Curry and Roscoe

[2018] FCCA 2779

FEDERAL CIRCUIT COURT OF AUSTRALIA

CURRY & ROSCOE [2018] FCCA 2779

Catchwords:
FAMILY LAW – Application for adult child maintenance – child suffering various difficulties – child in receipt of disability pension – child accepted into National Disability Insurance Scheme – father asserting child able to work and support himself – mother denying – whether provision of maintenance necessary because of mental and physical disability – whether father able to pay in any event – order made for maintenance for three years.

Legislation:

Family Law Act 1975

Applicant: MS CURRY

Respondent: MR ROSCOE

File Number: DGC 2536 of 2009

Judgment of: Judge Burchardt

Hearing date: 13 September 2018

Date of Last Submission: 13 September 2018

Delivered at: Dandenong

Delivered on: 12 October 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Hall

Solicitors for the Respondent: Pearce Webster Dugdales

ORDERS

1. In respect to the child [X] born 1999. the respondent father pay adult child maintenance in the sum of $200 per week for three years from the date of this order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

No. DGC 2536 of 2009

MS CURRY

Applicant

And

MR ROSCOE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an application for adult child maintenance made by the applicant mother in respect of the child, [X], born 1999.  The mother seeks that the father transfer to her a block of land in Location A of which he is the registered proprietor, or alternatively that he pay $250 per week in adult child maintenance, such payments to continue indefinitely.  The respondent father says that the applicant has not satisfied the Court that the provision of maintenance is necessary because of any mental or physical disability on the part of the child, [X].  It is his position that [X] is well capable of working.  Further, he says that he is not in a position to pay adult child maintenance in any event.

2. For the reasons that follow, I think that the father should pay adult child maintenance in respect of the child in the sum of $200 per week.  This payment should continue for a period of three years. 

Agreed or uncontested relevant matters

1. Most unfortunately these parties have been involved in serial litigation over many years.  There was a first tranche between 2004 and 2006, a second tranche from 2009 to 2010, and now we have the application filed by the mother on 23 October 2017.  It is clear from the nature of the materials filed by the mother in this proceeding that she remains keenly engaged with the subject matter of the earlier litigation, which in part this litigation is designed to repeat.

2. The mother was born 1970 and is in receipt of a carer’s payment and allowance and family tax benefits.  She has been [X]’s carer for many years.

3. The father was born 1970 and is self-employed in his own (omitted) business, Company A. 

4. The commencement of the relationship between the parents is not, so far as I can see, precisely denoted, but according to the mother’s first affidavit, they met in 1990.  Their first son, [C], was born 1997 and [X], as already indicated, 1999.  They married 2003 but separated towards the end of 2004.  They were formally divorced in 2010.

5. In July 2006, relevantly, final property orders were made.  These were not, on the face of it, ungenerous to the mother, who received $130,260 with the father receiving $38,240. 

6. The mother has complained about underpayment or non-payment of child support, and it is clear that there have been numerous child support proceedings between the parties.  In her first affidavit, the mother asserted that the husband’s annual income was $57,988 (in oral evidence, the husband indicated that his tax return for the year 2017 to 2018 reveals an income of $67,000).  [X] is in receipt of a disability support pension, and has recently been accepted into the National Disability Insurance Scheme (“NDIS”), although it has not yet known what assistance this may provide to him.

7. The husband lives in a flat in Location B, and [C] lives with him, owned by his parents.  It is one of a block of six flats owned by his parents.  They also own a seven-acre property in the country and a further property at Location C. 

8. I will return to deal with the land in Location A in due course.

The parties’ affidavit materials

1. The mother has filed a number of substantial affidavits.  These affidavits annexe a number of medical records in respect of [X].  The respondent father put the mother on clear notice through his solicitors that objection would be taken to the admission of any medical information that was not put on affidavit, and although the mother managed to put one doctor on affidavit, she was unable to procure their attendance at Court.

2. This being clearly a parenting proceeding, the rules of evidence do not of course apply, and the medical records to which objection has been so strenuously taken are, of course, in each instance, admissible in my view as business records in any event.  I note, however, that the weight to be given to such materials must be evaluated in the context of the lack of the opportunity to the father to have those making the records cross-examined.

