Blackwood and Blackwood

[2017] FCCA 1887

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLACKWOOD & BLACKWOOD [2017] FCCA 1887

Catchwords:
FAMILY LAW – Parenting – application for adult maintenance – child diagnosed with Asperger’s syndrome/autism – adult maintenance ordered.

Legislation:

Family Law Act 1975 ss.66B, 66H, 66J, 66K, 66L

Applicant: MS BLACKWOOD

Respondent: MR BLACKWOOD

File Number: DNC 572 of 2015

Judgment of: Judge Young

Hearing date: 25 & 26 July 2017

Date of Last Submission: 26 July 2017

Delivered at: Darwin

Delivered on: 26 July 2017

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr Supljeglav

Solicitors for the Respondent: DS Family Law

ORDERS

1. The respondent father pay adult child maintenance to the applicant mother for the child, [X] born (omitted) 1998, in the sum of $90.00 per week for any week when the child is not in full-time or part-time employment.

2. The maintenance payable pursuant to these orders continue until the child attains the age of twenty-five (25) years.

3. The respondent father pay to the applicant mother adult child maintenance in the sum of $2,340.00 as payment in arrears.  

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Young delivered this day will for all publication and reporting purposes be referred to as Blackwood & Blackwood.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 572 of 2015

MS BLACKWOOD

Applicant

And

MR BLACKWOOD

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.   

2. This is an application for adult child maintenance for [X].  [X] is 19 years old.  He regrettably suffers from a number of serious disabilities.  That is not in issue.  He suffers from Asperger’s syndrome.  He has autism.  It appears from time to time he suffers from depression and he suffers, also, from dyslexia and he suffers from some other, as I understand it, physical disabilities, scoliosis and Poland syndrome.  As I understand it, those latter two disabilities have not affected his ability to earn an income. 

3. Nevertheless, the other matters have, it appears, loomed reasonably large in [X]’s life.  He left school two years ago and he has not had a permanent full-time job since leaving school.  He has been given every encouragement, I am satisfied, by both his mother and his father to obtain gainful employment.  I am satisfied that his father and his mother have done their utmost to equip [X] for full-time employment and I am also satisfied that, at some point, [X] will obtain full-time employment.

4. However, the history over the past two years is that he is at some disadvantage in the labour market.  There was evidence that he had attended work experience programs at least in two places.  One with Mr H who runs a (omitted) company here in Darwin and the other with Mr P who runs, as I understood it, an (omitted business).  Both of those men are on friendly terms with Mr Blackwood and I am satisfied, and it was not really in dispute, that they were sympathetic to [X]’s situation and took him on for work experience in the case of Mr H and for a relatively short period of employment by Mr P. 

5. Both Mr P and Mr H spoke very highly of [X], of his abilities and his aptitude and were, I thought, impressed by him on a personal and employment level.  That was not in issue.  However, those matters need to be seen in the context of the evidence from Professor A who is a clinical psychologist who has expertise in diagnosis and treatment of Asperger’s syndrome and autism.  Professor A produced a report which is dated 4 April 2016 but he gave evidence before me today and was cross-examined. 

6. His evidence was not challenged.  His evidence is – and I read from his report:

   [X] has a diagnosis of Asperger’s syndrome, an autism spectrum disorder, level 1.  He also has scoliosis and Poland syndrome as well as signs of episodic depression.  He also has specific learning difficulties but does not have an intellectual disability.  He has a very uneven profile of abilities which includes great attention to detail and a natural talent in manual arts.  In years gone by, he would have been viewed as a craftsman.  I would add that he is a very emotionally sensitive person who has a strong sense of social justice. 

   [X] has the ability to obtain gainful employment but my clinical opinion is that this would need to be at reduced hours rather than full-time employment.  I think this is due to the amount of energy depletion that he has in coping with the work environment and it would be wise for him to have part-time employment.  Over time, that is, within a few years he may be able to progress to full-time employment but only when he less drained by the work situation.  

   He is eventually likely to live independently from his parents but I suspect this would probably be in his mid-twenties.  The financial support that he will need is in terms of not being able to provide full-time employment income thus his parents will need to provide support for him in some aspects of his daily living for a number of years. 

7. Those latter comments are perhaps more comment than expert opinion but the expert opinion, which I accept, is that for some years [X] is not likely to be able to live (a) independently or (b) with the certainty of permanent full-time employment.  That evidence was not challenged and I accept it.

8. The truth of Dr A’s opinion, I think, was seen in the experience of [X] since leaving Darwin.  He left Darwin to live with his mother on the Sunshine Coast in December 2016 or January 2017.  Initially, he found a job at a firm called (omitted).  That was with a view to obtaining a (omitted) apprenticeship.  That work lasted only about four weeks.  It is a little unclear precisely what went wrong but part of it may be that [X] was required to live away from home for some period and, as Professor A pointed out, he did not think that [X] successfully living away from home was necessarily going to happen just yet, although it would happen in the future. 

