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Wadsworth & Wadsworth [2008] FMCAfam 140 (8 February 2008)

Last Updated: 29 February 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADSWORTH & WADSWORTH

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), 118
Family 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.17A
Federal Court of Australia Act 1976, s.31A
Migration Law Reform Act 2005

Tynan & Tynan (1993) FLC 92-385
Smith; St James; Smith v Wickstein (1996) FLC 92-714
Healey & Healey (2003) FMCAfam 569
Cosgrove & Cosgrove (1996) FLC 92-700
Duncan v Lipscombe Child Care Services Inc. (2006) FCA 458
Re AM (Adult Child Maintenance) [2006] FamCA 351; (2006) FLC 93-262
Tuck & Tuck (1981) FLC 91-021
Henderson & Henderson: Henderson (Intervener) (1989) FLC 92-011

Applicant:
MS S WADSWORTH

Respondents:
MR WADSWORTH AND
MS E WADSWORTH

File number:
PAC 166 of 2007

Judgment of:
Lindsay FM

Hearing date:
8 February 2008

Date of last submission:
8 February 2008

Delivered at:
Adelaide

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

MS S WADSWORTH

Applicant


And


MR WADSWORTH & MS E WADSWORTH

Respondents


REASONS FOR JUDGMENT

  1. 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:
  2. An identical provision applies in relation to children who will turn 18 during the currency of an order.
  3. 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.
  4. 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:
  5. 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.
  6. 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.
  7. 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).
  8. 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.
  9. 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.
  10. 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’:
  11. 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.
  12. 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.
  13. Section 17A of the Federal Magistrates Act now provides in sub-s.(1):
  14. In sub-s.(3) of s.17A this appears:
  15. 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:
  16. 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.
  17. 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.
  18. 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:

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.
  1. 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:
  2. Relevantly, for the purposes of the determination of this point in Re AM (supra), His Honour went on to say in paragraph 132:
  3. His Honour then goes on to say, in paragraph 133, that in the case before him:
  4. 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:
  5. 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.
  6. 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.
  7. 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:
  8. His Honour goes on to say about the equivalent former section:

now s.66L -

permit a discretion but so does the provision in s.66E(1)(d).
  1. That is the passage which is now s.66K(1)(e). His Honour goes on at page 83,389 to say this:
  2. The equivalent section to s.66F is now s.66G, and that provides:
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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:
  10. Tuck & Tuck (1981) FLC 91-021 and Henderson & Henderson: Henderson (Intervener) (1989) FLC 92-011 are referred to. Warnick J goes on:
  11. The statement of the majority in Tuck’s case (supra) is then referred to by His Honour as follows:
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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


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