Abrahams and Simm

[2014] FCCA 67

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABRAHAMS & SIMM [2014] FCCA 67

Catchwords:
FAMILY LAW – Application for childbirth maintenance.

Legislation:

Family Law Act 1975, ss.4(1), 67B(1)(a) & (b), 67G

BM & DA [2007] FMCAfam 770
Hampton & Temple [2012] FamCA 681
Harper v Pint [2011] FamCA 771
MJ & JDB & Anor [2006] FamCA 419

Applicant: MS ABRAHAMS

Respondent: MR SIMM

File Number: CAC 764 of 2013

Judgment of: Judge Neville

Hearing date: 12 September 2013

Date of Last Submission: 12 September 2013

Delivered at: Canberra

Delivered on: 31 January 2014

REPRESENTATION

Solicitor/Advocate for the Applicant: Mrs C Naidu

Solicitors for the Applicant: Claire Naidu & Co, Canberra

Solicitor/Advocate for the Respondent: Mr D Bainbridge

Solicitors for the Respondent: Bainbridge Legal, Blacktown, NSW

ORDERS

1. The Respondent is to pay to the Applicant $7,000.00 within 30 days of the date of these orders;

2. The Respondent is to pay to the Applicant a further $7,000.00 within 60 days of the date of these orders;

3. Each party shall pay their own costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 764 of 2013

MS ABRAHAMS

Applicant

And

MR SIMM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for “childbirth maintenance”, pursuant to s.67B of the Family Law Act1975 (“the Act”).  It is brought by the Mother in relation to the child of the parties, X, who was born on (omitted) 2012.

2. It was agreed that it would be dealt with by way of affidavit evidence, and written and oral submissions.  This is also to say that, given the very narrow nature of the application, there was no cross-examination of either of the parties.

3. The Respondent Father does not [now] dispute the paternity of his daughter.  Nor is there dispute that the application, which was filed on 30^th May 2013, was brought within the 12 month period prescribed by s.67G of the Act. It is also not disputed that the parties are not, and have never been, married.

4. The Applicant Mother seeks, in total, the sum of $27,061. That figure is comprised of $15,610, which is claimed under s.67B(a) for the maintenance of the Mother for the childbirth maintenance period; and $11,451, which is claimed under s.67B(b), which sum relates to “the Mother’s reasonable medical expenses in relation to the pregnancy and birth.” Having regard to payments made by the Father that total $2200 (as claimed by the Mother), the Mother seeks payment from him of $23,474.

5. The Respondent Father seeks orders that he pay the Mother the sum of $7000.00 by way of “maintenance and expenses” pursuant to s.67B, and that she pay his costs of the application.

6. For the reasons that follow, the Father shall pay to the Mother the sum of $14,000 (the assessment and division of which is set out later in these reasons) pursuant to s.67B of the Act. $7000 of that sum is to be paid within 30 days of the date of these orders; the remaining $7000 is to be paid within 60 days of the date of these orders. Each party shall pay their own costs.

7. The reasons proceed as follows: (a) statutory provisions; (b) submissions; (c) discussion and resolution.

A.         Statutory Provisions

1. Section 67B relevantly provides:

   The father of a child who is not married to the child’s mother is, subject to this Division, liable to make a proper contribution towards:

   (a)  the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and

   (b)  the mother’s reasonable medical expenses in relation to the pregnancy and birth;

2. Section 67C details the matters to which the Court must have regard in assessing such applications.  That section provides:

   (1)  In proceedings under this Subdivision in relation to the birth of a child, the court must, in determining the contribution that should be made by the father of the child, take into account the following matters only:

   (a)  the income, earning capacity, property and financial resources of the mother and the father of the child;

   (b)  commitments of each of those persons that are necessary to enable the person to support:

   (i)  himself or herself; or

   (ii)  any other child or another person that the person has a duty to maintain;

   (c)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   (2)  In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income.

   (3)  In taking into account the income, earning capacity, property and financial resources of the mother, the court must disregard any entitlement of the mother to an income tested pension, allowance or benefit.

   (4)  Subsections (2) and (3) do not limit the matters to which the court may have regard in taking into account matters referred to in subsection (1).

3. Section 67D of the Act details the wide powers of the Court in relation to such applications. It relevantly provides:

   (1)  In proceedings under this Subdivision in relation to the birth of a child, the court may make such order as it thinks proper.

