Ballantyne and Ballantyne
[2015] FCCA 500
•16 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALLANTYNE & BALLANTYNE | [2015] FCCA 500 |
| Catchwords: FAMILY LAW – Application for adult child maintenance – physical and mental disability conceded – whether maintenance necessary – whether amount sought necessary because of disability – whether duration of order should be fixed – whether order should be backdated. |
| Legislation: Family Law Act 1975 (Cth) ss.66B, 66C, 66G, 66H, 66J, 66K, 66L |
| Tuck & Tuck (1981) FLC ¶91-021 Re: AM (Adult Child Maintenance) [2006] FamCA 351 Cosgrove & Cosgrove(No.2) (1996) FLC 92-701 Everett & Everett [2014] FamCA FC 152 Myrtle & Myrtle[2012] FamCA 460 Norbis & Norbis[1986] HCA 17 Janine & Janine & Anor (No.2) [2011] FamCA 843 W & W[2002] FamCA 1143 Lightfoot & Hampson (1996) FLC ¶92-663 Mee & Ferguson (1986) FLC ¶91-716 Vick & Hartcher (1991) FLC ¶92-262 Gyselman & Gyselman [1991] FamCA 93 Henderson and Henderson (1989) FLC92-011 |
| Applicant: | MS BALLANTYNE |
| Respondent: | MR BALLANTYNE |
| File Number: | MLC 7347 of 2014 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 11 & 12 February 2015 |
| Date of Last Submission: | 12 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Sweeney |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Ms M. Smallwood |
| Solicitors for the Respondent: | Coote Family Lawyers |
ORDERS
The respondent pay adult child maintenance for X born (omitted) 1994 (“X”) in a quantum of $230.00 per week to be payable to the applicant and payable from 20 August 2014.
That such payments continue for a period of 3 years from the date of this order.
That any arrears now accrued under this order be paid to the applicant in lump sum within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Ballantyne & Ballantyne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7347 of 2014
| MS BALLANTYNE |
Applicant
And
| MR BALLANTYNE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for adult child maintenance for X born (omitted) 1994 (“X”). X was born with Down Syndrome and a congenital heart defect.
X’s mother, Ms Ballantyne (“the applicant”) commenced these proceedings by application filed on 20 August 2014. Mr Ballantyne (“the respondent”) is X’s father and he filed a response on 16 October 2014.
X’s level of disability is not in dispute. It is the applicant’s position that X’s proper needs are not being met from reasonable and adequate shares in the income earning capacity, property and financial resources of both of his parents and the respondent should pay her $4,274.00 per month for adult child maintenance. The respondent says the applicant has not established that adult child maintenance is necessary. In the alternative, the respondent’s position is the expenses claimed by the applicant purportedly because of X’s disability are either not necessary, include matters that shouldn’t be taken into account, and/or are inflated and/or excessive.
Background
The applicant and respondent were married in (omitted) 1990 and separated in April 2001. There was a divorce order, as that term is now known, made in 2003. There were two children of the marriage. They are X and Y (who was born on (omitted) 1992) (“the children”). After separation, and until 2013, the children lived with the parties on an equal time basis. However Y and X now live with the applicant and spend time with the respondent.
The applicant is 51 years of age and gives her occupation as a (occupation omitted). The applicant commenced a defacto relationship with Mr A in 2008. The applicant resides in (omitted), Victoria with Mr A (who is retired) and the children.
The respondent is 52 years of age and is now employed as a (occupation omitted). The respondent resides in (omitted), Victoria with his second wife, Ms F (who he married in 2009) and her children.
Since separation there have been proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”) to which it will be necessary to return so that the orders each party seeks can be properly understood.
The respondent had been paying child support for X until the end of 2012, the year X turned 18 years of age. Since that time the respondent has not paid the applicant anything by way of financial support for X. X is 21 years old and it is not controversial that his physical and intellectual disabilities (with an IQ of 46) mean that he cannot work.
As well as a disability support pension, X is eligible for disability funding administered by the Victorian Department of Human Services under an Individual Support Package Funding (ISP) of $41,122 per year. This funding covers the cost of formal programs and additional development support. This latter benefit is not an income tested person, allowance or benefit for the purposes of Division 7 of Part VII of the Family Law Act 1975 (“the Act”).
In 2013 the applicant withdrew around $80,000 from X’s bank account without the respondent’s knowledge or consent. There were proceedings at VCAT. In July 2013 VCAT made orders appointing the Office of the Public Advocate as X’s guardian. There was also an order made in VCAT that Ms S, solicitor be appointed as the administrator of X’s affairs.
The parties returned to VCAT in August 2014. On 3 September 2014 the orders made in July 2013 were revoked by VCAT and orders were made for the Office of Public Advocate to remain as X’s guardian. VCAT also made orders for the applicant to be appointed as a ‘limited administrator’ for X’s pension and mobility allowance. VCAT otherwise appointed State Trustees as Administrators in relation to the rest of X’s estate and made the following orders:[1]
[1] Annexure B-1 to affidavit of respondent filed 9 January 2015
“Having reassessed the administration order and the guardianship order the Tribunal makes the following order:
The orders dated 25 July 2013 are revoked.
The Tribunal is satisfied that the represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances and estate; and needs a guardian and an administrator.
The Tribunal orders that:
1.The Public Advocate, Office of the Public Advocate (omitted), be appointed limited guardian of the represented person with powers and duties:
to make decisions concerning medical or dental treatment or other health care
to make decisions concerning access to services
2.The Tribunal approves delegation by the Public Advocate of the Public Advocate’s powers and duties as guardian of the represented person to an officer or employee employed in the officer of the Public Advocate.
3.Ms Ballantyne, (omitted), be appointed limited administrator (the private administrator) of the estate of the represented person with such of the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986 as are required to administer the pension and mobility allowance income of the represented person and expenditure of that income.
4.The private administrator shall lodge with the Tribunal Accounts by Administrator (ABAs) for examination as follows:
Accounting period for first ABA: 3 September 2014 to 30 June 2015
Lodgments date for first ABA: As soon as practicable after 30 June but no later than 30 September 2015.
Examiners: State Trustees Limited, who may charge the estate an examination fee only if approved by the Tribunal.
5.The private administrator shall lodge subsequent ABAs for each financial year, commencing on 1 July and ending on the following 30 June, as soon as practicable after 30 June but no later than 30 September in each year.
7.(sic) State Trustees Limited, of (omitted), be appointed administrators of the estate of the represented person with respect to all other aspects of the estate save for the pension and mobility allowance income of the represented person and expenditure of that income, with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986.
8.State Trustees Limited is entitled to the following remuneration (inclusive of GST) from the estate of the represented person for acting as administrator:
A.A commission on gross income received at a rate of not exceeding:
(i) 3.3% in respect of Centrelink or Department of Veterans’ Affairs pensions; and
(ii) 6.6% in respect of all other income.
B.A once only capital commission not exceeding 5.5% of the gross value of any assets of the estate; and
C.A fee not exceeding 1.1% per annum on the capital sum invested in any common fund of State Trustees Limited.
For any services provided to the estate State Trustees Limited or its subsidiary STL Financial Services Limited is entitled to remuneration at a rate not exceeding the amount set in the scale of charges lodged with the Treasurer and published in the Government Gazette.
9.The former administrator is excused from submitting Accounts by Administrator for the period 1 July 2014 to the date of this order.
10.The guardianship order be reassessed no later than
30 September 2015 and the administration order be reassessed no later than 30 September 2015.
11.The guardian shall, no later than 3 Business days prior to the date on which the guardianship order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
12.This order shall continue to have effect until further order of the Tribunal.
13.The administrators and the guardian shall immediately notify the principal registrar in writing of any change of address of the represented person, the administrators or the guardian.
The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.
(omitted), Deputy President
3 September 2014”
The VCAT orders provided they would be reassessed in September 2015. VCAT subsequently noted on 12 September 2014 that:[2]
[2] Ibid
“The Tribunal records that:
The Tribunal’s order dated 3 September 2014 contained:
a clerical mistake
The Tribunal orders that:
Paragraph 8 of the Tribunal’s order is amended to remove the reference in paragraph 8A(1) to commission in respect of Centrelink or Department of Veterans’ Affairs pensions, as the administration order made appointing State Trustees Limited does not apply to the pension income of the represented person.
(omitted), Deputy President
12 September 2014”
Application
As is clear from the above by the time of those orders by VCAT the applicant had already filed her application in this Court on 20 August 2014 seeking orders for adult child maintenance for X as follows:
“1.That Pursuant to section 66L of the Family Law Act 1975 (Cth), the Respondent Father Mr Ballantyne pay to the Applicant Mother Ms Ballantyne for the maintenance of Adult Child X born (omitted) 1994 (‘X’), the sum of $2,532 per month from the date of the filing of this application.
2.That the first of such payments is to be made within seven (7) days from the date of this order and monthly thereafter.
3.That the maintenance accrued from the date of the filing of this application to the date of this order be paid in one lump sum payment within one month from the date of this order.
4.That the amount of maintenance provided in paragraph 1 hereof be varied on and from the instalment next due twelve months (12) after the date of this order and thereafter each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for all groups for Australia by comparison with the Consumer Price Index as it stands on the thirty-first (31st) day of December immediately preceding the date of variation as compared with the same index at the same date twelve (12) months prior hereto.
5.That the parties do all acts and things required to register these orders with the Child Support Agency.
6.That the respondent pay the applicant’s costs of and incidental to this application on an indemnity basis.”
Response
On 16 October 2014 the respondent filed a response which sought the following orders:
“1.The Applicant’s Application be dismissed.
2.The Respondent be excused from particularising the terms of the Orders sought pending full and frank financial disclosure by the Applicant.
3.The Applicant pay the Respondent’s costs of and incidental to this Applicant on the indemnity basis.
4.…”
Directions
The proceedings were first listed in this Court on 21 October 2014.
On that occasion Counsel appeared on behalf of both the applicant and the respondent. On 21 October 2014 the Court made the following orders:
“BY CONSENT IT IS ORDERED
1.That all applications for final orders be adjourned to a final hearing on 11 February 2014 with an estimated hearing time of one day (“the final hearing”).
2.That within 28 days the Husband provide to the Wife the following documents:
(a)Tax returns for himself for the past three (3) financial years;
(b)Documentation of all payments related to his termination from (employer omitted) in 2013;
(c)His employment contract or contractor arrangement with his current employer, (employer omitted);
(d)Documentary evidence of income and bonuses (if any) received or anticipated in the 2013/14 and 2014/15 financial years;
(e) His most recent superannuation statement;
(f)Copy statements for the past three (3) years for all bank and financial accounts held by him or on his behalf.
3.That within 28 days the Wife provide to the Husband:
(a) A copy of her most recent superannuation statement;
(b)Copies statements for the past three (3) years for all bank and financial accounts held by her or on her behalf;
(c)Documentary evidence in respect of the expense claimed in the spreadsheet provided by her to the Husband’s lawyers on 15 October 2014.
4.That on or before 4pm on 14 December 2014 the Applicant Wife make, file and serve any further affidavit material upon which she may rely.
5.That on or before 4pm on 22 December 2014 the Respondent Husband make, file and serve any further affidavit material upon which he may rely.
