication of the matter - and the need for
the provision
of the maintenance to be necessary because of a mental or physical
disability. Against that legislative test, some of the orders
sought
(especially in relation to housing) have a strong element of the far-fetched and
impertinent about them.
- As
I say, the question of education is referred to in one aspect of the
application. It is not a matter that is dealt with in any
great detail in the
affidavits. There is little in the material to indicate that the payment of
maintenance is required to enable
the completion of a course of education, and
matters relating to the hiatus between the dates upon which the applicant was
previously
engaged in a course of education and now are also relevant to the
exercise of the discretion.
- Taking
all of those matters into account, it seems to me that there is no reasonable
prospect for success of this application. To
use the language of Rule 13.10,
the claim for relief pursuant to s.66L, in my view, has no reasonable prospect
of being successfully
prosecuted.
- Even
were the test that which was previously enunciated by the High Court in those
two decisions to which I referred earlier, it seems
to me the facts and
circumstances of this case are such that, in assessing the prospects of success
of the applicant’s claim,
it would be appropriate to categorise them as
hopeless and bound to fail.
- For
those reasons, and pursuant to Rule 13.08 of the Rules of this Court, the
Amended Application filed on 18 January 2008 is dismissed.
I
certify that the preceding fifty-two (52) paragraphs are a true copy of the
reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 22 February 2008
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCAfam/2008/140.html