Greyson and Greyson
[2018] FCCA 718
•28 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GREYSON & GREYSON | [2018] FCCA 718 |
| Catchwords: FAMILY LAW – Adult child maintenance for child who has Down Syndrome and Autism - dispute over quantum. |
| Legislation: Family Law Act 1975, ss.66K, 66L, 66B, 66C, 66J |
| Cases cited: Everett & Everett [2014] FamCAFC 152 In the Marriage of Streets (1994) FLC 92-509 |
| Applicant: | MR GREYSON |
| Respondent: | MS GREYSON |
| File Number: | MLC 8527 of 2007 |
| Judgment of: | Judge Harland |
| Hearing date: | 14 February 2018 |
| Date of Last Submission: | 14 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| The Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Ambrose |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
Pursuant to s.66L of the Family Law Act 1975 (Cth) the father pay to the mother sum of $400 per week for the child Ms C born on 1998 commencing on 7 April 2018.
The payment in paragraph 1 be adjusted annually by the Consumer Price Index for Melbourne the preceding financial year on 1 July each year.
IT IS NOTED that publication of this judgment under the pseudonym Greyson & Greyson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8527 of 2007
| MR GREYSON |
Applicant
And
| MS GREYSON |
Respondent
REASONS FOR JUDGMENT
The mother seeks an order that the father pay $400 in a week adult child maintenance for Ms C born 1998 (“Ms C”), who is 19 years old. The mother also seeks that this amount be adjusted each year for the Consumer Price Index.
The father agrees that he should pay maintenance for Ms C but argues that the mother has not established that Ms C needs the level of support the mother seeks. He proposes that he pay $500 a month.
The parties were married on 1990 and separated on 2 March 2002. They have three children. Mr A aged 24, Ms C aged 19 and [X] aged 17. The first set of proceedings were commenced in 2002 and were transferred to the Family Court of Australia. There were further proceedings in 2005, 2008, 2009, 2014 and 2015. The parties divorced and property orders were made in 2005. The father started the current round of proceedings on 12 September 2016 seeking parenting orders with respect to [X] and Ms C. The mother filed a response on 9 February 2017 seeking interim and a final adult child maintenance order for Ms C.
At the beginning of the hearing, I raised with the parties the fact that it appeared from the material both had filed that the fact that Ms C is in need of maintenance by reason of her disability was not in dispute. The issue in dispute was the quantum that the respondent should pay. During closing submissions, the husband sought to raise it as an issue for the first time. The wife’s Counsel pointed to the notice of risk and affidavit the husband filed when commencing the proceedings with respect to parenting issues on 12 September 2016. In his notice of risk and accompanying affidavit he says that Ms C has Down Syndrome and needs 24-hour care.
Legal Principles and their application to the facts in this case
Division 7 of Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”) addresses child maintenance orders. Applications for adult child maintenance are governed s.66L Family Law Act In the circumstances of this case s.66L(1)(b) applies. I am satisfied that an order for maintenance for Ms C is necessary by reason of her disabilities. As her disabilities are permanent, I am further satisfied that an ongoing order should be made. Having been satisfied that one of the conditions in s.66L is satisfied I must now turn to the other provisions in this division to determine the quantum of maintenance.[1]
[1] Smith: St James: Smith v Wickstein (1996) FLC 92-714.
There are several Full Court of the Family Court of Australia (“Full Court”) decisions which have discussed the concept of what does “necessary” mean with respect to maintenance applications. Necessary does not mean absolutely essential. Rather what I must do is examine the needs of the child, or in this case the adult child, for maintenance and what is reasonable for the parents to contribute.[2]
[2] See, e.g. Everett & Everett [2014] FamCAFC 152 (“Everett”).
Currently Ms C is not spending time with the father. The father did not raise this as an issue, but for completeness I refer to the Full Court’s decision in Everett & Everett [2014] FamCAFC 152 and its comments that it is not a necessary element making an adult child maintenance order that there be a warm relationship between parent and child.
Section 66B sets out the objects of this division:
(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Division include ensuring:
(a) 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
(b) that parents share equitably in the support of their children.
Section 66C sets out the principles:
(1) The parents of a child have, subject to this Division, the primary duty to maintain the child.
(2) Without limiting the generality of subsection (1), the duty of a parent to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the parent has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other person to maintain the child; or
(ii) any entitlement of the child or another person to an income tested pension, allowance or benefit.