6.That on or before 4pm on 9 February 2014 each party make, file and serve an Outline of Case which contains:
(a) A precise Minute of Orders sought;
(b) A list of documents upon which that party relies;
(c) An outline of agreement.
7.That within 21 days of the date of these orders, the Applicant Wife serve a sealed copy all Applications and supporting Affidavit material upon the Office of the Public Advocate and State Trustees and put them on notice of the final hearing date.
8.That all interim application be otherwise dismissed.”
Amended application
On 12 December 2014 the applicant filed an amended initiating application which sought the following orders:
“1.That Pursuant to section 66L of the Family Law Act 1975 (Cth), the Respondent Father Mr Ballantyne pay to the Applicant Mother Ms Ballantyne for the maintenance of Adult Child X born (omitted) 1994 (‘X’), the sum of
$2,532$4,274 per month from the date of the filing of this application.2.That the first of such payments is to be retrospectively calculated as payable as and from the date of filing of the Mother’s Application and monthly thereafter.
3.That the amount of maintenance provided in paragraph 1 hereof be varied on and from the instalment next due twelve months (12) after the date of this order and thereafter each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for all groups for Australia by comparison with the Consumer Price index as it stands on the thirty-first (31st) day of December immediately preceding the date of variation as compared with the same index at the same date twelve (12) months prior hereto.
4.That the parties do all acts and things required to register these orders with the Child Support Agency.
5.That the Respondent Father pay the Applicant Mother’s costs of and incidental to this application on an indemnity basis.”
Both the Office of the Public Advocate and State Trustees were served with the applicant’s material and the orders made on 21 October 2014.[3] Neither organisation (despite their respective roles under the VCAT orders) sought to be heard in these proceedings.
[3] see exhibit A1
The hearing commenced on 11 February 2015 and occupied two days. The applicant was represented by Mr Sweeney of Counsel and the respondent was represented by Ms Smallwood of Counsel.
Material relied upon
At the hearing and after the Court rejected an oral application by Counsel for the applicant to proceed undefended for reasons given ex tempore the Court was told by Counsel for the applicant that his client relied on:
·her affidavit filed on 20 August 2014;[4]
·her amended initiating application filed 12 December 2014;
·her affidavit affirmed and filed 12 December 2014;[5] and
·her financial statement affirmed and filed 12 December 2014.[6]
[4] Marked as exhibit A2
[5] Marked as exhibit A3
[6] Marked as exhibit A4
The applicant also relied upon a number of exhibits which were tendered in Court:
·
correspondence to the State Trustees dated 31 October 2014 and correspondence from the Office of the Public Advocate dated
31 October 2014;[7]
·financial statement of the Ballantyne Family Trust for 2014;[8]and
·correspondence from X’s speech pathologist dated 8 February 2015.[9]
[7] Marked as exhibit A1
[8] Marked as exhibit A5
[9] Marked as exhibit A6
The Court was told by Counsel for the respondent her client relied on:
·his response to initiating application filed 16 October 2014;
·his financial statement filed 16 October 2014;[10]
·his affidavit sworn and filed 15 October 2014;[11] and
·his affidavit sworn and filed 9 January 2015.[12]
[10] Marked as exhibit R5
[11]Marked as exhibit R6
[12] Marked as exhibit R4
The respondent also relied on a number of exhibits which were tendered in Court:
·financial statement of the Ballantyne Family Trust as of 30 June 2014;[13]
·financial documents 2013;[14] and
·financial documents 2014.[15]
Position of the parties
[13] Marked as exhibit R1
[14] Marked as exhibit R2
[15] Marked as exhibit R3
Applicant’s position
In submissions filed prior to the hearing the applicant’s position was:
“1.The Mother, as a parent of X, has standing to make the present application. The power to do so is contained in section 66F(1)(a) of the Family Law Act 1975 (Cth).
2.Section 66F(2) of the FLA has no application to the current Application. The guardianship orders in relation to X have been made pursuant to the Guardianship and Administration Act 1986 (Vic) (GA). The GA is not a prescribed State law for the purpose of defining “child welfare law” under of subsection 66F(2). For the purposes of the definition of “child welfare law” in subsection 4(1) of the FLA, regulation 12B of the Family Law Regulations 1984 (Cth) (‘the Regulations’) prescribes only a state or territory law “that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence” and the list of statutes set out in column 2 of Schedule 5 to the Regulations. The GA is not a law that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence and is not listed in Schedule 5 to the Regulations.
3.If subsection 66F(2) of the FLA did apply, the Mother would nonetheless have standing to bring the present application as a parent who has the daily care of X.
Applicability of Child Maintenance provisions to X
4.Section 66L(1) of the FLA provides that 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.
5.X suffers from both physical and mental disabilities in the form of Down Syndrome, a mild to severe intellectual disability and a Ventricle Septal Defect. Details of X’s disabilities are set out at paragraphs 26 to 32 of the Mother’s affidavit affirmed and filed on 12 December 2014 (‘the Mother’s affidavit’). These conditions render X unable to support himself and the provision of maintenance is therefore necessary.
6.The term ‘necessary’ means something more than morally or socially ‘desirable’ but less than ‘absolutely necessary’: Re AM (Adult Child Maintenance) [2006] FamCA 351 at [73]; Tuck & Tuck (1981) FLC ¶91-021.
7.The provision of maintenance for a child over the age of 18 is necessary in the relevant sense if the child reasonably needs it because he or she is handicapped in some way: Re AM (Adult Child Maintenance) [2006] FamCA 351 at [74]; Tuck & Tuck (1981) FLC ¶91-021.
The financial support necessary for the maintenance of the child
8Subsection 66H(a) of the FLA provides that the Court must consider the financial support necessary for the maintenance of the child.
9Section 66J of the FLA provides, relevantly, that in considering the financial support necessary for the child, the Court must consider:
(a)the matters mentioned in section 66B (see below).
(b)the proper needs of the child, including any special needs of the child.
(c)the income, earning capacity, property and financial resources of the child, having 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 disregarding 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 disregarding any entitlement of the child or any other person to an income tested pension, allowance or benefit.
10.X has significant needs, including special needs as a result of his disabilities.
11.“Special needs” includes such things as unusual medical expenditure, facilities for a handicapped child: at Lightfoot & Hampson (1996) FLC ¶92-663 at [82,852].
12.The financial support necessary for X does not mean “absolutely essential” but means that “maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties' financial circumstances and other relevant factors”: Tuck & Tuck (1981) FLC ¶91-021 at [76,227].
13.Details of X’s special needs are set out at paragraphs 26 to 32 of the Mother’s affidavit. The level of disability is not an issue in dispute.
14.The programs in which X is enrolled and the associated costs are set out at paragraphs 49 to 54 of the Mother’s affidavit. The total anticipated cost of these programs for 2015 is $66,668 per year. The programs are independently assessed as appropriate and approved by OPA in its role as guardian for X’s medical and dental treatment, health care, and access to services and programs.
15.His additional financial needs are deposed to in the Mother’s Financial Statement affirmed and filed on 12 December 2014 (‘the Mother’s Financial Statement’). The Mother incurs approximately $1,159 per week or $60,268 per annum in direct expenses for X.
16.The Mother also incurs approximately $43,399 in indirect expenses relating to her care of X. The Mother therefore incurs a total of $103,667 in direct and indirect expenses relating to her care of X.
17.X has no capacity to earn an income. He receives $22,511 per annum in Centrelink payments, of which $20,194 is an income tested pension.
18.There is a shortfall of approximately $81,170 per annum between expenses incurred in meeting X’s needs and the funding he receives. Disregarding his income tested pension, that shortfall is $101,364.
19.X has a savings account with a balance of approximately $85,000. These funds are controlled by the VCAT-appointed administrator. They are not available to meet his day-to-day needs. A child is not required to realise the entirety of his or her property before he or she is entitled to be maintained by a parent: see Cosgrove & Cosgrove (1996) FLC ¶92-701.
20.The Mother asserts that the total level of financial support necessary to be provided by both parents for the support of X is $89,646 per annum or $7,470 per month.
The financial contribution towards the financial support necessary for the maintenance of the child, that should be made by a party
21.Subsection 66H(b) of the FLA provides that the Court must determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings.
22.Section 66K of the FLA provides, relevantly, that in determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account:
(a)the matters mentioned in sections 66B, 66C and 66D [see below].
(b)the income, earning capacity, property and financial resources of the party or each of those parties, having regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.
(c)the commitments of the party, or each of those parties, that are necessary to enable the party to support himself or herself; or any other child or another person that the person has a duty to maintain.
(d)the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, having regard to the income and earning capacity forgone by the parent or other person in providing that care.
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
23.Consideration of the question of child maintenance involves consideration of a comparison of the respective financial circumstances of the parties to meet the needs of the child: Mee & Ferguson (1986) FLC ¶91-716 at [75196].
24.There is a significant disparity between the income, earning capacity, property and financial resources of the parties and their respective abilities to meet X’s needs.
25.The Mother has a limited earning capacity as a result of her caring responsibilities for X and does not currently generate employment income. Her total net assets total approximately $667,000 including superannuation. She is dependent upon her de facto partner for financial support and is making contributions to the financial support for X from her capital.
26.The Father has not only a greater earning capacity but more capital resources than the Mother. His income is consists of a fixed salary and additional bonuses and benefits. He has disclosed fixed remuneration of $250,000 per annum and a total potential annual remuneration package of $373,900. He has disclosed net assets of approximately $800,000 including superannuation but has an additional equitable interest in his home, which is registered in the sole name of his wife.
27.The reference to “any other child or another person that the person has a duty to maintain” relates to a legal duty and not a moral duty: Vick & Hartcher (1991) FLC ¶92-262.
28.The Father has deposed to providing $2,124 per week, or $110,448 per annum in support of his wife and adult stepsons. The Father has no legal duty to support his stepsons. To the extent that he provides that support the sum so applied is available for the discharge of his legal obligation to support X. The Father’s wife earns approximately $130,000 per annum and there is therefore no requirement to maintain her. Indeed the extent of her income underlines that she alone can discharge any obligation that may exist (currently met by the Father) to meet the “needs” of her biological children.
29.The Mother incurs direct expenses totalling approximately $81,170 per annum in relation to X’s care which are not met by the funding he receives. Disregarding X’s income tested pension, the shortfall between his needs and the funding available to meet his expenses, which falls to the Mother, is $101,364 per annum.
30.The Mother incurs significant indirect costs in providing for X’s care, including lost earning potential of approximately $30,000 per annum as a result of X’s need for constant supervision, and the provision of personal assistance with a financial value of approximately $13,399 as a result of X’s need for significant assistance. The Mother also engages in substantial unpaid work in the provision of care for X. The care provided by the Mother for X would cost approximately $111,933 if provided by the Government in the form of supervised accommodation. Details of the indirect costs incurred by the Mother in relation to X’s care are set out at paragraphs 68 to 76 of the Mother’s affidavit.
31.A “special circumstance which, if not taken into account in the particular case, would result in injustice or undue hardship to any person” is not required to be economic in nature. Sacrifices made by a parent in caring for a child can be relevant: Re AM (Adult Child Maintenance) [2006] FamCA 351 at [161] and [163].