3. Much of the material filed by both the mother and the father is self-serving and, in the mother’s case, seeks to re-agitate issues such as the property settlement in 2006.  I have had regard to the parties’ affidavits but it is not necessary to detail them significantly.

4. It should be noted that much of the parties’ affidavits are concerned with [X]’s drug use and criminal conduct (a number of thefts and credit card misappropriations have clearly been undertaken) and I note [X] was placed on a diversion program in September 2017, which inter alia required him to engage in a (course omitted) commencing on 18 September 2017.  It appears common cause that [X] did not complete that course.

5. Although there is some dispute between the parents as to the extent of the various medical difficulties that [X] faces, it seems unchallenged that he has (omitted) and cannot eat solids.  He also has a (omitted), such that lifting appears to be difficult for him.

6. I will return to the conflict of evidence about [X]’s difficulties in due course.

7. The only other matter I should record at this point is that in his affidavits, in addition to detailed recitations of his interaction with [X] and eventual referral to the police, the father asserts that [X] not only is capable of work but has done so with him in his (omitted) business.  This is a matter I will return to when I deal with the evidence given at Court.

8. It should be noted that a Dr J affirmed an affidavit filed by the mother on 19 June 2018.  This purports to be a medical report given in conformity with the Court’s rules as to giving expert evidence.  It is not a report without difficulty in as much as it would seem that Dr J has prepared her report on the basis of very extensive notes by the practice of which she is one of the general practitioners.  It is not clear to what extent she has had any direct interaction with [X] himself.  As indicated, she was not available for cross-examination.

The assessments made by the Department of Human Services regarding the disability support pension.

1. The mother has annexed as exhibit PCR6f to her affidavit filed 11 July 2018 what seem to me to be a fairly comprehensive series of medical assessments of at least some part of [X]’s difficulties.  The pages are not paginated but include:

   The results of the ABAS-3 show that [X]’s general adaptive functioning is within the extremely low range of functioning, as measured by the GAC. 

   [X]’s ability to function effectively at home and in the community, to engage in leisure and work and care for personal health and safety exceeds those of only approximately 0.3 per cent of individuals his age.

2. Under the heading Summary and Recommendations signed by Ms M, registered psychologist, the report notes:

   [X] is a young man who has experienced difficulties intellectually and with learning since his early school days.

   Intellectual assessment by Clinical Psychologist Ms W in May 2015 (report dated 04/09/15) indicates that [X] has Borderline intellectual functioning.

   This result combined with the results of current adaptive functioning assessment...indicate that [X] has significant difficulty meeting the demands of everyday life in a range of areas.

3. Exhibit PCR6g is a further set of documents relating to the assessment.  On page 2 of 5 it is recorded, under the heading Prognosis:

   [X] has been diagnosed with a mild intellectual disability. 

4. Under the heading Symptoms, it was recorded:

   Symptoms include extremely low adaptive behaviour, borderline range of intellectual functioning, difficulty meeting the demands of everyday life, slow processing speed, difficulty with reading, and impaired spelling and maths ability.  [X] reported symptoms including difficulty sitting in a classroom, has difficulty sitting still, reading and writing difficulty, is unable to learn by reading and writing, is slow to process information, and relies on his parents to assist with daily living.

5. In considering possible psychiatric disorder, the report noted under the heading Prognosis:

   [X] has been diagnosed with Generalised Anxiety Disorder, Persistent Depression Disorder, and Major Depressive Disorder.

6. The report noted that the condition was considered not to be fully stabilised.  The report also includes an assessment completed by Dr H, who in response to “Does your report differ from the job capacity assessment report provided with this referral?” noted, “Yes.”  The reason was:

   Left proximal radioulnar synostosis and right anterior dislocation of radial head Dysplaxia.

7. This noted that a symptom of this prognosis was interference with fine motor tasks.  It was also noted that there was

   Insufficient recent medical info re specific functional impact and management outcome.

8. In noting a face to face assessment at Location D Centrelink on 7 March 2018, the condition of intellectual disability was noted to be

   Verified by medical evidence; Fully Diagnosed;  Fully Treated;  and Fully Stabilised.