The Full Court in Mee & Ferguson (1986) FLC 91-716 set out the proper approach to child maintenance issues. The Court must consider the following issues:
a)The financial needs of the child;
b)The extent to which the child has financial resources to meet those needs;
c)A comparison of the parties’ financial circumstances of the parties’ to meet the child’s needs.’
I must also consider the provisions of s.66J with respect to Ms C’s proper needs and her capacity for self-support. In this context what is necessary is not limited to bare necessities or subsistence living.[3]
[3] See Mee & Ferguson (1986) FLC 91-716.
Section 66K outlines the matters I must take into account when determining the parties’ contributions.
Ms C’s financial circumstances
Ms C also receives Centrelink benefits totalling $149 per week for the disability support pension, clean energy supplement and pharmaceutical allowance. For the purposes of calculating Ms C’s reasonable needs, I must disregard her income tested pension. Ms C does not have any other source of income. I find Ms C is not able to contribute to her own support.
Ms C has been assessed as having a permanent disability by the National Disability Insurance Scheme (“NDIS”). She does receive significant supports from the NDIS. I am satisfied that those supports are not being double counted here.
Ms C lives with her mother in rental accommodation. The mother’s affidavit says that as Ms C is now an adult, her medical care will move away from Royal Children’s Hospital. At paragraph 9 of the mother’s trial affidavit, she outlines the various medical specialists Ms C sees including psychiatrist, psychologist, speech therapist physiotherapist, occupational therapist and podiatrist. The NDIS pays for many of these services. The mother deposes that she has only included out of pocket expenses not covered by the NDIS.
She also refers to the activities Ms C engages in, including (omitted).
The mother outlines the various medications Ms C takes. She estimates the cost and provides documents were she can. She estimates Ms C’s pharmaceutical costs at $767 per year, being approximately $15 per week this is an increase in her estimates given in her financial statement. I accept the evidence in her affidavit as being a more accurate reflection of Ms C’s current expenses.
The mother also gives evidence about the equipment Ms C has to assist her with mobility, learning and self-care.
Ms C attended Region 1 Special School until she completed Year 12 in December 2016. In 2016, she started attending a disability education day placement program four days a week in Suburb A School and a skill development program one day a week in Town 1.
As from 1 February 2018, the mother’s rent increased as the Department of Health and Human Services assessed there should be an increase of approximately $40 a week for Ms C’s share of rent.
Ms C’s share of the private health insurance premium is $35 a week.
The mother attributes 70% of her weekly petrol costs to Ms C as she needs to take Ms C to her various appointments. I find that is reasonable. Ms C’s share is estimated to be $70 a week.
The Mother says that all heating and cooling costs are higher because the home is poorly insulated and Ms C has trouble regulating her body temperature due to her Down Syndrome.
The mother deposes that some of the out of pocket expenses she incurs are for participant costs associated with special excursions. The NDIS funds Ms C’s costs but not the mother’s costs or a carer’s costs of attending. When cross-examined about this the mother said the carers are not required to provide receipts for this. She says she pays for some of these in cash on the day.
The mother also deposes to costs she has not been able to afford to incur for Ms C including with respect to orthodontic costs. She says those expenses are estimated to be $7,000. She says she asked for a current quote but has not yet researched it.
She also anticipates costs with respect to a companion dog for Ms C. Her companion dog died in 2016. Ms C is on a waiting list for a replacement. The father did not cross-examine the mother about this. I accept that this is an expense Ms C is likely to incur in the future.
The mother was cross-examined about a cruise she and Ms C took. They went on cruise with five other families with adult children with Down syndrome. $4,500 was deducted from Ms C’s bank account on 28 September 2017 to pay for that trip. The father agreed that it was reasonable to take this trip.
Ms C has two bank accounts. Exhibit A is a bundle of bank account statements for Ms C’s Bank account. The mother is trustee of this account. Ms C’s maintenance is paid into the account. The father cross-examined the mother about this account and the fact that the balance in that account increased over the period of Ms C receiving interim maintenance payments. He argues that this shows that the amount of maintenance he pays is excessive for Ms C. The mother says the balance account has increased over time as she put much of her carers allowance away for long-term savings for Ms C. She says that she has been contributing to that account for many years. The mother said she placed some of her inheritance from her father into that account. She says more recently since returning from the cruise she has had to use that account to cover the shortfall of Ms C’s expenses.