32.The Mother’s responsibility to care for X has a significant impact on her lifestyle, freedom and choices. The Father’s lifestyle is not similarly affected. Details of the disproportionate burden borne by the Mother in this regard are set out at paragraphs 45 to 48 of the Mother’s affidavit. This is a special circumstance which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
33.The Mother asserts that having regard to the factors outlined above, the Father should bear two-thirds of the financial responsibility for X’s support and the Mother one-third.
The treatment of X's Disability Support Pension
34.X's Disability Support Pension is an income tested pension to which he is entitled.
35.Pursuant to Regulation 12A of the Regulations, a social security pension or a social security benefit within the meaning given by subsection 23(1) of the Social Security Act 1991(Cth) (SS Act) is an “income tested pension, allowance or benefit” for the purposes of the definition in subsection 4(1) of the FLA. A Disability Support Pension is a social security pension as defined in subsection 23(1) the SS Act.
36.Subsection 66J(b)(ii) of the FLA provides that in taking into account the income, earning capacity, property and financial resources of the child, the court must disregard any entitlement of the child or any other person to an income tested pension, allowance or benefit.
37.Subsection 66K(4)(a) of the FLA provides that in determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit.
38.Subsection 66C(2)(c) of the FLA provides that the duty of a parent to maintain a child is not affected by any entitlement of the child or another person to an income tested pension, allowance or benefit.
39.X’s entitlement to a Disability Support Pension must therefore be disregarded in taking into account X’s income, earning capacity, property and financial resources, and in determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings. The Father’s duty to maintain X is not affected by X’s entitlement to a Disability Support Pension.
Relevance of Mother’s Partner’s Financial Circumstances
40.Subsection 66K(4)(b) of the FLA provides that in determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
41.Subsection 66D(1) of the FLA provides that the step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step-parent to have that duty. Subsection 66M(1) of the FLA provides that a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under that section.
42.Subsection 66D(2) of the FLA provides that any duty of a step-parent to maintain a step-child is a secondary duty subject to the primary duty of the parents of the child to maintain the child and does not derogate from the primary duty of the parents to maintain the child.
43.No order has been made requiring X’s stepfather to support him. As such, X’s stepfather does not have a duty to maintain X. There has been no application for such an order and X’s stepfather is not a party to the proceedings. No special circumstances exist to warrant the Court having regard to X’s stepfather’s financial circumstances.
44.Even if X’s stepfather did have a duty to support him, this duty would be secondary to the primary duty of the Father to support him and would not operate to relieve the Father of that duty.
45.To the extent that the resources of the parents are sufficient to meet the reasonable financial needs of the children, resort ought not to be had to the step-parent: Mee & Ferguson (1986) FLC ¶91-716 at [75,192].
46.A substantial part of the financial burden of caring for X presently falls upon his stepfather. This is deposed to at paragraph 7 of the Mother’s affidavit and item 18 of the Mother’s Financial Statement. This is a result of the significant shortfall between the cost of meeting X’s needs and the funds available to the Mother. It is not appropriate that X’s costs be met by his stepfather rather than his father.
Objects and Principles
47.Subsection 66B(1) of the FLA provides that the principal object of Division 7 of Part VII of the FLA is to ensure that children receive a proper level of financial support from their parents.
48.Subsection 66B(2) of the FLA provides that particular objects of the Division include ensuring that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents and that parents share equitably in the support of their children.
49.Subsection 66C(1) of the FLA provides that the parents of a child have, subject to this Division, the primary duty to maintain the child.
50.Subsection 66C(2)(b) of the FLA provides that the duty of a parent to maintain a child has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself or any other child or another person that the parent has a duty to maintain.
51.The term "commitments of the parent necessary to enable the parent to support" himself means commitments which are reasonably needed for that purpose: Gyselman & Gyselman [1991] FamCA 93 at [95]. The husband’s expenditure for his own benefit, which includes the cost of mortgage payments and other expenses for a luxury holiday house, far exceeds that which is reasonably needed to support himself.
52.X is currently receiving minimal financial support from his father, the support provided being limited to that provided directly by the Father during the limited periods during which he cares for X. This is contrary to the object of ensuring that children receive a proper level of financial support from their parents.
53.X is not having his proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of his parents. He receives minimal benefit from the substantial income and resources of the Father. The Mother provides for X’s needs to the extent that her income and resources allow. X’s needs are otherwise being met by his stepfather.
54.X’s parents are not sharing equitably in his support. The Mother (and her partner who has no legal duty to do so) are presently bearing the overwhelming majority of responsibility for supporting X, notwithstanding the Father’s significantly greater income and resources. The orders sought by the Mother, which would provide for the Father to provide two-thirds of the financial support for X, represent an equitable division of responsibility for X’s support given the substantial disparity in the parties’ earning capacities.
55.The Father has the primary duty to maintain X and has the capacity to do so. This duty has priority over all commitments of the Father other than commitments necessary to enable him to support himself or any other child or another person that he has a duty to maintain. Notwithstanding this, the Father is providing financial support to adult children to whom he does not owe a duty and the support of X is falling to a third party. This is contrary to the principles of the FLA.”
The applicant sought that the Court make the following orders:[16]
“1.That pursuant to section 66L of the Family Law Act 1975 (Cth), the Respondent Father Mr Ballantyne pay to the Applicant Mother Ms Ballantyne for the maintenance of Adult Child X born (omitted) 1994 (‘X’), the sum of $4,274 per month from the date of the filing of this application.
2.That the first of such payments is to be retrospectively calculated as payable as and from the date of filing of the Mother’s Application and monthly thereafter.
3.That the amount of maintenance provided in paragraph 1 hereof be varied on and from the instalment next due twelve months (12) after the date of this order and thereafter each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for all groups for Australia by comparison with the Consumer Price index as it stands on the thirty-first (31st) day of December immediately preceding the date of variation as compared with the same index at the same date twelve (12) months prior hereto.
4.That the parties do all acts and things required to register these orders with the Child Support Agency.
5.That the Respondent Father pay the Applicant Mother’s costs of and incidental to this application on an indemnity basis.”
[16] applicant’s case outline filed on 9 February 2015
Respondent’s position
In submissions filed prior to the hearing the respondent’s position was:
“1.The extent and nature of X’s disability is not in dispute. It is conceded he falls within the legislative category for adult child maintenance applications.
2.The Applicant must establish, as an initial premise, a need for adult child maintenance, in order to succeed. It is submitted she fails to do so, at law, because of the extent of X’s personal savings, of $85,000.
3.In determining the level of financial support which is necessary for X, pursuant to 66J(1) of the Family Law Act, the Court must consider:
1(a)the income, earning capacity, property and financial resources of the child;
…
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.
4.The considerations so defined are mandatory (“must”).
5.X has a number of sources of income and financial support. It is submitted that X’s savings of approximately $85,000 and the interest which he earns on these savings must be considered as an available resource from which his reasonable expenses can be met.
6.Whilst the Husband concedes that the Disability Support Pension received by X should be excluded as it is an income-tested pension, X has the following other sources of financial support which are paid on an annual basis from which he/the Applicant could draw to meet his reasonable expenses:
ISP Funding Package $ 41,122
Mobility Allowance $ 2,316
Carers Allowance $ 3,673
Total $ 47,111
7.It is incumbent upon the Applicant to establish that X’s necessary expenses exceed his income and financial resources. The Respondent asserts the expenses calculated and relied upon by the Applicant do not constitute proper matters to be taken into account when determining X’s needs, or are inflated.
8.The Applicant claims indirect expenses totalling $43,399 which she estimates as the cost of her personal supervision and assistance of X while he is in her care. The concept of adult child maintenance does not include a notional wage to a parent, which is in effect what the Applicant seeks.
9.The Respondent's position is that expenses as outlined by the Applicant as being necessary for X’s maintenance are excessive and do not accurately represent the cost of X’s living expenses. This argument extends to the inflated nature of the costs of the programs in which he participates to address his disability. The Respondent relies on his estimate of reasonable living expenses for X as outlined in Annexure “B-2” of this Affidavit sworn on 9 January 2015.
10.The Respondent contends that all of X’s special needs can be met by enrolment in programs which are significantly less expensive than the programs he is currently enrolled in. The Applicant is not consultative with the Respondent in the choice of programs. She acts without reference to the Respondent. There are alternate choices available which would provide the same benefit, and in some circumstances, the additional benefit of peer interaction, which X is not currently receiving in the one-on-one programs in which he has been enrolled. It is not conceded that the expenses sought by the Applicant to be considered are necessary within the meaning ascribed by case law to maintenance proceedings.”
The respondent sought that the Court make the following orders:[17]
“1.The Applicant's Amended Application filed 12 December 2014 be dismissed;
2.The Applicant pay the Respondent's costs of and incidental to these proceedings;
3....”
[17] respondent’s case outline filed on 12 February 2015
Both parties were called to give evidence and were cross examined.
Applicant’s case
In opening Counsel for the applicant, after adopting the case outline filed on behalf of his client, told the Court his client’s claim was that what was necessary by way of adult child maintenance for X because of his disability was made up of two aspects. The first was his day to day needs. The second aspect concerned other costs (such as programs and monies) the applicant submitted were also necessary because of X’s disability.
In her affidavit filed 12 December 2014 the applicant deposed that:
“X’s health and development
26.X has an intellectual disability. Through the Wechsler Intelligence Scale for Children (WISC), X's IQ has been assessed to be 46. That score places him in the category of moderate to severe intellectual disability. X’s intellectual disability impacts significantly on his daily functioning, goals and aspirations. He requires more time to learn than most people. He also requires more time to respond to other people and to situations. X cannot follow a number of instructions at the same time. He cannot conceptualize, generalize or transfer abstract information.
27.X cannot be left alone, unsupervised. He cannot travel independently, has minimal road safety awareness, negligible personal safety skills, and is unable to make decisions to maintain personal safety. X sometimes exercises poor judgement in terms of his choice of friends. He lacks skills in problem solving or in working out how and why things work. X has difficulty understanding outcomes and consequences. X also lacks skills in handling money.
28.X’s communication is primarily verbal, although he has a significant stutter and poor articulation. People who do not know X well generally find it hard to understand what he is saying.
29.X is able to eat independently but portion control and choice of food requires constant monitoring. X needs encouragement to make healthy choices.
30.X generally attends to his own personal hygiene but requires periodic checking to be sure he washes his body and cleans his teeth properly. At this stage, X is not capable of trimming his own nails.
31.X was also born with a Ventricle Septal Defect (VSD) which is a congenital heart defect. While there are no immediate symptoms or treatment required, the condition does require yearly tests and monitoring by a cardiologist. X’s cardiologist has recommended that X undertake regular exercise and weight management to prevent heart disease. X also has pronounced varicose veins in his legs which may progress to more serious conditions from lack of exercise and weight gain.
32.X has a mild hearing loss in his left ear. He is prone to reoccurring ear infections. This further compromises his hearing capacity. Hearing tests and reports are required 3 times a year to check X’s hearing capacity. Making sure X’s hearing is optimal is very important for his ongoing learning and development.
…
43.At this stage, X requires constant supervision.
44.I currently undertake the following tasks to ensure X is cared for:
(a)I perform personal hygiene tasks for X including trimming his nails, encouraging proper washing, checking for pimples around his groin area and ensuring that he washes properly. I reinforce the importance of proper teeth brushing, apply eardrops when he suffers from ear infections, supervise his shaving and encourage proper dressing according to weather.