   (2)  In exercising its powers under this Subdivision, a court may do all or any of the following:

   (a)  order payment of a lump sum, whether in one amount or by instalments;

   (b)  order payment of a weekly, monthly or other periodic amount;

   (c)  order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

   (d)  order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

   (e)  order that payment be made to a specified person or public authority or into court;

   (f)  make a permanent order, an order pending the disposal of proceedings, an order for a fixed period or an order until further order;

   (g)  make an order imposing terms and conditions;

   (h)  make an order by consent;

   (i)  make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (h)) that it considers appropriate;

   (j)  make an order under this Subdivision at any time (whether before or after the birth of the relevant child).

4. Section 4(1) of the Act defines “child maintenance period” as follows:

   childbirth maintenance period, in relation to the birth of a child, means the period that begins on the day mentioned in paragraph (a) or (b) and ends 3 months after the child’s birth:

   (a)  if the mother:

   (i)  works in paid employment; and

   (ii)  is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and

   (iii)  stops working after being so advised and more than 2 months before the child is due to be born;

   the period begins on the day on which she stops working; or

   (b)  in any other case—the period begins on the day that is 2 months before the child is due to be born.

B.          Factual Background

1. The following factual summary will suffice for current purposes.

2. The parties are aged, respectively, 34 years (Mother) and 41 years (Father).

3. The parties’ relationship started in early 2011 and ended in August/September 2012.  Both agree that, to varying degrees, and with obviously different emphases as to the responsibility for it, the relationship was volatile.

4. Prior to the birth of the child and then being on maternity leave, the Mother worked as a (occupation omitted) in Canberra.  The Father is a (occupation omitted) in the (employer omitted) who was formerly based in Canberra.

5. Upon the Father being transferred to (omitted) in Sydney, part of the volatility in the relationship related to whether the birth of the child (and all ante-natal checks and obstetric requirements) should/would take place in Canberra or Sydney.  It had been originally agreed that all such things would take place in Canberra, where both parties had worked, and where the Mother’s family live.

6. In the result, although having originally consulted an obstetrician in Sydney, following the end of the relationship, the Mother pursued obstetric services in Canberra.  For reasons she sets out, she says that this led to extra costs.

7. The Mother also says that some prior gynaecological matters, set out in her affidavit (filed 30^th May 2013), required her to take out higher private health insurance.  She says that the Father agreed to this course.

8. The Mother contends (but provides no evidence in support) that in January 2013 the Father agreed to pay pregnancy-related costs, but has failed to do so.  She confirmed that he did pay $700 prior to X’s birth, and that he has paid $1500 for certain other bills.  She confirmed that the Father pays child support as assessed.

9. The Mother’s “expenses and losses” in relation to pregnancy are set out in paragraph 57 of her affidavit.  These include $15,610 for loss of income “for the six weeks prior to X’s birth and 3 months after.”

10. As set out in the Father’s submissions, the “child birth period” of two months prior to the birth until 3 months post the birth, is a period of 23 weeks, which ended on 26^th January 2013.

11. As will be immediately seen, the period claimed for loss of income by the Mother is, in fact, two weeks less than the period prescribed by the definition of “child birth period” in s.4 of the Act.

12. The Mother’s financial position is set out in her Financial Statement, filed on 30^th May 2013, and in paragraphs 62-76 of her affidavit.  It is sufficient to note that her annual income (for the financial year 2011-2012) was $71,526; she has superannuation of $23,565.99.  She has a very small share-holding in (omitted), and a car worth approximately $8000.  She owns a property that is rented but is otherwise subject to a significant mortgage.

13. Her maternity leave commenced on 5^th September 2012; it ended in May 2013.  The Mother receives $270.65 in child support from the Father.  At the time of the hearing, she planned to return to work in November 2013.

14. The Mother’s liabilities, essentially the mortgage over the investment property, total $253,420.

15. At pars.77-88 of her affidavit, the Mother gives an overview of what she says is the Father’s financial position.  It must, of course, be seen in the light of the Father’s affidavit evidence.

16. Thus, the Father is a (occupation omitted) in (employer omitted).  His annual gross income is $104,416.  According to the Mother, the Father also gets a service allowance of $12,128, is exempt from paying the Medicare levy of 1.5%, receives rental “contribution” of $516 per fortnight, and has access to free medical and dental care.  Although the Father addresses a number of the Mother’s allegations in his affidavit (pars.32-45), he does not contradict, challenge or otherwise refer to the “allowances” or “benefits” referred to by the Mother.

17. The Father has superannuation of $245,327, and a car worth $29,000.  His liabilities are modest: $24,740.

18. The Mother also claims that the Father has bought a high performance cycle (worth $5999) and special, related clothing and a camera worth a further $5000.  He uses, she says, special (and by inference, expensive) dietary supplements.  She also says that he uses various dating websites, for which there is some fee.

