Adams and Simpson
[2008] FMCAfam 1327
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ADAMS & SIMPSON | [2008] FMCAfam 1327 |
| FAMILY LAW – Adult child maintenance. |
| Family Law Act 1975, ss.66J(3), 66L(1) |
| In the Marriage of Tuck (1989) FLC 91-021 B & B (1998) FamCA 1713 Re AM [2006] FamCA 351 C & L [2002] FMCAfam 163 In the of Marriage of FM (1997) FLC 92-738 KEK & BK [2005] FMCAfam 250 In the Marriage of Henderson (1989) FLC 92-011 |
| Applicant: | MS ADAMS |
| Respondent: | MR SIMPSON |
| File Number: | MLC 2712 of 2007 |
| Judgment of: | Baker FM |
| Hearing date: | 14 November 2008 |
| Delivered at: | Hobart |
| Delivered on: | 19 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Manova |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr Grant |
| Solicitors for the Respondent: |
ORDERS
That the amended application of the mother filed the 27th of July 2007 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Adams & Simpson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
MLC 2712 of 2007
| MS ADAMS |
Applicant
And
| MR SIMPSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the mother against the father for periodical adult child maintenance of $145.00 per week. In her affidavit filed
20 August 2008 the mother indicated that she was seeking an order in the alternative, of a lump sum to enable [J] to attend training, obtain driving lessons and set up for independent living.
The parties are the parents of the children [K] born in 1987 and [J] born in 1989.
[J] has Asperger’s Syndrome. He also has been diagnosed with Postural Hypotension. He is in receipt of a disability support pension. He has never worked in paid employment.
The mother contends that [J] is incapable of employment because of his Asperger’s Syndrome.
The father contends that [J] is capable of employment.
The father also contends that he does not have the capacity to pay the periodic maintenance sought by the mother.
Short History
The Applicant mother was born in December 1967. The Respondent father was born in June 1969. [K] was born in December 1987. [J] was born in February 1989.
The parents never lived together and were not married.
The father has not spent time with the children on a regular basis, and the last time he saw the children was at his father’s 60th birthday in December 2005.
The mother has never made an application for administrative assessment of child support. The father gave the mother cash on an intermittent basis until late 2006. In December 2006, the father told the mother he would not be paying any further monies to her after [J] turned 18 in February 2007.
The mother has been offered and accepted employment for three years as an [occupation omitted] on a salary of $55,000. She completed a [omitted] degree in 2007.
The father is [occupation omitted]. His annual income is over $54,000.
The Evidence
The Applicant mother relied on the following:
· An Amended Initiating Application filed 27th of July 2007.
· Her affidavits filed on the 9th March 2007 and the 20th of August 2008.
· Her Financial Statement filed 9 March 2007 and her Amended Financial Statement filed the 20th of August 2007.
· Affidavit of Dr F filed on the 20th of August 2008.
· Affidavit of Ms L filed the 23rd of October 2008.
· Affidavit of Ms S filed the 11th of November 2008.
The Respondent Father relied of the following:
Response filed on the 13th of August 2008.
His affidavit filed 13th of August 2008.
His Financial Statement filed 13th of November 2008.
Affidavits of Dr J filed 13th of August 2008 and 7th of October 2008.
The parties jointly relied on an affidavit of Ms D.
The Relevant Law – Adult Child Maintenance
The law to be applied is set out in Part VII, Division 7 of the Family Law Act 1975 s.66L(1) of the Family Law Act 1975 provides that maintenance is payable for a child over the age of 18 years when necessary:
a) To enable the child to complete his or her education; or
b)because of a mental or physical disability of the child.
The onus lies on the applicant to satisfy the Court of the child’s disability. In the case of KEK & BK[1] Ryan FM was dealing with an adult child maintenance application by a mother for her child, Matthew aged 18. Matthew suffered from numerous disabilities stemming from a pituitary tumour which was discovered in his brain at age 9. The extent of Matthew’s disability and his prospects of employment were at issue. In the course of the judgment Ryan FM referred to two cases, the first of which placed the onus on the applicant to prove lack of earning capacity, the second of which took a different approach.