(b)I assist with shopping for clothing and all other necessities. I wash X’s clothes, organise his wardrobe and assist him with choices about what to wear. I also prepare his meals at home and his lunches for most program days.
(c)I educate X on proper choices in regard to food and appropriate portion sizes. I respond to his requests for assistance with internet, email, Facebook and similar matters. I also educate him regarding personal safety and mobile phone usage.
(d)I communicate with Mr Ballantyne to keep him informed on relevant issues in relation to X, such as health conditions or social events that may occur when X is spending time with Mr Ballantyne. I wait for Mr Ballantyne’s response or input after I advise him of events and work around my own and X’s schedules to accommodate Mr Ballantyne’s schedule. I do that to ensure X has a strong relationship with Mr Ballantyne. I also facilitate X’s relationship with Mr Ballantyne’s extended family by coordinating his telephone conversations with them, by arranging birthday cards to be sent to them and also by arranging visits in person.
(e)I liaise with a number of agencies to ensure X’s needs are met. I currently coordinate X’s programs with six Disability Service Providers. I seek out and organise programs (group and individual) available to further X’s education and learning. For X’s 2015 program, I have been planning, briefing, communicating, co-ordinating, and attending reviews with six organisations and service providers. Within these organisations I liaise with four managers, three program co-ordinators, seven direct support persons/trainers, two bus drivers and six accounts personnel.
(f)I arrange and attend X’s appointments with his General Practitioner, Cardiologist and Ear Specialist. I apply all recommended treatments and administer X’s medication. I then monitor his responses to those treatments and medication. I also attend additional appointments with health care professionals for the reviews that are required by Centrelink.
(g)I manage X’s funding from the Department of Human Services (DHS). I attend his reviews to ensure that his funding continues and I apply for funding when required. I attend meetings with DHS contractors and communicate with them by email and phone every time there is a change of personnel, when they request further information or when they make a mistake. When there are changes to X’s programs I communicate with DHS and the OPA.
(h)I manage X's Disability Support Pension (DSP) and attend medical reviews to ensure he continues to receive the DSP. I communicate with Centrelink over the phone and email to inform them of any relevant VCAT orders and payment arrangements.
(i)During the 10 non-program weeks each year, I organise for X to socialise with friends, seek out appropriate camps and outings with his peers and transport him to and from activities. During these periods, X also travels with me and my family every two years to visit (country omitted) where his grandfather and extended family reside. X has also travelled to (omitted) to spend time with Mr Ballantyne’s family during the non-program weeks.
(j)For after program hours, I plan and organise gym, dancing, basketball, swimming and other activities and transport and accompany X to those activities.
(k)In relation to X’s social life, I seek out opportunities for him to make new friendships and maintain contact with friends including accompanying and chaperoning him with friends on outings.
(l)I liaise with X's OPA Guardian to communicate and consult with her in regard to program changes, changes in medical and other service providers. I attend VCAT reviews and I liaise with X's Administrator from the State Trustees to ensure X’s savings are being invested properly.
45.The responsibility falls on me for whatever X is incapable of doing and for everything needs to be organized and facilitated. I must set achievable goals for X and ensure his safety at all times. To that end, X’s goals and aspirations become my goals and aspirations. In situations where there are no services or inadequate services, it is up to me to create them. My life is centred doing all things necessary for living the lives of two people, X’s and mine. My care of X is constant and ongoing.
46.There is profound difference between Mr Ballantyne’s lifestyle and mine as a result of my role as X’s primary carer. Mr Ballantyne’s role as a father to X is akin that of an adult child who has left home. Mr Ballantyne has the freedom to work to the level of his choosing, to travel, and to undertake recreational activities such as going out for meals, going to see a movie, or going for a walk, without having to think about who will supervise X. For me, the role of primary carer of X is all encompassing. It impacts my every hour and my every choice. My life is organised and lived around X and his needs, and will continue to be into the future. Every plan and decision I make requires that I take X’s care and needs into consideration first.
47.I love my son X and I do not doubt that Mr Ballantyne loves X as well. We both care about him and want to ensure that he has the best possible chance at a meaningful, enjoyable and fulfilling life. However, the overwhelming majority of the burden of ensuring that this occurs falls upon me.
48.I anticipate that if I am successful in my application, Adult Child Maintenance will alleviate some of my financial burden in caring for X. However it will not and cannot address the profound difference between Mr Ballantyne’s position of freedom and choice and my position of being X’s primary carer.
…
X’s savings
57.X has a savings account with a balance of approximately $85,000 which was accumulated by Mr Ballantyne and me over the years from Carer Allowances and some Disability Support Payments. These funds are currently being looked after by the VCAT-appointed Administrator and are subject to a 5.5% commission in the first year and 1.1% in subsequent years. These funds cannot be accessed by me and are not available to cover the day to day costs of X’s care.
Shortfall between costs incurred and funds available
58.In each year, there is a significant shortfall between the costs I incur in relation to X’s care and the funds I receive to meet those costs.
59.For example, in 2014, X participated in the following eight programs:
(a)Flexible Individual Support: $17,280
(b)Speech Therapy: $4,800
(c)Your DNA: $6,048 and out of pocket cost $556
(d)MECWA (funded cost): $12,095
(e)MECWA (out of pocket costs): $1,320
(f)Inclusion Melbourne: $6,048
(g)Physical training: $4,500
(h) Interchange camps and social activities $1,393
60.As at the date of affirming this affidavit, the total cost of the programs for 2014 has been $54,040. With program funding of $41,122, there is a shortfall of $12,918.
61.In 2014 I incurred an estimated $91,053 in direct and indirect expenses in relation to X. I estimate the direct costs to have been a total of $47,654, made up of living costs of $34,736 and net program costs (as set out above) of $12,918. I estimate the indirect costs to have been a total of $43,399, being personal assistance costs of $13,399 and supervision costs of $30,000. These indirect costs are calculated as the amount I would need to pay for a third party to undertake the personal assistance work undertaken by me and the amount of my lost earning potential as a result of my ongoing responsibility for constant supervision of X. My indirect and lost opportunity costs in relation to supervision and personal assistance are set out in greater detail later in this affidavit.
62.My total expenditure on X for 2014 was therefore approximately $91,053. Funding provided included $2,317 in Mobility Allowance and $11,087 in DSP, totalling $13,304. The net costs incurred by me for X’s care in 2014 were therefore approximately $77,649.
Explanation of estimated income and costs for 2015
63. In 2015, X will incur the following program costs:
(a)Flexible Individual Support: $23,495
(b)Abilities Employment: $13,225
(c)Speech Therapy: $4,800
(d)Your DNA: $12,095 and out of pocket expenses $1,112
(e)Inclusion Melbourne: $6,048
(f)Interchange camps and social activities $1,393
(g)Physical Training: $4,500
64.The total costs of the programs for 2015 is estimated to be $66,668. I funding of $41,122 to be provided. The shortfall that will be borne by me is $25,546.
65.Based on 2014 expenses, I estimate that in 2015 I will incur approximately $103,681 in direct and indirect expenses, as follows:
(a) Living costs $34,736
(b) Net program costs $25,546
(c) Personal assistance $13,399
(d) Supervision $30,000
66.X will receive $2,317 in Mobility Allowance and $20,194 in DSP, totalling $22,511. I estimate that the net costs incurred by me for 2015 will be $81,170, after applying X’s mobility allowance of $2,317 and his DSP of $20,194.
67.The costs set out above do not disregard X’s income-tested pension.
My indirect and lost opportunity costs
Supervision
68.I am trained as a (occupation omitted). I am starting out in that field and working part-time to build a private practice. My income does not yet exceed my costs for training supervision, insurance, professional association fees and operating costs. I estimate my potential earnings in full-time employment at $60,000 per annum.
69.Because X cannot be left alone and requires constant supervision, it is not possible for me to work in full-time employment. As a result, I have lost the opportunity to earn a full-time income. I estimate my lost income to be approximately $30,000 per annum.
70.During the period when Mr Ballantyne and I shared equal care of X, Mr Ballantyne engaged carers to look after X so he could work. The carer cost $120 a day for approximately three hours of care. Annexed hereto and marked with the letters “B-11” is a true and correct copy of an email from Mr Ballantyne dated 2 December 2011 documenting the $120 a day cost. I calculate that over 25 weeks, the care cost incurred by Mr Ballantyne was $15,000 a year. This does not include the additional cost for the 10 non-school weeks per year when X is at home full-time and does not attend programs. I am now providing all of this care, valued at $30,000, for a full year. Mr Ballantyne no longer incurs any of the expense.
71.I spend an average of three hours a day during program weeks and 10 hours a day during the 10 non-program weeks providing care and supervision for X at times which interrupt normal working hours. That is 1,000 hours per year which, at the DHS carer rate of $40.79 per hour, equates to approximately $40,790 per year. If I were to engage in full-time employment, I would need to pay for this support.
72.If X were living in supervised accommodation with three other disabled adults with similar needs, this would cost the Government $2,152.55 per week per person, or over $111,933 a year per year for his care. Annexed hereto and marked with the letters “B-12” is a true and correct copy of an extract from the National Disability Insurance Agency document, which sets out a schedule for this type of care.
Personal Assistance
73.As set out earlier in this affidavit, X requires significant personal assistance. A great deal of time and effort is required to do or assist with activities that 20 year olds would usually do for themselves, such as organising outings with friends, organising recreational activities, transporting to and from events and activities, organising and accompanying to medical appointments, organising and monitoring development and day programs, organising and monitoring carers, applying and reapplying for funding, making lunch, monitoring hygiene, taking for haircuts, trimming nails, assisting with shaving, washing and ironing, shopping for clothes, dealing with program staff, and coordinating bus schedules.
74.I am also required to engage in significant additional support activities, including dealing with service providers. For example, I am required to pass on information and work done at speech therapy for implementation and practice, to set goals for learning and development, and to discuss strategies for achieving goals and for behaviour modification and management. As I have X during all work days, this responsibility falls entirely on me.
75.Mr Ballantyne provides a very limited amount of support on alternate weekends, and the personal support and assistance burden falls almost entirely on me. At least one hour per day is required for these activities. At the Disability Services Unit Price of 40.79 per hour this equates to a cost of $14,888 each year that would need to be paid if there were no parent to do this work. I estimate my share of this burden to be at least 90% or $13,399.
76.If I were not available to provide this assistance, the burden would fall on the Australian community. NDIS cost for such support could be as much as $32.000 at rates up to $87 per hour.”[18]
[18] Exhibit A3
In her evidence before the Court the applicant adopted her affidavits and financial statement referred to above. In cross examination the applicant agreed she had withdrawn over $80,000.00 from X’s bank account and had only repaid it after proceedings were commenced in VCAT. The applicant admitted in cross examination she had kept monies received for X by way of his pension and other payments over and above what expenses she incurred for him.
The applicant objected to any amount ordered by the Court being paid to State Trustees. The applicant’s evidence was that this was because it would, she said, mean extra paperwork for her. However importantly the applicant conceded she also didn’t want any such payment made in that way as it would she said compromise and affect the level of and whether X received a disability pension.
The applicant admitted she wanted the respondent to make the payment to her so she could keep that money as well as X’s pension and other payments. The applicant’s evidence was she believed the respondent should financially support his son before other people.
The applicant admitted the previous administrator appointed by VCAT for X had (using X’s money) got legal advice on pursuing an adult child maintenance claim at her insistence and had decided not to make such a claim.