9. This noted that, “The client’s adaptive functioning fell within the extremely low range” (although I note that this assessment, in part, relied upon the Adaptive Behaviour Assessment System which was completed by the child’s mother.)  Nonetheless, the report also noted reviews by a number of paediatricians, psychiatrists, and other sources.

10. I note that a report submitted on 9 March 2018 about the elbow difficulty noted that Dr R had reported that the condition caused interference for him with fine motor tasks and noted at page 8 of 12 that there was a moderate functional impact on activities using hands or arms, and that he had difficulty with most tasks. This included picking up a one-litre carton full of liquid.

11. The report went on to suggest that there was a baseline work capacity of some eight to 14 hours per week in moderate less skilled work of which (occupation omitted) was an example, and that the rationale for this was:

    A Baseline and With intervention work capacity of eight - 14 hours/week is recommended for client based on health conditions affecting client’s intellectual functioning, social interactions, concentration and learning, ability to cope with stress and to handle/manipulate items.  With DES-ESS specialised support to identify suitable work roles and employers and provide workplace modifications if required, the client’s capacity is anticipated to remain stable at eight to 14 hours per week.

The submissions and evidence given at Court

1. What follows is taken from my notes. It is of course not a transcript, but records matters I found significant.

The opening and evidence of the mother

1. The mother indicated that the husband was the registered proprietor of the block of land in Location A that she sought be transferred to her.  She said the husband had lied about his ownership of the property in the previous property proceedings in 2006.  She confirmed that she had no doctor available to testify.  I should indicate that given that Dr J executed her affidavit as recently as April 2018, I did not find the mother’s explanations for this failure altogether convincing.  I suspect she simply did not understand the necessity to subpoena the doctor to attend.

2. The mother said that [X] has been received into the NDIS, which indicates that there must be a great need on his part.  She said the father has the means to contribute and she said that he had also contributed to [X]’s mental health issues.  NDIS will be based on [X]’s goals, which could be socialising, participation, or mobility, or self management and care.  It could be not going to hospital in ambulances.  It could be just to get out of the house.  She sought that the property in Location A be placed in [X]’s name.  She referred to difficulties with child support.  In the alternative, she sought periodic payments of $250 per week.

3. When sworn the mother adopted her affidavits and Financial Statement as true and correct.  Under cross-examination the mother confirmed that [X] was at home.  He had not filed an affidavit.  When asked why he had not been on affidavit the mother said, “[X] would find it very difficult to give evidence.  He loves his dad and would not want to hurt him.”

4. The mother noted that she had written a letter for [X] to send to the judge based on notes.  [X] cannot write and cannot use a computer.  He has severe anxiety.  The letter which was sworn on 16 July 2018 was tendered as exhibit R1.  The mother was next asked about a job at a (business omitted) that [X] had allegedly undertaken.  She said he never worked there.  There were no set times.  He would go down and help the owner, who was a friend, and be rewarded with a can of soft drink.  He was nine years old at the time and was never paid.

5. It was put to the mother that [X] had gone to the father in January 2017 and the mother said this was five nights and six days.  He was there to pay back money for a phone.  She had not asked the child if he had worked for three days and could not say if he had been paid $18 per hour.  [X] was paid some money by the family on two occasions, $250 or $300 in 2017.  He might have mowed the lawn.  [X] had talked about doing a (omitted) course in Sydney but had never undertaken it. 

6. When it was put to the mother that in his interview in March 2018 [X] had indicated that he would undertake a (omitted) course in Queensland, the mother said [X] would have said this.  He cannot go there, however, because of difficulties with food.  It was put to the mother that [X] had undertaken (omitted) work with a friend, [A], in Location E.  The mother said that [X] wants to be the same as anyone else but he had not worked in Location E at all. 

7. The mother was cross-examined about [X] attending Head Space this year.  [X] had not been told the purpose of the meeting.  [X] told the mother afterwards that the father had lied about drugs at his house.  [X] had not said he would repay $1,250 at $100 a week.  [X] was certainly not working at the time.  He has not worked at the (omitted) Golf Club.  [X] cannot go out without the mother.  She would know if he had undertaken any work.  He occasionally goes out with friends.  She would have withdrawn her application if [X] had a job.