“In In the Marriage of FM (1997) FLC 92-738 this constituted the applicant making, “every endeavour to obtain appropriate gainful employment for the child”. The court required evidence that the child would be “totally unsuited for any kind of employment and [would be] unlikely to obtain any form of employment either in the short term or the long term” Roberts FM took a slightly softer approach in C & L [2002] FMCAfam 163 (unreported). His Honour was satisfied that the child’s case fell under s.66L(1)(b) based on the evidence that that child was schizophrenic and had tried to take part in a scheme which would make him able to work, but failed. The child’s immediate inability to work meant that he should be maintained. [2]”
[1] [2005] FMCAfam 250
[2] Paragraph 43 of KEK & BK [2005] FMCAfam 250
In Re AM[3]Carmody J considered the case of FM and FM. His Honour said:
“In FM and FM [4] Reg. McGrath refused an application for child maintenance brought on behalf of a 19 year old child with cerebral palsy and associated mental deficits.
The subject child had been mentally ill since her earliest years but failed because she did not discharge the heavier that usual onus (sic) said to be on her to prove that she had no earning capacity.
The source of the Registrar’s ruling in FM seems to be the following passage in an online article published by Laura Morgan in 1997:
Because the duty to support a child ordinarily terminates when the child reaches the age of majority, it is up to the party asserting that the burden should not terminate to show that the adult child is in such a feeble and dependent condition physically or mentally as to be incapable of supporting him or herself. Moreover the burden is generally not just a preponderance of the evidence but is clear and convincing evidence (emphasis added)[5]
[3][2006] FamCA 351
[4] [1997]FLC 92-738
[5] Paragraph 93
Carmody J went on to state that there is not a higher standard of proof in maintenance proceedings than the standard of proof in civil proceedings.
Carmody J also referred to B & B [6] in which Carter J dismissed any suggestion that a claimant for maintenance under the second limb of section 66L(1) bore a higher “onus” than a child seeking education maintenance under the first limb of the same section.
[6] (1998) FamCA 1713
In accordance with the authorities of B & B and Re AM, the Mother has the onus to prove, on the balance of probabilities, that the provision of maintenance for [J] is necessary because of [J]’s mental disability.
The court must be satisfied that the maintenance is necessary. The Full Court in In the Marriage of Tuck[7] held that ‘necessary’ meant that maintenance for a child was for one of the specified reasons and it was reasonable in the circumstances that a parent contribute towards a child’s support. This interpretation was confirmed In the Marriage of Henderson.[8]
[7] ( 1989 FLC 91-021) paragraphs 94-95
[8] (1989 FLC 92-011)
The court must take into account the relevant provisions of the remainder of Division 7 relating to child maintenance. Section 66J provides for the matters to be taken into account in considering financial support necessary for maintenance of the child, which includes “the proper needs of the child, and the income, earning capacity, property and financial resources of the child”. Section 66J(3) provides:
3) In taking into account the income, earning capacity, property and financial resources of the child, the court must:
“(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.”
In considering what financial support is necessary for [J]’s maintenance, the court is required to consider whether or not [J] has a capacity to earn or derive income within the meaning of s.66J(3)(a) and the is court required to disregard his disability pension.
The Court has a discretion not to exercise its adult child maintenance jurisdiction even though the threshold conditions on s.66L(1) are satisfied.[9]
[9] Re AM at page 24
The mother contended that the fact that [J] is receipt of a disability support pension, the court should find that [J] has no capacity to work. Whilst [J] has met the criteria required under the Social Security Act 1991 to obtain a disability pension, the court, in an application pursuant to s.66L of the Family Law Act 1975, must be satisfied that the maintenance is necessary in accordance with In the Marriage of Tuck. The court is required to consider whether or not [J] has a capacity to earn or derive income having regard to the expert evidence before it. The receipt by [J] of a disability pension does not preclude a finding that he is capable of employment for the purposes of s.66L of the Family Law Act 1975.