The applicant acknowledged in cross examination her new business was running at a loss but she was now more involved in the workforce than she had been and that she could be working whilst X was attending programs during the week.
The applicant did not disagree with the proposition put to her in cross examination that many of the costs she was purportedly claiming in this application were lifestyle choices.
The applicant agreed that the costs she was claiming (such as speech therapy) were because she had chosen those programs over and above those covered by the ISP and that many of the additional costs she was claiming were for respite care for her.
Importantly the applicant was forced to confront in cross examination the claim that her affidavit material had deliberately painted a “picture of overwhelming need” when the reality was the shortfall in the expenses referred to in her affidavit material (taking into account the ISP funding) was only around $15,000. When challenged about this the applicant’s demeanour belied the veracity of her claim these programs and the additional money for them were necessary because of X’s disability. The applicant’s evidence before the Court made clear her view was whatever programs she chose for X should be found to be and accepted as necessary (and paid for by the respondent) regardless of whether it could be established they were necessary because of his disability.
Moreover the applicant acknowledged in her evidence in cross examination that part of her claim for the money referred to at paragraph [61] of her affidavit was for her wages she claimed she had foregone as a result of caring for X.
When confronted with these matters (and indeed most matters when pressed to justify her claims) in cross examination the best the applicant could say was “maybe I jumped the gun”. Indicative in my view of the applicant’s attitude to this matter was her admission in cross examination that whilst she wasn’t paying for many of the amounts sought, she just thought money equivalent to the amounts sought for those things should be paid to her by the respondent.
It was clear from the applicant’s evidence she had not understood all of the detail in her financial statement and had relied on Mr A to prepare material for this case. In relation to expenses claimed to be living costs or basic expenses, the applicant acknowledged household rates shouldn’t be claimed, nor should house repairs and maintenance, child minding, pool maintenance, gardening and house insurance costs be included despite having made an application which included those.
The applicant acknowledged even if all of the living expenses she claimed were accepted (and added to this was the shortfall for programs not covered by ISP of around $13,000) her claim of $4,274 per month was still way in excess of the amount required.
When asked if the application was successful, but the Court made no order for costs, who would pay for her costs of these proceedings the applicant’s evidence was that her partner, Mr A would.
Finally the applicant maintained that she wanted any payment ordered to be paid to her and objected to any money found to be necessary for X because of his disability and payable by the respondent being paid to State Trustees.
Respondent’s case
In opening Counsel for the respondent, after adopting the outline of case filed on behalf of her client and noting there was no issue regarding X’s disability or his inability to work, reiterated that her client’s position was that the burden fell to the applicant to establish a need for adult child maintenance. Counsel for the respondent pointed to X’s resources, sources of income and financial support (over and above the income tested pension) from which his reasonable expenses could be met. It was submitted the applicant’s calculations of and expenses claimed by her were either not proper matters to be taken into account or were “grossly inflated”. Counsel for the respondent submitted the applicant’s claims included a notional wage for her, the other expenses were excessive and (in relation to programs) there were alternate choices. In the circumstances it was submitted the Court should not be satisfied what the applicant claimed was necessary because of X’s disability and the application should be dismissed.
The respondent filed an affidavit on 9 January 2015 in which he deposed:
“…
12.From the date of separation in 2001 until July 2013, Ms Ballantyne and I shared equally care for Y and X on a week-about basis. Changeovers occurred on the Friday of each week.
13.I provided financial support for Y and X when they were in my care and paid their educational expenses. I also paid child support, as assessed by the Child Support Agency from time to time, ranging from $1,700 per month to $978 after Y completed his secondary education.
14.In early 2013, Ms Ballantyne and I agreed that it would be in X’s best interests if he lived predominantly with one parent. However, we were unable to come to an agreement at that time about the arrangements for X’s care.
15.In approximately March 2013, I learnt that Ms Ballantyne had accessed X’s bank account without my consent and she had organised for his Income Support Pension to be redirected to her bank account without my consent. X has approximately $85,000 in a savings account with the (omitted) Bank. This amount has been accumulated from contributions from the Carers’ Allowance and the Disability Support Pension. This account was set up by Ms Ballantyne and me to ensure that X had sufficient funds for his future care.
16.I was very concerned that Ms Ballantyne was using the funds in X’s bank account and his pension for purposes other than his care. I also became increasingly concerned that Ms Ballantyne was enrolling X in programs without my consent.
17.Given my increasing concerns about Ms Ballantyne’s use of X’s bank accounts and pension, in April 2013, I made an application to the Victorian Civil & Administrative Tribunal (VCAT) to be appointed X’s guardian and administrator. I also made application for him to live with me for the majority of the time.
18.In response to my Application to VCAT, Ms Ballantyne made her own Application to VCAT to be appointed X’s guardian and administrator. She sought that X live with her for the majority of the time.
19.At the VCAT hearing on 25 July 2013, the Tribunal made Orders, by consent, that X would live with Ms Ballantyne for 11 days per fortnight and X would live with me every second weekend for three days. Prior to agreeing to this arrangement, the Office of Public Advocate (OPA) advised Ms Ballantyne and me that X was happy to live with either of us. I consented to X living with Ms Ballantyne on the condition that an independent guardian and an independent administrator would be appointed. The OPA was appointed as X’s guardian. Ms S, practising solicitor, was appointed as X’s administrator.
20.On 29 August 2014, VCAT reviewed the Guardianship and Administration Orders made on 25 July 2013. The OPA was maintained as X’s guardian. Ms S refused to be reappointed as the administrator. It is my understanding that Ms S’s refusal came about as a result of the communications she had been receiving from Ms Ballantyne. On 3 September 2014, a further Order was made which provided for Ms Ballantyne to be limited administrator for X’s pension and mobility allowance income and for the State Trustees to be administrators in respect of X’s savings referred to at paragraph 15 above. Now produced and shown to me and marked with the letters “B-1” is a true copy of this Order dated 3 September 2014 together with the further Order dated 12 September 2014.
21.Since the VCAT hearing, Ms Ballantyne has attempted to further exclude me from decision making with regards to X. The OPA is now taking a more active role in ensuring that I am included in decision making and which programs X should attend.
22.Following the change in X’s living arrangements, Ms Ballantyne has made attempts to obtain further financial contributions from me on the basis that the cost of X’s care, living expenses and activities are not covered by his current level of funding. I am aware that independent legal advice has previously been obtained by X's previous administrator to investigate the likely success and or benefit to X of making an Application seeking that I pay Adult Child Maintenance for X’s benefit. The cost of this advice was paid from X's savings account. It is my understanding that after receiving that advice, the administrator decided not to proceed with an application on X's behalf. In light of that decision, I was particularly concerned that Ms Ballantyne would now see fit to bring this application purportedly on X's behalf.
CONCERNS ABOUT MS BALLANTYNE’S FINANCIAL MISMANAGEMENT
23.Historically, there have been significant issues with Ms Ballantyne management of X’s finances and of particular concern, there have been a number of incidents where she has withdrawn money from X’s account for her own benefit.
24.In around 2002 Ms Ballantyne withdrew the sum of $8,000 from X’s account to meet her own rental expenses as she had got herself into financial difficulty. Despite claims that this money would be repaid, I do not believe that it has been repaid in full.
25.In 2013 Ms Ballantyne escorted X to the (omitted) Bank where she convinced the teller to allow her to withdraw the balance of X’s account (at that time around $80,000) and paid into her own account. She was later forced to return the money to X’s account when the Bank became aware of the manner in which the money was withdrawn.
26.Throughout our marriage, Ms Ballantyne had significant difficulties managing money and I believe that these stem significantly from her gambling problems. Ms Ballantyne has a history of problem gambling and her gambling was a significant factor in our relationship breakdown. I understand that she has self-excluded herself from the Casino, however her gambling has been a recurring problem about which I remain concerned.
27.I am also concerned that Ms Ballantyne’s current application is the latest in a series of attempts since our separation and final property settlement to seek further payments from me. Since our separation, Ms Ballantyne has instigated numerous Court proceedings and significant correspondence from solicitors at great expense to both of us. Examples of these are as follows:
(a)Following separation Ms Ballantyne made representations to Centrelink that she was Y and X's primary carer (notwithstanding the shared care arrangement which was in place at the time). This ultimately resulted in her having to repay the ATO and Centrelink.
(b)In 2006 Ms Ballantyne issued proceedings in the Federal Magistrates Court in relation to share options, of which pursuant to our final property settlement, Ms Ballantyne was to receive a certain component. At the time of separation it was estimated that her share of the option may be approximately $15,000 but by the time the option was exercised, the amount was significantly less due to changes in the exchange rate and taxation. I made offers to settle the matter however these were rejected and Ms Ballantyne proceeded with her Application for a claim for approximately $60,000 (which was more than the whole of the net proceeds). At the conclusion of the case, it was determined that Ms Ballantyne would be paid $6,200 which was the amount I had offered her prior to the commencement of the proceedings.
(c)In 2009 Ms Ballantyne initiated further proceedings in relation to care arrangements for the children. Ms Ballantyne's Application in those proceedings was to have X spend the majority of overnight time with her and Ms Ballantyne was also seeking that I continue to pay child maintenance for X after he turn 18. Ultimately there was no agreement reached and the Final Orders effectively replicated the status quo that had been in place two years prior. The process took two years and was extremely expensive for both of us.
(d)In 2010 when X turned 16 and was eligible to receive a Disability Support Pension, Ms Ballantyne and I discussed how we would apply for it on his behalf. Ms Ballantyne then went behind my back to the Department of Human Services and arranged for the pension to be set up in an account in her sole name and with her as nominee. The funds that were deposited into this account were only repaid to X's account after Ms Ballantyne was ordered to do so by the Court.
(e)Since separation to 2012 there were a myriad of claims made by Ms Ballantyne to the Child Support Agency about the level of child support to be paid. She constantly claimed that she had no income and was unable to work despite the fact that we had a shared care arrangement. She was constantly seeking variations to the child support assessment to have me pay more child support.
28.I am concerned that Ms Ballantyne’s current application is simply a further demonstration of Ms Ballantyne’s extremely litigious nature and her constant attempts to do anything to obtain money for herself. I believe, unfortunately, that Ms Ballantyne may still have gambling problems. I do not believe that this Application has been in X’s interests or brought out of genuine necessity for X’s needs. It is my view that funds available to X are sufficient to meet his living expenses and that the additional funds now sought by Ms Ballantyne are not required for X's benefit.
FUNDING AVAILABLE FOR X’s CARE
29.X is currently in receipt of the following government allowances, the funds from which are available to Ms Ballantyne to be applied to X's living expenses:
(a) Disability support pension $ 20,194
(b) Mobility allowance $ 2,317
(c) Carer's allowance (paid to Ms Ballantyne) $ 3,673
TOTAL $ 26,184
This amount is not taxed and can be utilised by Ms Ballantyne in any way she sees fit to apply to X's expenses. These funds are paid either directly to Ms Ballantyne or are paid into an account in X's name of which Ms Ballantyne is the sole administrator.