8. The mother said [X] copies what his friends say about work.  He cannot go to Queensland.  There would be problems with food and they do not have the money.  [X] has not (occupation omitted) in Location D and never had a job in Location D.  [X] spends a lot of his time in bed.  He stays up late.

9. [X] has not smoked cannabis for a long time.  He has sometimes done so with friends.  He does not have the money to purchase it.  He receives the disability pension which he gives to the mother.  The mother has not smoked cannabis in the house.  [X] is desperate and sometimes uses. 

10. The mother admitted trying cannabis on some occasions in the past.  The mother conceded that [X] had smoked cannabis in the garage once.  This was earlier this year after he had received the disability support pension.  [X] wants to get a dirt bike but the mother opposes this.  She ceased her (omitted) business a very long time ago.

11. Correspondence from Dr J was tendered as exhibit R2.  Correspondence from the father’s solicitors indicating that witnesses were desired for cross-examination was exhibit R3.  Exhibit R4 is a letter from the Independent Children’s Lawyer.  I have read it but it is for me to judge this case, not Mr F.

12. The mother said that [X] has (physical description omitted) which means he cannot lift heavy objects.  He has a (physical description omitted).  He has no physical endurance. 

13. The mother conceded [X] has stolen from the father and has been placed on a diversion program.  He had to undertake a (omitted) course at TAFE.  He only attended one day.  He cannot use a computer.

14. The mother conceded there had been property orders in 2006.  She had bought a car with her property settlement.  She did not agree the father had made efforts to get [X] into (occupation omitted).  She has not seen [C] since he left home.  In re-examination, the mother confirmed that she has done everything she can to stop [X] using drugs.

The evidence of the father

1. The father adopted his affidavits as true and correct and his Financial Statement as true and correct at the time.  It was executed in the middle of the year and it was difficult to estimate his income.  His tax return for the 2017 to 2018 year shows an income of $67,000.  He and [X] speak regularly.  There has been infrequent contact for the last six months but he saw [X] last weekend.  [X] told him he had not smoked cannabis for two weeks.

2. Under cross-examination the father confirmed that he had spoken with [X] about earlier allegations of abuse by his grandfather after he was 18.  This was not done repeatedly.  It was not discussed until he was 18. 

3. When it was put to him that the NDIS is a stringent test, he was unsure what was required.  He does not accept that [X] has a disability that prevents him from working.  He disagreed that [X] was disabled.  [X] worked beside him in a (omitted) role.  He helped him (occupation omitted).  Work would be very valuable to [X], who wants to work.  He said on the previous weekend he would come and work.  He had paid for [X]’s dental treatment but was not prepared to pay private health insurance for him.  He does not accept that [X] will need care all his life.  [X] can do his own washing and other household tasks, and tells him that he can do his own cooking.  He is on a liquid diet.  [X] has a (details of physical appearance omitted).  He has recovered from the latter.

4. He did not agree that [X] has a severe mental disability or borderline capacity.  When it was put to him that [X] receives the disability pension, the father said that [X] is able to work.

5. The father recalled that the property in Location A was owned by three parties.  At one point, he and the mother were going to buy out the father’s sisters.  In the end they bought Location F instead.  He thought he had received $30,000 from his mother for his share in Location A.  It was true that his mother had bought his share of the land.  That property had been in his name since the 1970s.  When shown the title showing the purchase in 1982, he said it was bought by his parents in his name.  His sisters were then very young.  The asset was always owned equally by all siblings.  It was not his block of land.

6. The father conceded that [X] had had an aide in secondary school and indeed from grade 6.  The father said he pays rent of $200 per week for the flat in Location B.  He was taxed with the records from the Child Support Agency suggesting that in 2017 he had denied paying rent of $300 per week.  He said that this Child Support Agency record must be wrong.  It was tendered as exhibit A1.

1. The father then went on to say that he pays rent by the services he renders.  He pays rent in lieu.  He does not own the block of flats in Location B.  The father went on to give evidence about the chattels owned by his business but this, in my view, was unremarkable.  The father said he had borrowed from his mother in the past to buy assets for his business.