I accept the mother’s evidence. I find that she has given estimates as best she can about her current and anticipated expenses for Ms C. I do not accept the father’s argument that the increase in savings in Ms C’s account means that she does not need the amount of maintenance the mother claims. Particularly, given her modest income, it is to the mother’s credit that she has been able to put aside savings for Ms C so she has a financial cushion. She is not required to exhaust that fund in order to seek maintenance.[4]
[4] See Marriage of Mitchell (1995) 19 Fam LR 44.
In his affidavit sworn on 18 January 2018, the father says that the mother has not provided all of the required disclosure documents including tax returns and tax assessments and bank statements. He also argues that the evidence the mother did provide by way of disclosure is inconsistent with the amounts she deposed to in the Financial Statement sworn on 9 February 2017. He annexes some of the disclosure documents he was annexed to his affidavit and makes the following comments about the annexures at G3 which can be broken down into three categories and verify the following out-of-pocket expenses for 2017:
a)camps and holiday programs $555;
b)swimming lessons $201
c)out-of-pocket medical expenses $1,354.
He complains that the mother exaggerates these expenses in her financial statement sworn on 9 February 2017 where she deposes as to the following amounts:
a)camps and holiday programs $1,300
b)medical expenses $3,900.
The mother provides up to date estimates in her trial affidavit. She also states that she does not have receipts for every payment she has incurred. The estimate of $25 a week for camps and holiday programs for Ms C which equates to $1,300 a year is not an unreasonable amount particularly given the fact that she makes no provision in her financial statement for holidays and only $10 a week for entertainment/hobbies for Ms C. I note that the father’s estimates for his own expenses in this regard are also modest.
The medical expenses of $3,900 equates to $75 a week. I find the expenses for Ms C’s needs are a $15 a week increase from the estimate in the financial statement of $5.50 a week. It appears that there is some double counting in the $75 a week estimate which the mother includes in her financial statement as the particulars she provides at Part O includes $40 a week for medication and other incidentals. In the circumstances, I am satisfied that estimate of $15 a week for pharmaceuticals and $50 a week for other medical expenses is reasonable.
The father also complains that the mother has not provided tax returns or tax assessments. He did not cross-examine the mother about this. Individuals whose only income is sourced from Centrelink benefits are not required to file tax returns. There is no evidence to suggest that the mother failed to disclose another source of income.
I am satisfied that Ms C’s reasonable weekly expenses are:
Expenses
$
Rent
40.00
Private health insurance
35.00
Pharmaceutical expenses
15.00
Other out of pocket medical expenses not including pharmaceuticals and insurance premiums
50.00
Food
60.00
Household supplies
12.00
House repairs
6.00
Gas
6.00
Electricity
24.00
Water
5.00
Telephone/internet
11.00
Mobile telephone
6.00
Motor vehicle – petrol
70.00
Fares / car parking
7.00
Clothing and shoes
30.00
Entertainment / hobbies
10.00
Education expenses, including fees and levies
10.000
Ms C camps
25.00
Books and magazines
2.50
Gifts
5.00
Hairdressing, toiletries
6.00
Swimming lessons (other activities)
35.00
Total
470.50
These expenses do not include the expenses that the mother has foreshadowed, being the dental work and costs associated with a new companion dog. Ms C is on a waiting list for a dog. The mother has not particularised these expenses.
The mother’s Counsel referred to the decision of In the Marriage of Streets (1994) FLC 92-509 (“Streets”) and in particular that in a case where one party is in receipt of a pension and the other a modest income a detailed examination of the actual expenses will not be necessary as the real needs will exceed the available income. Of course the factor that distinguishes this case from Streets is the father’s significant income.
In a maintenance application it is appropriate to identify expenses that are reasonable to incur but have not yet been incurred or been delayed because of an inability to pay for them. The difficulty is that she has not particularised what these expenses could be. If the expenses come to pass and are significant, the mother may need to make a further application to the Court if the parties cannot reach an agreement.
The mother’s financial circumstances
The mother was born on 1966 and is 51 years old. The mother is reliant on Centrelink benefits. The mother has not engaged in paid employment outside of the home since Ms C was born. The mother says that the obligations of taking Ms C to various medical appointments and activities means she is not able to engage in paid employment outside the home. Her obligations are recognised by the fact that she receives the carer’s pension.
The mother is in receipt of an income tested pension. She receives the carer’s pension for looking after Ms C. The mother’s ability to contribute to Ms C’s financial needs are limited. She deposes to having debts that she is paying off with respect to [X]’s school fees and dental work. For the purposes of considering the mother’s capacity to contribute to Ms C’s maintenance I must ignore the income tested pension.[5]
[5] Family Law Act 1975, s.66K(4)(a).