30.In addition to the government benefits, X has the benefit of an individual support package available to him totalling $41,122 per year. This amount is used to cover the expense of programs in which X participates and any other expenses approved by the Department of Human Services. A proportion of the individual support package can also be applied to discretionary expenses. In 2009, I successfully applied for this to assist with the cost of out of hours care while X was living with me and I was working full-time. These funds would be similarly available to Ms Ballantyne to be utilised in whichever manner she saw fit to apply towards X's expenses.
X’s LIVING EXPENSES
31.The general living costs which Ms Ballantyne claims she expends on X's behalf are in my view manifestly excessive. I have undertaken an analysis of X’s living expenses on an annual basis and have set out a comparison of the expenses claimed by Ms Ballantyne and what I consider to be reasonable expenses for X. Now produced and shown to me and marked "B-2" is a true copy of the table.
32.Ms Ballantyne estimates X's annual living expenses total $34,736. On my estimation, the annual expenses for X's day to day living expenses are $16,596. Accordingly, the disability support pension that X receives being an annual amount of $20,194 is more than sufficient to meet X's basic living expenses.
THE COST OF X’s PROGRAMS
33.X is engaged in a number of programs. The cost of which can be adequately met by the independent support package which X receives.
34.Whilst I am not opposed to X having every opportunity to participate in programs which he enjoys and which are beneficial to him, I am concerned that Ms Ballantyne is choosing to outsource activities which could be done at home, such as learning how to catch public transport and cooking, she enrols X in the most expensive services which do not necessarily confer a greater benefit. I believe that X’s best interests would be served through ongoing parental help for many of these aspects of his daily life, rather than purchasing help from others. In this regard, I am very hands on in his care when he is with Ms F and me.
35.Ms Ballantyne has also excluded me from much of the decision makings about the programs in which X is enrolled and I consider that the shortfall claimed by Ms Ballantyne is due solely to her insistence on expensive programs which I do not necessarily consider to be in X’s best interests:
(a)The Flexible Individual Support Program and the Abilities Employment Program, in which Ms Ballantyne has arranged for X to participate in 2015, total $36,720 for the year, are much more expensive than comparative programs and do not necessarily advance X’s welfare. I estimate that these one-on-one personalised services are $27,720 above the average cost of a standard program on the basis of programs such as MECWA and Inclusion Melbourne which are $6,000 per year for one day or $9,000 year for 1½ days per week. These programs (and others) have as part of their curriculum similar objectives such as catching public transport. I believe that X’s skills with cooking, personal care, community contact etc would be better achieved through a more hands-on approach by Ms Ballantyne and me as his parents rather than it being fully or substantively outsourced;
(b)Personal training - $4,000 (see paragraph 36 below);
(c)Weekly speech therapy - $4,800 (see paragraph 37 below).
36.I agree that X does need to maintain a healthy weight however I do not believe that 5 personal training sessions a fortnight is required in order for this to happen. It is a very expensive option which Ms Ballantyne has chosen and I believe that X's health and fitness can be addressed through other means such as hands on help and assistance regarding his diet and exercise. He needs to have an effective way of keeping his weight down long term and for Ms Ballantyne and me to assist him to achieve this with his day to day care.
37.In relation to his speech therapy, I am concerned that the necessity for X to attend on a speech therapist has been insisted on by Ms Ballantyne in circumstances where other programs also assist him in this regards. For example, X's participation in the Your DNA Drama Program is in my view is very significant to X's speech development as there are a lot of emphasis with this program on speaking, not just in the plays in which the program participants perform but also in their interaction with the community. I also believe that X draws valuable benefit from his other activities in relation to his speech development and that the requirement of him attending upon a speech therapist once per week is not necessary and could be reduced as he is already doing well in this area.
COST OF X’s CARE
38.Ms Ballantyne estimates that the care she is providing X is valued at $30,000 per annum. I take significant exception to this estimation. When the VCAT proceedings were determined in 2014 a variety of options were tabled for X's care including a proposal that he reside with me on a full-time basis and spend weekend time with Ms Ballantyne. Ms Ballantyne refused to entertain any proposal pursuant to which X would reside predominately with me and was insistent that X should reside with her full-time and spend time with me on weekends and during holidays. We subsequently agreed that X would reside with Ms Ballantyne for 11 nights per fortnight and with me for three. When this arrangement was entered into, Ms Ballantyne was fully aware of the level of care which would be required for X on a day to day basis and she was insistent that she wanted to provide his predominant care. On that basis it is now completely disingenuous for her to claim that she should effectively be compensated and receive remuneration as a carer.”
In the respondent’s evidence before the Court he adopted the affidavits and financial statement referred to earlier. The respondent agreed with the proposition put to him in cross examination the $80,000 in savings that X had was put aside for X’s future including his accommodation.
In cross examination the respondent agreed the applicant was devoted to X and had his best interests at heart. However the respondent maintained he didn’t believe the applicant chose programs for X to attend with X’s interests and needs because of his disability always first in mind. The respondent’s evidence underscored his evidence in chief about his view of the choices the applicant made in this regard and that he believed they were to suit her needs and not X’s. The respondent remained opposed to additional speech therapy as being necessary for X.
The respondent’s evidence made clear the parties couldn’t communicate or co-operate about financial issues. The respondent’s answers to questions in cross examination bore out the concerns he deposed to having about whether proper use was being made of available financial resources such as the ISP program by the applicant to meet X’s necessary needs because of his disability.
The respondent agreed with the proposition put to him in cross examination that his attitude was he shouldn’t have to contribute to X’s support. The respondent’s evidence was he didn’t accept the expenses the applicant claimed and that the tax payer should pay for X before he did.
The respondent was repeatedly challenged in cross examination about “the test” he applied to the proper indirect expenses for X and was whether those were what was necessary and rather than in his view just beneficial. The respondent’s evidence only served to underscore his evidence and belief that most of what was claimed by the applicant as necessary because of X’s disability was not and was either to suit choices made unilaterally by the applicant or claims for matters which whilst desirable, were not necessary.
Whilst acknowledging his income was three times that of the applicant’s and that he had had time to put money for X’s maintenance aside before this application was made, the respondent’s view maintained in his evidence before the Court, was that X had more than sufficient financial and other resources to meet his needs.
In cross examination the respondent conceded he hadn’t included a bonus he’d received for the last financial year in his financial statement.
The respondent’s evidence in cross examination was his calculations of X’s “basic living expenses” were as set out in annexure 2 to his most recent affidavit. The respondent acknowledged he had “eventually” been able to get information on the programs X attended funded through the ISP funding from the Office of the Public Advocate.
The respondent’s evidence in cross examination reinforced his evidence in chief that he had concerns about the applicant’s mismanagement of X’s finances, given the history of attempts she had made to get access to X’s money without telling the respondent. The respondent’s position was that any order for maintenance should be made payable to State Trustees for X’s benefit.
Applicant’s submissions
In final submissions before the Court, Counsel for the applicant noted that in this case it was not in dispute that X had profound disabilities and could not work. Counsel for the applicant noted the respondent’s evidence in cross examination was that X required supervision. It was submitted that X needed support to meet his needs and therefore that the amounts claimed by the applicant for financial support by way of adult child maintenance from the respondent was necessary.
In the context of this case, Counsel for the applicant submitted that what was necessary was maintenance to meet day to day expenses and also the expenses that arose because of X’s disability as claimed by his client.
Counsel for the applicant urged the Court to reject the respondent’s argument that as X had around $85,000 in the bank that his client could not succeed. Counsel for the applicant referred the Court to the evidence where each of the parties (separately) agreed that this money had been ‘capital’ for X when they could no longer provide for him. It was submitted that this evidence should lead the Court to rejecting the above mentioned argument made on behalf of the respondent that the applicant had not met the onus to demonstrate that maintenance was necessary because of X’s disability.
Counsel for the applicant took issue with submissions made on behalf of the respondent that the Court should not make an “open ended” order for payment of any adult child maintenance order and pressed the Court to do so. Counsel also submitted any order should be made payable from the date of the filing of the application.
Finally Counsel for the applicant resisted any order made by the Court being made payable to State Trustees and pressed for an order that any payment to be made be made payable to his client.
Respondent’s submissions
In final submissions before the Court and by pointing to the applicant’s own evidence, Counsel for the respondent submitted the Court could not be satisfied the expenses claimed by the applicant were necessary because of X’s disability. It was submitted this was the case as it was clear that the applicant relied on Mr A to prepare her court paperwork and because many of the expenses that were chosen by the applicant were transparently for the applicant’s own purposes rather than because of X’s disability.
Counsel for the respondent noted there was not “a smidgeon” of medical evidence to support the applicant’s claim that X’s expenses were necessary because of his disability. Counsel for the respondent stressed this point, in particular, in relation to the claims made by the applicant for the cost of speech therapy.
Counsel for the respondent pointed to the absence of the State Trustees from these proceedings and asked the Court to infer from this that X’s administrator appointed by VCAT had taken the position that money from her client was not necessary because of X’s disability.
By reference to a number of authorities Counsel for the respondent reiterated that the maintenance must be necessary as distinct from desirable and submitted there was not “a smidgeon” of evidence even accepting the applicant’s evidence that the expenses claimed were ‘necessary’ as opposed to ‘desirable’.
It was submitted the application was in reality a spousal maintenance claim by the applicant “cloaked” as an adult child maintenance claim.
It was submitted the applicant’s own evidence and the history of her attempts to take control of X’s money (which lead to VCAT appointing an administrator) all told against the Court being satisfied the application was being pursued for a proper purpose and that the maintenance was “necessary for X” because of his disability.
In any event it was submitted there was no real and reliable evidence of what the expenses were and whether they were necessary because of X’s disability. It was submitted this was the case particularly where the applicant admitted in cross examination it was her partner who really knows what their expenses were. Counsel for the respondent reiterated it had been and remained the respondent’s position that any maintenance wasn’t necessary because X had around $85,000 in the bank. However in final submissions Counsel for the respondent submitted if the Court was satisfied maintenance was necessary her client should only be required to meet that cost in the amount of $8,000 per year for 3 years and any order should not be backdated.
Finally Counsel for the respondent did not oppose that in the event an order was to be made that any such payment should be made payable to State Trustees on X’s behalf rather than the applicant. It was submitted this was preferable as the applicant could not be trusted with X’s money.
Approach to application for adult child maintenance
Part VII of the Act deals with the law relating to children. Division 7 of Part VII deals with child maintenance orders in particular.
Section 66B of the Act sets out the objects of the Division 7 of the Part VII of the Act. The principle object is to ensure that children receive a “proper level of financial support from their parents.” More particularly the Court is to ensure that children have their “proper” needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents; and that parents share “equitably” in the support of their children.
Section 66C of the Act places the primary duty of maintaining children upon the parents of those children. This duty has priority over all other commitments a parent has other than those commitments necessary to support him or herself or any other children he or she has a duty to maintain.
Section 66L(1) of the Act deals with the maintenance of children aged 18 years and over and provides as follows:
“(1)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.”
The Court is directed not to make a child maintenance order, in respect of a child over 18 years of age, unless the required conditions are satisfied.
The approach the Court must take in assessing an adult child maintenance order is set out in section 66H of the Act. It is essentially a two-step process. The Court must consider the level of financial support necessary for the maintenance of the child concerned.
The relevant matters to be considered are set out in specific detail in section 66J of the Act. In particular, the Court must consider the proper needs of the child concerned, bearing in mind the age of the child; the manner in which the child is being (and in which the parents expect the child to be) educated or trained; and any special needs of the child concerned.