2. In re-examination the father produced and tendered as exhibit R5 a spreadsheet of works he had undertaken at the properties in Location B.  This, dated 5 January 2017, was before the work was then conducted over some three months.  His parents own a seven acre property in Location G.  He does work there whenever his parents need it, including mowing, and gardening, and other activities.  Over a month, this would average some six to eight hours.  He also does work on another property owned by his parents at Location C.  It is agreed with his parents that this is worth $200 per week.

The submissions of the parties – the father

1. Counsel for the father pointed to what was described as the policy underpinning section 66L of the Family Law Act 1975.  It was for children once adult to provide for themselves.  He submitted that the receipt of the disability support pension was not decisive.  Children are to be presumed to be fully able to stand on their own feet.  He pointed to the unavailability of the child to give evidence.  The Court should not reverse the onus of proof.  The father relies upon the government assessment.  Counsel also pointed to the effects of long term use of cannabis and submitted that [X] had, to an extent, self disabled.  He pointed to the roadmap indicated in Mr F’s letter and submitted that orders made in the form suggested by Mr F might not be inappropriate.

The final submissions of the mother

1. The mother submitted that the reception of [X] into the NDIS suggested a lifelong disability.  Also he was in receipt of a disability support pension.  She has been a carer for a long time and they are stuck at home.  [X] is no longer using strong drugs, rarely drinks alcohol, and has not smoked cannabis for quite a while.  The father has the means to pay child support and she sought the transfer of the land in Location A.  She submitted that [X] would live with her for a long time and that the father had not been truthful.

Brief findings about the credit of the witnesses

1. The mother struck me as being a straightforward and honest witness in the main, although she presented as still deeply resentful, distrustful, and hostile in respect of the father.  She remains consumed by an ongoing and all too obvious notion that the father is a man with considerable resources and wealth either at his direct disposal or indirectly through his family, and attributes his failure to contribute more to [X]’s wellbeing to meanness of spirit.

2. The father was not an entirely satisfactory witness.  His answers were, in respect of the issue of his rent, equivocal, evasive, and changed on the run.  At some points he appeared to suggest he was actually paying rent in the form of cash but it became clear that this was not the case. 

Findings about the facts

1. The first question for the Court is that posited by section 66L(1), which relevantly reads:

   (2)     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: 

   (b)     because of a mental or physical disability of the child.

2. It is the mother’s position that [X] cannot work. The father’s position is that he can.  In my view, both of these submissions somewhat miss the point.  The question is whether, because of a mental or physical disability of the child, the Court is satisfied that the provision of maintenance is necessary.  Obviously a capacity to work is a significant issue in that regard but it is not, in my view, the test prescribed by the statute.

3. In truth, it is quite obvious that [X]’s capacity for work is extremely limited.  The assessment made by the disability support pension interviews was that [X] might be able to perform eight to 14 hours work in what, in effect, was an extremely sympathetic and supported environment.  That position is entirely consistent with the father’s evidence.

4. Much of what was put to the mother about assertions of [X]’s working was little short of absurd.  The notion that he could now be presumed to work because he might have done some work when he was nine for a family friend is farcical.  I fully accept that [X] has done no work, at all, save that which he has done with his father.  It is one thing to work in your father’s business under the immediate and direct supervision of your parent.  You will obviously receive consideration and assistance in that regard.

5. The position taken overall could scarcely be clearer.  [X] is a man with borderline capacity to function in society.  He has a significant history of mental ill health, and one of the less attractive features of the case has been the endeavours of the father to portray this as being something wholly brought upon himself, by his drug use, on [X]’s part.  [X] has been suicidal, depressed, and very mentally unwell.  The father’s position, which as I find arises out of an exasperation (understandable to an extent) with [X]’s theft and other misconduct, leads him to be unduly uncharitable to his child.

6. [X] is in receipt of the disability support pension, he has been received into the National Disability Insurance Scheme, and as if that were all not enough, he has significant physical disabilities.  (omitted details of physical appearance).  The medical evidence suggests that he would struggle to lift heavy weights.  The father’s evidence did not suggest that he could.  Whether or not he is able to walk long distances is very much a matter of the mother’s impression, but the fact is he (omitted details of physical appearance) which can scarcely make him more mobile than he would otherwise be.