Mother’s Evidence
[J] completed year 11 in 2005. He did not pass years 9, 10, or 11. In December 2002 a neuropsychological assessment was carried out in respect of [J] at Latrobe University. The report indicated that:
“overall, [J]’s cognitive profile indicates that his verbal, perceptual, and executive functioning are all in the average range indicating no concerns in his cognitive ability to benefit from counselling. He is verbally fluent and able to plan, reason and problem solve information presented both visually and verbally. In addition he demonstrated no weaknesses in sequencing and numerical reasoning, general factual knowledge or social judgment. [J] demonstrated some impairment in his working memory and speed of processing indicating that he needed to have information presented in smallish chunks and given plenty time to process the information…”
Recommendations were suggested as a way of compensating for memory and learning difficulties.
In October 2003 a report was prepared by the Behavioural Neurotherapy Clinic, which described [J] as having behavioural and learning difficulties and recommended ongoing treatment twice a week at the clinic from a team consisting of psychologists and a medical practitioner, Dr N.
In 2006 the mother organised for [J] to attend programs, to help him obtain employment, called Youth Employment Plus and Youth Pathways at NIMIT but he could not complete either.
In 2006 [J] was referred by Dr N to a psychiatrist, Dr E, for a further opinion. Dr E referred [J] to Dr Y, consultant neuropsychiatrist. Dr Y was uncertain regarding diagnosis in [J]’s case. In January 2006 Dr E diagnosed [J] with Aspergers Syndrome.
In mid 2007 [J] was referred by Centrelink to Commonwealth Rehabilitation Service Australia, a job network provider. He was given one month’s work experience at [store omitted].
In February 2008 the mother obtained a report from Dr F in which he recommended that the mother seek consultation with a psychologist to develop management strategies to be used to improve [J]’s adaptation and functioning in a social environment.
In cross-examination the mother admitted that she had not taken any steps to assist [J] obtaining employment, because [J] was with Commonwealth Rehabilitation Service and there was no need.
Expert Evidence
[J] was diagnosed with Aspergers Syndrome on 6 January 2007 by
Dr E.
Dr F, the mother’s expert witness, in his report dated the 26th of February 2008, stated:
“he is quite unmotivated to seek employment and is content to spend his time in repetitive and one might say unproductive activities, such as improving his capacity to shuffle cards and his snooker shots. Because [J] lacks social insight it is unlikely he would ever be able to make a living from card playing or professional snooker playing”. Dr F continued “whilst he may be said to be capable of employment he is socially unmotivated to obtain it and I understand that he has been granted an Australian Disability Support pension on account of his condition”.
In his supplemental report Dr F said he:
“meant by the statement, ‘whilst he may be said to be capable of employment’, is that while others may say he is capable of employment, he is in my opinion incapable, because of his condition to obtain it. It is my considered opinion that [J] would require a lot of support in order to obtain employment. That support would involve a case worker or manager or personal support worker to assist him with obtaining employment. He would also require a supportive environment in which to work. Based on my experience, at present [J] would be unlikely to achieve gainful employment”[10]
[10] Paragraphs 4, 5 and 6
Dr F said he:
“meant by the statement in his previous report, ‘he is socially unmotivated to attain it (employment)’, is that his lack of motivation to obtain employment is a direct consequence of his Aspergers Syndrome.”[11]
[11] Paragraph 7
Dr J, the father’s expert witness, disagreed with Dr F that [J]’s lack of motivation was due to Aspergers Syndrome, rather it was because he was receiving an income without working.
Dr F, in his evidence in chief, stated that he agreed with Dr J’s opinion that [J] is intellectually and physically capable of undertaking employment, but he believed it was more a matter of his motivation and capacity to adapt to the demands of employment, and something he’s not interested in doing is going to create a problem with finding gainful employment.
Dr F, in his report of 20 February 2008, had recommended that the Mother seek consultation with a psychologist experienced in working with young adults with Aspergers Syndrome, to develop management strategies to be used to improve [J]’s adaptation and functioning in the social environment. In cross-examination Dr F stated that a psychologist should assess [J] and recommend what specific steps would be needed to assist [J] in finding employment. He stated that this should be done before [J] gives up trying to obtain employment. Dr F stated that when he saw him in February 2008, that was the next step that needed to be taken.