In addition, the Court must have regard to the capacity of the child to earn or derive an income but it must specifically disregard “any entitlement of the child or any other person to an income tested pension, allowance or benefit” [section 66J(3)(b)(ii)].
The Court must also determine what contribution each parent should make to providing that financial support. The matters to be considered specifically in regards to this second step are set out in section 66K of the Act.
The Court must consider the income, earning capacity, property and financial resources of the parents concerned and his or her necessary expenses. Again, the Court must disregard any entitlement of the child concerned, or the person with whom the child lives, to receive an income tested pension, allowance or benefit [section 66K(4)].
Consideration
Counsel for both parties referred to a number of authorities in both written and final submissions before the Court. Those authorities cited included inter alia: Re: AM (Adult Child Maintenance) [2006] FamCA 351, Tuck & Tuck (1981) FLC 91-021 and Cosgrove & Cosgrove (1996) FLC 92-700. All those authorities and the submissions made in reliance upon them have been considered and, in light of the evidence, taken into account.
The objectives of the relevant provisions of the Act applicable to the determination of any maintenance to be paid by the respondent for X’s support because of his disability direct that regard be had to the meeting of his proper needs from reasonable and adequate shares in the financial resources of both his parents.
The approach taken by Carmody J in Re AM (Adult Child Maintenance) [2006] FamCA 351 which involved an application under s.66L(1)(b), is set out in paragraphs 153 and 154 of the judgment:
“153.The applicant has to show that the maintenance claimed is “necessary” having regard to the objects of Div 7 in s 66B, the proper needs and available means of the applicant, and the criteria in s 66J(2) and s 66J (1)(c) and (3)(a).
154.Section 66J requires three exclusive factors to be taken into account in ascertaining the financial cost of maintaining the child at a reasonable standard and to what extent, if any, the child in question can meet these costs from his or her own resources without seeking a contribution from anyone else. They are (a) the objects stated in s 66B, (b) the proper needs of the child, ascertained according to s 66J(2) – which identifies the age and any special needs of the child as two relevant matters – and (c) the child’s income, earning capacity (including from dormant non liquid but potentially realizable assets), property and financial resources.”[19]
[19] Ibid at paragraphs 153 and 154
This application concerns an adult child with profound disabilities who on the evidence cannot work and requires supervision.
Given the respondent’s primary position I note that in Re AM (Adult Child Maintenance) [2006] FamCA 351 it was said:
“170.It does seem extraordinary to think that even the most beneficial legislation regulating family affairs was intended to operate so as to make parents financially liable for their children over the whole of their respective lives.
171.As Barry J observed in W & W:[20]
“It cannot be the case that parents become the insurers of their children so that at any time an adult child sustains a disability, either through illness or trauma, a legal liability arises. I fully accept that in most instances in our society a moral duty is there and parents will act appropriately. However this is an entirely different situation from imposing a legal duty in such situations.”
[20] [2002] FamCA 1143 at [37]
Section 66L of the Act does provide that the Court must not make an order for the maintenance of an adult child unless it is satisfied that maintenance is necessary because relevantly in this case X has an intellectual and/or physical disability.
In Tuck & Tuck,[21] the majority of the Full Court (Evatt CJ and Murray J) said that:
“Necessary in this context means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors.”
[21] Tuck & Tuck (1981) FLC 91-021
There was no dispute that the applicant bore the onus of proof on the balance of probabilities to prove that the provision of maintenance was necessary because of X’s physical and mental disability.
The Court must be satisfied that maintenance is necessary. The Full Court in Tuck & Tuck (1981) FLC 91-021 rejected the notion that ‘necessary’ meant ‘absolutely essential’. Instead ‘necessary’ meant that the maintenance was needed by the child and that it is reasonable to require the parent to contribute having regard to the parties financial circumstances and other relevant factors. The respondent concedes the extent and nature of X’s disability and that he cannot work.
It wasn’t disputed that X had over $80,000 in savings. The applicant in her first affidavit had deposed this hadn’t been able to be accessed to cover the costs of X’s care. The evidence of both parties was this amount had been accumulated from contributions from the carer’s allowance and the disability support pension.[22]
[22] see exhibit R6, paragraph15 of Respondent’s affidavit filed 16 October 2014 and exhibit A3, paragraph 57 of Applicant’s affidavit filed 12 December 2014
The respondent maintained (in argument at least) that X’s savings of over $80,000 and the other sources of financial support (aside from the income tested pension) were matters that should be taken into account and taken together, told against the applicant’s claim of meeting the requisite standard of demonstrating that adult child maintenance was necessary because of X’s disability.
In Janine & Janine and Anor (No.2) [2011] FamCA 843 (“Janine”) Cronin J dealt with a similar argument in the context of an adult child maintenance claim at paragraphs [192] to [196]. In that case, whilst taking into account savings of $20,000 (accumulated from pension payments for the adult child in that case) it was the husband’s own evidence in that case that convinced His Honour to ignore the interest the adult child in that case had in property worth about $500,000 which had been argued was standing in the way of a finding that maintenance was necessary because of the disability.
As in Janine (supra) the evidence in this case is that X’s savings have been accrued from inter alia his pension payments which are required to be ignored. However like in Janine (supra) to simply ignore it or “pretend it is still a pension and does not exist would do an injustice.”
It is timely to recall that the Full Court in Cosgrove (supra) held:
“The guiding principle in an application for maintenance of an adult child was what in all the circumstances was reasonable. The principle did not require an adult child to divest himself or herself of all assets and capital so as to qualify for an order for maintenance.”[23]
[23] Cosgrove v Cosgrove (No.2) (1996) FLC 92-701 at pg 83,395
Given this and on the evidence before the Court, I am not satisfied the savings of over $80,000 which from the evidence are controlled by State Trustees means that the adult child maintenance is not necessary because of X’s disability. This is the case particularly having regard to the position of both parties in their evidence before the Court they had previously agreed this should be put aside for when they (either individually or collectively) could no longer provide for X.
There are however other sources of financial support that should be taken into account and they are the ISP funding, mobility and carers allowances and all up those total $47,111 per annum.
Despite the resources of the parties and notwithstanding that they were both represented it has been difficult from the evidence available to ascertain what were X’s necessary expenses as opposed to what they both said were desirable.
The applicant sought an order that the respondent make a payment to her of $51,288 per year ($4,274 per month or $986.31 per week). If his principal argument was rejected the respondent’s alternative position as articulated by Counsel was his position was an amount of no more than $8,000 per year (or $153.85 per week) should be found to be necessary.
I accept the criticism made of the applicant’s case by Counsel for the respondent about the absence of medical evidence that the expenses claimed by the applicant were necessary because of X’s disability.[24]
[24] Whilst the applicant tendered a letter dated 8 February 2015 from (omitted) Speech Pathology marked as exhibit A6 the letter of itself can’t be taken to be proof of the contents or admissible as medical evidence substantiating the same.
To meet X’s indirect costs there is available $2,317 by way of mobility allowance $3,673 by way of carers allowance and $41,122 being the funds available through the ISP. The evidence is the ISP funding would cover the cost of X attending courses each week day and I find “the picture of overwhelming need” created by the applicant’s most recent affidavit reflected the choices she had made about particular courses rather than demonstrating those necessary because of X’s disability.
The applicant’s calculations at times didn’t refer to or take amount of the existence of the carer’s allowance or factor in the ISP funding. Counsel for the respondent performing only rudimentary calculations obtained an admission from the applicant that when the mobility and carers allowance was added to the ISP funding the scale of the shortfall she complained of was not demonstrated.
I accept the criticism made in submissions by the respondent that the applicant’s claim for indirect expenses include the costs of her personal supervision and a ‘nominal wage’ for her assistance and supervision of X and is not made out where the applicant has failed to demonstrate why those are necessary because of X’s disability. Moreover the estimate of and explanation for additional costs at paragraphs 58 to 73 of the applicant’s most recent affidavit reflects desirable choices made unilaterally by the applicant, rather than costs demonstrated on the evidence as necessary because of X’s disability.
Where the applicant bore the onus of proof and the respondent disputed those amounts the responsibility fell to the applicant to demonstrate to the requisite degree those were necessary (as opposed to desirable on her part) because of X’s disability and in large part she has not done so.
On the evidence I accept it is possible to characterise the applicant’s current expenditure and claims in this adult child maintenance application as being unreasonable, unjustifiable or excessive.
The applicant in her first affidavit had estimated X’s basic living costs at $29,401.[25] In her second affidavit the applicant deposed to those amounts being $34,736.
[25] See annexure B3
The applicant’s affidavit detailed the asserted X’s day to day and financial needs. Final submissions made on behalf of the applicant proceeded on the basis of those asserted needs. However the applicant’s own evidence didn’t demonstrate that those asserted needs were necessary because of X’s disability. Instead, the evidence was these were desirable from the applicant’s point of view.
The applicant’s breakup of expenditure in her household was challenged by the respondent. The respondent maintained he did not agree with the applicant’s estimates of both the day to day and other expenses. The respondent’s calculations of the day to day needs were set out at Annexure B-2 to his affidavit sworn 9 January 2015. The respondent set out his analysis of X’s living expenses on an annual basis as against those calculated by the applicant as follows:
X's Expenses
Applicant’s Estimate Respondent’s Estimate Food 7,176 4,160 Household supplies 624 624 House repairs 3,744 0 Gas 312 50 Electricity 1,144 100 Heating fuel 624 50 Telephone 832 480 Motor Vehicle - 0 Petrol 676 200 Maintenance 312 312 Fares/car parking 104 104 Clothing and shoes 1,300 1,300 Children’s activities - 0 Child minding 3,744 3,744 Medical, dental and optical 468 468 Entertainment and Hobbies 1,092 1,092 Holidays 1,612 1,612 Education expenses - 0 Chemist/pharmaceutical 156 156 Gardening/Lawn mowing 936 0 Cleaning (house/pool) 1,612 200 Repairs – furnishings and appliances 104 104 Dry cleaning 780 100 Books and magazine 208 208 Gifts 208 208 Hairdressing, toiletries 468 300 Rates 520 0 Home insurance 1,196 0 Pet food/insurance/vet 468 0 Private Health cover 1,664 200 Homewares and household furnishings 1,664 200 Tax preparations - 0 Gym and personal training 624 624 Bus exp - 0 Motor vehicle registration - 0 Motor vehicle insurance 364 0 34,736 16,596
In relation to the itemised living expenses set out in the above table I am not satisfied the amounts claimed for house repairs, gardening, lawn moving, rates home insurance, pet food, pet insurance/vet expenses or motor vehicle insurance are necessary because of X’s disability.
Whilst the applicant in her evidence and in submissions made on her behalf said she had provided the respondent with documentation for claims of $7,176 for food, $312 for gas, $1,122 for electricity, $624 heating fuel, $832 for telephone, $676 for petrol, $1,612 for cleaning, $648 for hairdressing/toiletries, $1,664 for private health cover $1,664 for homewares those amounts were not adequately explained.
On the basis of the evidence of the parties, including the concessions made during cross examination the Court accepts the expenses identified by the respondent as necessary for X. When the amounts conceded by the applicant in cross examination as not necessary are removed from the table the differences between the parties over X’s basic expenses are narrowed considerably.