7. Looking at the evidence overall, and noting the fair criticism advanced by the father that no medical practitioner has been called to give evidence and subject themselves to cross-examination, the position is ultimately very clear.  While Dr J’s report must be approached with caution, it is entirely consistent with the overall picture.  This young man has very significant problems.  At best, and in what would need to be a very supported environment (none being immediately apparently available), he could work for eight to 14 hours per week in what would necessarily be very poorly paid work.  I note the father felt $18 an hour was sufficient.  This is close to a minimum wage.

8. In all the circumstances, it seems clear beyond doubt to me that [X]’s circumstances are such that he has a mental and physical disability, and that it is necessary that he be provided with maintenance if that is practicable. 

Can the father afford to contribute?

1. The father’s Financial Statement filed 11 December 2017 is wildly misleading.  He gave his income as $596 per week upon which tax of $8 per week was payable.  $596 per week equates to some $31,000-odd.  His actual income is over twice that.  Furthermore, he obtains various benefits through his company.  I note that his superannuation has increased from $28,000 in 2006 to $160,000 as at the date of his current Financial Statement.  I suspect that his business makes not insignificant contributions on his part.

2. Furthermore, his Financial Statement’s disclosure of $200 in rent is simply untrue.  It is possible that exhibit R5, a document produced only in re-examination and never disclosed to the applicant as it clearly should have been, does indeed reflect a schedule of work undertaken by the father at the block of flats in Location B.  It is also possible that this, to an extent, represents a contribution by him to his parents’ benefit.  It should be noted that we have no indication as to how long the father has been living in that block, but it appears to be more probable than otherwise that it is possible at least that he has been living there since separation, now a matter of some years.

3. In the end it is clear, despite his denials, that the father mows the lawn and does other work for his parents as and when they ask him to do it or it is perceived to be needed.  His parents simply do not require him to pay rent and he does not.

4. I further note that the father has declared that he is repaying a $9,000 loan to his mother in the sum of $173 per week.  That is a total of some $9,000 a year near as makes no difference.  That loan will, even assuming that it was entered into only as at the date of the Financial Statement, be paid off by December this year.  It is far more probable than otherwise it has now been paid out in full.  In the circumstances, there is no difficulty whatever in the father paying up to $250 per week to the child’s benefit by way of adult child maintenance.

5. Looking at the mother’s Financial Statement, her expenses are all extremely modest.  She has a shortfall of income over expenditure of $160 per week.  The amount ascribed for holidays for both the mother and the child is nil, likewise educational expenses.  In my view, a figure of $200 per week is entirely appropriate given [X]’s circumstances.

Should the order be made indefinite?

1. Orders to last, so to speak, for the entire life of the father at the age of 40 are plainly inappropriate.  I note that in some respects [X]’s future development is still very much a work in progress.  That was the view of the assessment in March to April of this year.  In my view, notwithstanding the undesirability of further litigation (particularly in view of the mother’s avidity to pursue it), the appropriate outcome is that there be an order that the father pay adult child support in this amount for the next three years, by which time his prognosis may be clearer.  The $200 will not, as the mother seeks, be adjusted for CPI given the low current rates of inflation and the period for which it is being ordered.

Conclusion

1. This has not been an edifying case to hear.  The father’s case laments the non-provision of the child for cross-examination.  As I indicated, I did not find a process whereby the child would be confronted and no doubt assailed by his father for his drug use, thefts, and so on, for a child who is already mentally precarious, to be an attractive process and not one that I would have regarded as being in the child’s best interests.  Furthermore and even leaving that aside, it would require the Court to form a view based upon matters of impression and demeanour on the witness’ part as to whether or not he was capable of working.  As I explained to counsel, that is not a task the Court is equipped to deal with.

2. Despite the various inadequacies in the evidence provided by the mother, and contrary to counsel’s submission, I think the mother has indeed established that [X] has a mental and physical disability, and further that the provision of maintenance is necessary as a result.  There will be orders giving effect to these conclusions.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 12 October 2018