The Father’s financial circumstances
The father was born on 1963 and is 55. The father is a (occupation omitted). He has remarried. They own a home together subject to a mortgage and the husband has approximately $277,000 in superannuation. His wife also works for a (employer omitted). Two of her adult children live in their household. They are both in employment. The father includes expenses he pays for them total $293.00. As he has no legal obligation to support them, I disregard that amount. I can only take into account the father’s legal obligations to support [X]. He has no legal obligation to support his adult step children.[6] The father’s wife has capacity to provide for her adult children if they need it.
[6] See Vick & Hartcher (1991) FLC 92-262.
Clearly the father is in a far stronger financial position than the mother. The father conceded that he and his wife have a combined income of approximately $300,000 a year. The father’s tax returns for the years ending 30 June 2013 to 30 June 2016 were tendered as exhibits. For the purposes of this application, I must ignore his wife’s income as she does not have a legal duty to support Ms C.
Exhibit G is a copy of the father’s payslip for the period 3 March 2017 to 16 March 2017 showing an annual salary of $191,780.82 his tax return shows that his employer pays $349 a week in superannuation contributions on his behalf. The father has incorrectly referred to this as an expense incurred by him.
The father also conceded that in his financial statement he included a figure of $73 a week for rates when he is only responsible for half that amount being $36.50.
He has care of the parties’ youngest child [X]. The father pays private school fees for [X] of approximately $500 per week.
It was put to the father that he pays about $40,000 a year for [X] including his significant education expenses, yet his case is that $6,000 a year is reasonable expenditure on his daughter. He answered that “the expenses are the expenses”. This is indicative of the father’s mathematical and rigid approach. It is clear to me that Ms C’s expenses are modest because significant expenses are covered by the NDIS relieving the parents of that burden.
The father conceded that the mother is living in public housing. When cross-examined, he did not concede that Centrelink benefits are the mother’s only source of income, that she does not have any retirement savings. He said that in 2005 she received generous property settlement and sold the former matrimonial home. He said all those things were matters of record. He did not cross-examine the mother about any of these matters. I am not satisfied that mother has income and assets that she has not disclosed.
Much of his affidavit is argument rather than evidence. He complains that the mother apportions all household bills on a 50/50 basis rather than apportioning a greater proportion of the fixed costs to herself. He reasoned that the mother would incur those expenses whether or not Ms C was there. Despite raising that argument he does not apply the same reasoning to his own financial circumstances. His complaints in this regard are unreasonable and not consistent with how he apportions many of his household expenses.
He says that although Ms C has Down Syndrome she has few “unique” medical expenses.
The father also says that the payment he has been making on an interim basis of $1,000 a month is excessive and refers to the fact that there has been an increase in the funds in the Bank account in the joint names of Ms C and the mother while he has been making these payments. He annexes bank account statements for that account as G4.
Conclusion
Both parties were cross-examined. The father represented himself. He struck me as having a rigid and mathematical approach to the issue. My impression is that both parties are quite bitter and mistrustful of each other despite having separated many years ago.
The parties’ respective financial positions are in stark contrast. The husband conceded that he should pay a greater portion of Ms C’s expenses. It was the amount of Ms C’s expenses that was in dispute.
There is no issue that Ms C needs financial support. The issue in dispute is the quantum.
I am satisfied that the mother has established that Ms C has a need of financial support which exceeds $400 a week to which she seeks the father contribute. Ms C is unable to contribute to her own maintenance. In determining the contributions the parties should make, I have had regard to the provisions of s.66K of the Family Law Act. The husband is in a much stronger financial position than the wife. The payment of $400 a week will not cause the husband hardship having regard to his financial circumstances. Having regard to the parties’ respective financial circumstances, it is proper that the father contribute more significantly to Ms C’s expenses than the mother.
The husband has the capacity to pay the $400 a week the mother seeks. As discussed above his financial statement includes $349 for superannuation which in fact his employer pays, and rates of $70 a week where in fact his share is $35 a week. He has no duty to support his wife’s adult children as they both are working. This is a further saving of $293. He currently pays $1,000 maintenance a month or $231 a week, not $276 a week as he states in his financial statement.
According to the father’s Financial Statement he has an excess of $5 a week. The actual figure is $727 once the above amounts are deducted.
I must make an order that is proper in all the circumstances. The mother’s only source of income is the care’s pension which is income tested and must be ignored. The father has the capacity to pay $400 per week. In those circumstances it is proper to make the orders the mother seeks.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 28 March 2018
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