The respondent’s calculations (which I accept as an admission against interest) otherwise differed from those of the applicant in quantum by just under $11,000 per annum. Given on either parties case, there was a fair degree of estimation, in the circumstances I find the shortfall to be $350.00 per week.
There is a need to ensure that X’s proper needs are met from reasonable and adequate shares in the income earning capacity, property and financial resources of both his parents who should share equitably in his support and that this duty has priority over all commitments of the parents, other than commitments necessary to enable the parents to support themselves and is not affected by X’s entitlement to any income tested person, allowance or benefit.
The respondent’s financial situation is very much better than that of the applicant. The respondent has a very substantial income stream and his wife also works and earns a significant income. Whilst it is true the respondent was unemployed, he now works as a (occupation omitted) earning $4,934 per week along with a recent bonus of tens of thousands of dollars. Whilst the respondent has significant expenses the fact is $2,124 per week is spent in his household towards the support of children of his second wife who he has no legal obligation to support.
The applicant’s position is much more difficult to work out. The applicant’s household on her own evidence is supported by her de facto partner, Mr A. Moreover in light of the evidence given by her in cross examination, the monies the applicant can and does get access to from her partner are determined by Mr A. However on any estimation her financial resources are more limited than the respondent’s. There is however evidence that indicates the applicant is failing to use her income earning capacity to its full potential.
Whilst resisting the applicant’s claim on the basis that an order is not necessary the respondent’s Counsel seemed to concede during final submissions that some order but only in the amount of $8,000 per year should be made. Whilst this may be an amount calculated by reference to the respondent’s estimate of X’s expenses and providing for an equal division or sharing of the responsibility for same, that was not made clear in submissions.
The applicant had sought that the respondent pay 2/3 of the costs due to the difference in earning and income capacities and allowing for costs “already incurred” by the respondent. Given the findings made earlier
I am prepared to accept the costs should be shared on that basis. Accordingly, taking into account that X spends some time with the respondent it would be proper to require the respondent to contribute just under $12,000 per year or $230 per week towards X’s financial support. Given the evidence regarding the respondent’s earning capacity I am satisfied he has the capacity to make that payment.
Next there are the issues that the applicant sought an order for a payment from the respondent to her and that any order be backdated and for that payment to continue indefinitely. The respondent opposed an indefinite order and any order being made payable to the applicant.
Counsel for the respondent maintained any order should be limited to a maximum of 3 years, should not be backdated and should be payable to the State Trustees for X’s benefit and not to the applicant (given concerns the respondent had about the applicant’s previous attempts to access money belonging to X). This was a form of possible order raised by the Court with the parties and one on which they each had an opportunity to be heard. It will be necessary to return to this issue.
In submissions before the Court Counsel for both parties referred to the Full Court decision in Everett & Everett [2014] FamCA FC 152. That case concerned inter alia an appeal on grounds of alleged error for failing to place a temporal limitation on an order for adult child maintenance and a cross appeal alleging error in not backdating the order.
In relation to the first of the matters referred to above the Full Court said:
“Asserted error in absence of limitation or conditions
56.At [33] of these reasons, we have already set out the terms of s 66L(1). Importantly that section does not provide for a temporal limitation to be imposed on an order for adult child maintenance, but plainly, the court needs to be satisfied on the evidence before it that the maintenance ordered is necessary to enable the child to complete his or her education, or because of a mental or physical disability of the child.
57.A number of earlier decisions both of single Judges and Full Courts of the Family Court of Australia have considered the necessity, as distinct from desirability, of making adult child maintenance orders that have a definite expiration, either by reference to a specific date or event. Tuck & Tuck (1981) FLC 91-021, the Full Court was concerned with an appeal against the refusal to make any order for the adult child maintenance of two children. In the course of their joint reasons Evatt CJ and Murray J said at 76,227:
The position is that S. was due to complete her basic degree in 1978, while P., had he continued with his original course, would have completed his degree in 1980. We do not think it just to compel the husband to pay maintenance for any longer than is required to enable the children to complete the basic university degree which they are undertaking at present. If that were done, the husband would have done his duty by the children. We do not consider that the husband should have to maintain S. so that she can obtain a higher degree. Nor should he have to contribute to P’s. maintenance to enable him to do a combined course...
58.The decision of the Full Court in Henderson and Henderson (1989) FLC92-011 is often cited in support of the proposition that in making an order for adult child maintenance the court is not limited to only the duration of one course of education. However, that proposition needs to be read in the context of the facts of that case. There, an adult child had already completed one course of education, but had been unable to obtain employment in the field for which that training had notionally equipped her, and accordingly sought adult child maintenance for a second course. The majority of the Full Court held that it was open to the court to make an order providing for adult child maintenance for the duration of that second course of education. However, as is plain, it was not suggested that the maintenance should be able to continue beyond the completion of the second course of education, and in that context the Full Court indicated that “[t]here must, of course be an end to a parent’s obligation to support an adult child undertaking courses of education, but given the circumstances of the present case, we think that it was well within her Honour’s discretion to make the order that she did.” (at 77,030).
59.We were referred to a single Judge decision of Myrtle & Myrtle[2012] FamCA 460, not as containing any relevant statement of principle, but rather as an example of the sort of order which it was contended ought perhaps have been made here. In that case the relevant order provided:
The payments in Order 25 will cease upon:
(a)MM commencing full-time employment; or
(b)in respect of any period exceeding six (6) months when MM is not habitually residing in the Wife’s residence; or
(c)the discontinuance of MM’s enrolment at TAFE or university; or
(d)MM failing to pass two or more subjects in one semester forming part of his tertiary study course requirement; or
(e)MM being absent from tertiary study for a period of longer than four months; or
(f)the day on which MM marries or commences residing in a de facto relationship; or
(g)1 February 2015;
whichever is the earlier.
60.There is nothing to preclude a Court, either at the time of initially dealing with the application for adult child maintenance, or subsequently in dealing with a further application, from making a maintenance order for either a then positively identified, or alternatively only merely possible, second course of higher education. However that said, in either case the Court would still need to be satisfied on the evidence that the provision of the maintenance is necessary to enable the child to complete that education.”
However the Full Court then went on to consider the decision at first instance and said:
“63.At [89] to [92], the Federal Magistrate clearly identified that the intention of framing the order to conclude upon the completion of K’s tertiary education was to provide support to her until such time as she was able to be employed using her university studies. However, that is not required by s 66L and cannot provide a legitimate reason for framing the order as her Honour did. Further, her Honour does not appear to have adverted to the potentially indefinite operation of her orders, or considered whether such an order was just and reasonable. Nor has her Honour identified the evidence before her that satisfies the requirements of s 66L. Her Honour also does not appear to have recognised that minimum workloads and satisfactory progress might ordinarily be considered as matters requiring attention in adult child maintenance orders intended to enable a child to complete their education, or to have explained why any such conditions were not, on the particular facts of the case, included in her orders. In our view, those are matters which it was incumbent upon
her Honour to expose in her reasoning. Moreover, her Honour’s expressed preference for the “phrasing used by the mother” in the formulation of her orders suggests that perhaps her Honour was of the view that differences between the competing proposals were only semantic. They were not.…
69.Although the clear purpose of her Honour’s orders were to ensure that K’s needs were met until she became qualified for employment, which of itself could not be said to be unreasonable or unjust despite not being the relevant test or the required focus under s 66L, the difficulty is that the orders were not cast in a way which protected the father from an indefinite timeframe in which that outcome might – or might not – be achieved. Under the orders, so long as K could be said to have not yet completed her tertiary education – a term which itself is notably imprecise – the father’s obligation to pay adult child maintenance continued. Such orders are unjust and unreasonable, and not a proper exercise of the discretion, which thereby miscarried.”
In this case Counsel for the respondent referring to inter alia the Full Court’s decision extracted above and the statements in Re: AM Adult Child Maintenance (2006) FLC 93-262 at paragraph [68] submitted any order should be limited to no more than 3 years. It was submitted given the situation of the parties, the vagaries of life for both the parties and X, that it would be unreasonable to do otherwise. Counsel for the applicant argued against such an order it appeared only on the basis that it may require the parties to come back to Court.
Whilst both parties have the ability pursuant to s.66S of the Act to seek a modification of the orders if circumstances changed to justify the variation I note the comments in Re: AM Adult Child Maintenance (2006) FLC 93-262 at paragraphs [169]-[178] and in particular at paragraph [177] that ultimately the touchstone is fairness.
Ultimately I am persuaded an order limited to a maximum of 3 years is fair, appropriate and proper given the limited evidence as to what is necessary for X because of his disability and the evidence such as it was as to the situation of the parties at the present time and the proceedings before VCAT appear to be ongoing and will be reviewed again there later this year.
Turning then to the issue of backdating any order the Full Court in Everett (supra) having considered the reasons for not doing so at first instance said of the alleged error in failing to do so (raised by the cross appeal in the matter before it) that:
“120.The time for the commencement of the order was clearly a matter of discretion. We agree that there is no error of principle demonstrated on the face of her Honour’s reasons. Moreover, as is plain from Norbis & Norbis[1986] HCA 17; (1986) 161 CLR 513, appellate interference with the exercise of a discretion of the kind in question here is quite circumscribed. Whether or not to back date an order is precisely the sort of matter upon which “different minds might reach widely different decisions without either being appealable”. We are not persuaded that the refusal to back-date fell outside “the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”.
In this case the respondent resisted any order being backdated by inter alia reference to the absence of an express provision allowing for it in the relevant sections of Division 7 of Part VII of the Act and the Full Court’s decision referred to above. The applicant’s claim in this regard didn’t appear to change from the form of order sought in the amended application to the contentions made in final submissions. Ultimately it was submitted by the applicant that any order should be backdated to the date of filing the application.
Therefore having weighted the applicant’s obligation to support X financially and that she has done so without financial support from the respondent since the end of 2012; the time between the filing of the application; and orders made as a result of these reasons and that on the evidence the Court accepts (not all) the applicant has expended was necessary because of X’s disability, I am persuaded it is nonetheless proper and necessary for an order backdated to the date of filing the application. I am satisfied the amount found as necessary above and capitalised is an appropriate order. Accordingly there will be a separate order to that effect. The order for the provision of adult child maintenance for X will be backdated to the filing date of the application.
The respondent is to pay the back pay by way of a lump sum within
28 days of the date of this order and thereafter pay $230.00 per week to an account nominated by the applicant for 3 years from the date of the orders.Finally on the issue of to whom any payment ordered should be made whilst the VCAT orders appointed State Trustees as administrators of X’s estate this was save for the pension and mobility allowance. The respondent’s evidence is the applicant cannot be trusted with X’s money. However this application is brought against the respondent because of the applicant’s claim that X’s proper needs, because of his disability, are not being met from reasonable and adequate shares in the income earning capacity, property and financial resources of both his parents. If an order was for the payment to be made other than to the applicant, it would conceivably see State Trustees being able to deduct a fee for managing any such money and I bear in mind the evidence of the applicant about her concerns regarding its impact on X’s pension. In those circumstances it would be churlish to order the payments made to the State Trustees and I decline to do so.
Conclusion
Section 66G of the Act states:
“In proceedings for a child maintenance order, the Court may, subject to this Division, make such child maintenance order as it thinks proper.”
For the reasons set out above I am satisfied the orders set out at the beginning of these reasons for decision are proper and should be made.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 16 April 2015
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