Dr J proposed work for [J] in a library or mail room where he had little or no contact with people. Dr F stated in his evidence in chief, that the issue for him, was what appropriate employment could be found for [J]. However, he agreed in cross-examination that he did not discuss any form of employment with [J]. The reason he gave for that was that before he gave up on employment for [J] certain steps needed to be taken to try to get him motivated and find appropriate work for him. Notwithstanding that Dr F stated that lack of motivation is a manifestation of Aspergers Syndrome, he was of the opinion that steps could be taken to get [J] motivated.
Dr F agreed with Counsel for the husband, that his opinion of [J] being incapable of employment because of his condition was at the time of his presentation in February 2008, and without [J] undertaking the steps that had been recommended to the mother.
Both experts were of the opinion that [J] would require assistance to participate in interviews and in finding employment.
Ms L, an occupational therapist, gave evidence in her report filed
23 October 2008. She stated that her assessment was focused on the occupational performance of activities for daily living. There is no direct assessment of [J]’s capacity to work, rather his performance on tasks required to live in the community in order to determine whether assistance is needed. She stated that [J] displayed difficulties with many of the elements that are present in work tasks as well and that he will require assistance to live in the community. He requires prompting to initiate, continue and complete tasks successfully. Ms L indicated that she did her assessment in early September 2008. In cross-examination, Ms L said that in relation to work, [J] would need some support, but she wasn’t saying that he couldn’t work. She stated that in unfamiliar tasks, he may need some direct skills training and support.
The affidavit of Ms S filed on 11 November 2008 indicated that she had completed an occupational therapy driving assessment with [J]. This evidence does not assist me as a driver’s licence is not essential for obtaining employment.
The jointly filed affidavit of Ms D outlined the day support available from ALPHA Autism Inc, which is a specialist support service assisting adults with Autism Spectrum Disorder and Aspergers Syndrome. [J] does not have a diagnosis of an intellectual disability so he may not be able to access the services of ALPHA unless there is funding available.
In summary, both the experts, Dr F and Dr J were of the opinion that [J] is currently not able to be employed, but with assistance and the taking of certain steps with a psychologist to try and get him motivated and to develop management strategies, there is possibility of employment for him. Dr F was of the opinion that until those steps are taken, suitable employment for [J] can not be given up. Ms L was of the opinion that [J] could work with some support.
Conclusion
[J] has an ongoing mental disability of Aspergers Syndrome and a physical disability of Postural Hypotension. He is in receipt of a disability pension. This does not relieve him of the onus of convincing the court that he lacks the capacity to work and earn an income, so that the payment of maintenance is necessary for him.
[J] completed his schooling in 2005. In 2006 the mother organised for [J] to attend two programs to help him obtain employment, but he could not complete either.
In 2007 [J] attended the Commonwealth Rehabilitation Service and did one month of work experience at [store omitted]. The mother made no further steps to assist him to obtain employment. She believed there was no need because he was registered with Commonwealth Rehabilitation Service. He has never worked in paid employment.
Dr F, the mother’s expert witness, at the time of writing his report in February 2008, was of the opinion that [J] was not employable. However, his evidence at the hearing was that he could not give up on employment for [J] until [J] took the steps, which he had recommended, to try and get him motivated and find employment.
The evidence of the experts Dr F, Dr J and Ms L indicated that with assistance and support [J] could work in paid employment.
The mother and [J] have not taken the steps recommended by Dr F in his report of February 2008 to seek assistance from a psychologist.
Until these steps are taken, it cannot be found that [J] has a lack of earning capacity. Whilst his scope for employment is limited, I am not convinced, on the balance of probabilities, that [J] is totally unsuited for any kind of employment. I am not convinced, on the balance of probabilities, that the provision of maintenance is necessary because of [J]’s disability.
In the event that further evidence establishes, on balance, that [J] is unable to obtain employment, there is nothing to prevent either him or his mother making a further application.
I dismiss the application.
That the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 19 December 2008
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