19. For his part, the Father says that the bike and camera are work-related, as is his use of dietary supplements.  He also confirmed that he does use dating web-sites, but says that he is not in any [current] relationship.

20. The Father confirmed that he paid the Mother $3200 by way of financial support (he annexed bank statements to his affidavit, filed 9^th July 2013).  He also referred to (and annexed) a copy of an email from the Mother’s solicitor, dated 4^th October 2012, which indicated that the [medical] expenses claimed by the Mother were $2211, plus half of out of pocket expenses, half of which totalled $3,786.

Discussion & Resolution

1. Two brief, preliminary comments are apposite. 

2. First, while I understand the Father’s keenness to provide the Court with copies of email correspondence between the parties (which he annexes to his affidavit), which he said evidenced the Mother’s “mixed messages” to him regarding the child (and they certainly do provide some “curious” reading, not to mention their floridly blunt and coarse language), for the purposes of the current application, in my view, they are of no particular relevance.  They do not aid the Court in any relevant respect.  They could or may be relevant in relation to a parenting application, but that is not what is currently before the Court.

3. Secondly, there is a genuine dearth of authority for applications of this kind.  Those referred to by the solicitors for the parties fall into the following categories: (a) strictly speaking, Harper & Pint [2011] FamCA 771 was a decision that related directly to property settlement between parties who were in a de facto relationship and where no orders were made pursuant to s.67B. Moreover, as Bennett J said, at [103], the Mother’s application for child birth expenses related, in fact, to her day to day living expenses. (b) the decision of then Judicial Registrar Johnston in MJ & JBD & Anor [2006] FamCA 419 related essentially to child maintenance applications. As with Harper & Pint, the child birth expenses were but a very tiny component of the overall application(s) before the Court.

4. Here, there is one issue only: the child maintenance application.

5. The Mother submitted, summarily stated, that she had properly identified and particularised the costs associated with the pregnancy and birth of X.  She further submitted that the costs and expenses claimed were reasonable in all the circumstances.

6. For his part, the Father submitted (also stated summarily) that (a) the Mother’s evidence was lacking in justifying all of the items claimed (e.g. there were no pay slips), and otherwise not all of the items claimed were reasonable; (b) the Father’s [uncommitted] income (of $47 per week) did not enable any relevant order to be met. Moreover, in comparison, while the Mother has assets (albeit significantly encumbered), the Father does not; (c) the Mother’s claim, it was submitted, did not take into account that the Father should not be required to meet all the expenses or shoulder all of the loss. At best, he should be responsible for half of those properly assessed to be expenses under the Act. In this regard, he submitted, for example, that the claim for private health insurance relates to a period that is much longer than the period prescribed under the Act.

7. For my part, I note the following.

8. First, as the Act makes plain in s.67C(4), the Court is not bound by the matters set out in s.67C((2) and (3). However, the Court must take into account the matters set out in s.67C(1).

9. Secondly, in my view, a number of the “medical expenses” claimed by the Mother do not, strictly, come within the term of “reasonable medical expenses” under s.67B(b). Thus, while I appreciate the Mother’s felt need for them, I do not see that she can claim for all of the private health insurance cover, for the Doula birthing partner, or for a “settling swing.” The Mother’s claim is not aided by the arithmetic difference between the amount claimed, of $11,451, and the itemised matters set out in her affidavit, which total $12,293. The difference is not explained. Neither the Respondent Father nor the Court should have to work out why or how there is such a difference in the quantum.

10. Thirdly, as a general proposition, I accept the Father’s submission that he should not have to bear all the costs and expenses claimed, but rather only half.

11. Fourthly, the Father’s apparent contention (par.46 of his affidavit) that the Mother was entitled to receive and, did so, the sum of $5000 by way of the “Baby Bonus” in my view cannot be taken into account by the Court.  I have noted earlier in these reasons that s.67C(3) provides (emphasis added): “In taking into account the income, earning capacity, property and financial resources of the mother, the court must disregard any entitlement of the mother to an income tested pension, allowance or benefit.”  The “Baby Bonus” is clearly an “allowance or benefit”, and therefore it should not be taken into account for the purposes of the current application.

12. Doing the best the Court can in the current circumstances, and (a) taking account of the matters set out in s.67C(1) – particularly the income, earning capacity, financial resources of each of the parties to which I have referred earlier in these reasons – and (b) discounting the items to which I have referred regarding the expenses claimed by the Mother, I would allow the Mother $7000 in relation to the “maintenance of the Mother for the childbirth maintenance period” and a further $7000 in relation to her “reasonable medical expenses” in relation to the pregnancy and birth.

13. Each party should pay their own costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 31^st January 2014