9. For whatever reason, I am satisfied that despite his mother’s best efforts to obtain [X] work in line with [X]’s wishes, and he has an interest in (omitted) apprenticeship or (omitted trade), it was not possible for [X] to stick with that employment.   

10. There was evidence that [X] is enrolled with an employment service provider, (omitted), on the Sunshine Coast.  They are an employment service provider.  I am not sure precisely what they do but it is said they have experience in helping people with disabilities obtain employment.  There was a report in evidence or, at least, correspondence in evidence from them which suggested that they were reasonably confident that [X] could find employment on the Sunshine Coast as a driver. 

11. In support of that, [X] obtained a licence that was described as a “medium rigid licence” (which, I understand, is a licence to drive trucks or vans) on his second attempt. The report from (omitted employment service) suggested that, given some support and particularly if [X] was to be given a driving route, if I can call it that, which was routine, that he could remember, so that he was not reliant upon reading street signs, for example, and, as I mentioned, he is dyslexic so apparently he has some reading difficulties, they thought that they would be able to find him a job. 

12. That was largely consistent with Professor A’s view.  He thought that the job that Mr H described, for example, that is being at sea for prolonged periods could well be problematic because [X] does need solitude.  Professor A said that he was familiar with people who had joined the navy with the same condition as [X] and the confined spaces became a bit of a problem.  It might be, of course, that [X] could have found a job with Mr H that involved him having accommodation of his own but precisely what would be available there was a little bit unclear.  I do accept what Professor A says and I accept that a job at sea for [X] might not work out in the long term because of his disabilities. 

13. The overall situation is that I am satisfied that [X] has a diminished earning capacity.  He has an earning capacity and there is no doubt that there are all sorts of jobs that he can do but there are also many jobs he cannot do because of his disability.  The fact is that he has not held a permanent full-time job since leaving school some two years ago, despite what I am satisfied are the best efforts of his parents to encourage him and support him, to me indicates the very nature of the problem.

14. The applicant, the mother, seeks an order for adult child maintenance. The principles to be applied are set out in Division 7 of Part VII of the Family Law Act 1975. The objects of the part are set out in section 66B. They are that the children have their proper needs met from reasonable and adequate shares in the income-earning capacity, property and financial resources of both of the parents and that parents share equitably in the support of their children. These are principles relating to children whether infant or adult.

15. In relation to the matters to be taken into account, section 66H sets out the approach to be taken in child maintenance proceedings. The Court must consider the financial support necessary for the maintenance of the child and 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. Section 66J expands on that and says in addition to the matters I have mentioned, that the income-earning capacity, property and financial resources of the child are to be taken into account. The Court must have regard to the age of the child, the manner in which the child is being and in which the parents expected the child to be educated or trained and any special needs of the child.

16. Under section 66J(3) the Court must take into account the income earning capacity, property and financial resources of the child, the child’s capacity to earn or derive income, any assets under the control or held for the benefit of the child capable of producing income and disregard any, in summary, pension. The matters set out in section 66K are also to be taken into account and include the income earning capacity, property and financial resources of the parties, commitments of each party to maintain himself or herself or any other child or another person that the person has a duty to maintain and direct and indirect costs incurred by the parent in providing for the child and any special circumstances which, if not taken into account, would result in injustice or undue hardship.

17. The other matters relate to subsections 66K(2),(3) and (4). I also take into account subsection 66K(5) which says that payments of periodic maintenance must be considered, in substance, in priority to other forms of maintenance, lump sums and so on. Section 66L deals, in particular, with children who are over 18 and subsection 66L(1) says 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 to enable the child to complete his or her education or (b) because of a mental or physical disability of the child. Subsection 66L(2) in substance, repeats that requirement.

18. I am satisfied that [X] has a mental or physical disability and I am satisfied that because of that mental or physical disability the provision of maintenance for [X] is necessary.  In my view, the provision of maintenance is necessary during periods when [X] is not employed full-time or part-time.  In other words, when he is living with his mother and, apparently, entirely dependent on his mother, that is, when he has no income of his own.  I am satisfied that some maintenance will be required during those periods.

19. I am also satisfied that, having regard to [X]’s disability, that he is likely to suffer periods of unemployment.  He is unemployed at the moment.  I think it is likely he will obtain employment at some time. Whether or not the (omitted) experience is repeated I do not know.  I would hope not.  I would hope that, given a job at home where he can live with his mother on the Sunshine Coast, that his prospects of employment are pretty good.  Nevertheless, I am also satisfied that there is a probability that there will be periods when he cannot work because of his disability.   

20. The evidence is that both parties are earning approximately the same income.  The father’s estimate of his taxable income for the last financial year 2016/17 is around $111,000.  He is a (occupation omitted) and his income fluctuates but, nevertheless, that is an estimate of his earnings for the last financial year.  He gave evidence that due to a downturn in the building industry in Darwin, he is likely to earn considerably less than that this financial year.  He says $75,000.  I am not sure I accept his evidence about that.   

21. He gave evidence that there was a significant contract he had been awarded to (omitted) in the (omitted) which should go ahead subject to him sorting out some difficulties with some of the (omitted) and approval from the Shire.  I have no doubt that Mr Blackwood will sort that out and commence (omitted) soon.  I asked him what the profit component was and he professed not to know.  Particularly in view of that answer, I am satisfied that there is no evidence to suggest that Mr Blackwood’s income for the future is likely to be any less than his income for the 2016/17 year. 

22. I might say that his taxable income in the 2015/16 year was about $156,000.  In any event, as I say, the best evidence of the taxable income for the parties over the past financial year is, in both cases, around $111,000 or $112,000, in the case of the mother.

23. It was also said that I should take into account that two children live with the father, [M] and [N].  [M] is an adult.  [M] is employed full time.  [M], as I understand it, also has some problems but he is employed full time.  He pays his father board.  I see no reason to think that [M]’ position is particularly relevant in this matter.  [N], who is 16 if I recall, is a student.  He is also doing some part-time work, I gather, and adds to his pocket money.  [X] who is 19, as I mentioned, and [Y] who is the youngest child, live with the mother on the Sunshine Coast.  [Y] is 13 or 14. There was disagreement about his age but ultimately, I think it was settled that he was 14.

24. It was suggested that in assessing the question of adult maintenance, I need to take into account Mr Blackwood’s obligation to support [N] and I do so.  It would also follow that I have to take into account Ms Blackwood’s obligation to support [Y].  In fact, there are child assessments which have operated one way or another against both parties.  It turns out that Mr Blackwood, while at present he appears to have a child assessment in his favour, says that he has not actually sought payment of that money.   

25. The child assessment was based on his assessment of income of $75,000 a year.  That based on his recent tax return prepared by his accountant, will be reassessed by the Child Support Agency and there will be, I imagine, an order that a child assessment that is approximately equal or perhaps even in favour of Ms Blackwood.  I cannot speculate about that but I do take into account that both parties are responsible for other children.

26. The extent of the maintenance necessary for [X] is in dispute.  The mother suggests that she spends $166 a week on food for [X].  I find that hard to accept and she has various other assessments, particularly in her financial statement relating to her claimed cost of supporting [X], at $715 a week.  Many of those items in part (n) of her financial statement were inconsistent with evidence in her trial affidavit and also inconsistent with the evidence she gave orally. 

27. As examples, she suggested that the medical expenses for [X] were $33 a week and pharmaceuticals were $15 a week.  She suggested that attendances on a psychologist would be $32 a week and the doctor $17 a week.  Those items add up to $97 a week.  In submissions, when I asked for the basis of those amounts, a somewhat different picture emerged.  The cost of medication appears to be about $5 a week in future and, in the past, about $7.50 a week as [X] was changing medication.  This is prescription medication. 

28. [X] is suffering from depression at the moment and there has been a mental health care plan obtained from a general practitioner which will see [X] attending on a psychologist, Ms Y. 

29. After allowance for Medicare rebate and possibly private healthcare, it seems that the weekly cost of that is no more than $12.50 a week.  Apparently there are general practitioner visits as well, the cost after rebate being $40 a month.  That is about $10 a week.  There have been two visits to a psychiatrist this year where the gap was $38 each time.  I am not satisfied that the expenses in part (n) of the mother’s financial statement are accurate.  They do not purport to be estimates.  The purport to be the actual figures and I do not accept them.

30. As far as I can see, making the best estimate I can given what I consider to be inaccurate evidence, I think that the weekly costs of maintaining this child are in the region of, for food, probably about $100 a week; medication and health insurance, assuming a third of the mother’s private health insurance is attributable to [X], $25 a week; psychologists visits, on average, $12.50 a week; GP perhaps $10 a week.  I consider that the necessary costs are in the region of $185 a week.

31. It was submitted that I should make provision for the indirect costs relating to provision of a home, that is, the mortgage costs and so on.  I am not satisfied, in the circumstances of this case, that I should do that.  The purchase of a home on the Sunshine Coast by the mother was as a result of her decision to relocate to the Sunshine Coast from Darwin and I consider that she would incur those expenses in any event.  I think, with adult child maintenance, some slightly different factors apply to infant child maintenance and I think the necessary costs really relate to those that are attributable to the child’s disability.  I think the costs attributable to the child’s disability are $185 a week.

32. It was suggested that there ought to be provision for the construction of a safe room in the home as well, as was the case in the former matrimonial home but, as was clear from Professor A’s report, he made that recommendation many years ago in 2009 as a result of conflict between [X] and his older brother, [M]. I am not satisfied that those conditions apply any more so I will not make any order in respect of that. 

33. Given that both parties are earning approximately equal amounts, I am satisfied that the amount necessary for the maintenance of [X] is in the region of $185 a week.  I will make an order for $90 a week.

34. There is a claim for arrears. I will make an order for the preceding 26 weeks in the amount of $2,340.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 9 August 2017