H and A - [2001] FMCAfam 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & A

[2001] FMCA fam 221

MAINTENANCE – Application by father – duty of parent to maintain adult child with disability.

Applicant:

R S H

Respondent:

C L A

File No:

ZT2779 of 2001

Delivered on:

31 August 2001

Delivered at:

Townsville

Hearing Date:

31 August 2001

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Fellows

Solicitors for the Applicant:

Williams Graham & Carman

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

VJ Butler & Associates (who obtained leave to withdraw)

ORDERS

Pursuant to section 66L(1) of the Family Law Act 1975 the Mother pay to the Father for the maintenance of the child, R A HI born on
10 February 1983, the sum of $300 each week, the first of such payments to be made on 7 September 2001 and weekly thereafter to a bank account nominated by the Father or in such manner as the parties otherwise agree.
That the amount of this order be varied annually in accordance with the variation in the Consumer Price Index as it stands on 31 December immediately preceding the date of variation as compared with the same index at the same date prior thereto.
That it is certified that the briefing of Counsel to appear in the proceedings was reasonably required.
That the Mother pay the Father’s costs of these proceedings as taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

ZT 2779 of 2001

R S H

Applicant

And

C L A

Respondent

REASONS FOR JUDGMENT (Ex Tempore)

This matter comes before the Court on the father's form 12 application for maintenance, filed 4 January 2001. In support of that application for maintenance the father relies upon an affidavit sworn by him as to his evidence-in-chief, filed 30 August 2001 in this registry (the application being filed in the Cairns Registry) and further an affidavit sworn by Edward Lago, the solicitor who has the care and conduct of the matter on behalf of the applicant father.
In response, the mother filed a form 12B in the Cairns Registry on

22 March 2001. This matter was first before me on 27 August 2001 wherein each party was represented. The matter was adjourned at the request of counsel for the mother to later in that day when another telephone mention of the matter occurred with counsel for the mother indicating that her instructions were that the mother wished to no longer participate in the proceedings. Ms Willis of counsel for the mother then sought leave to withdraw from the proceedings indicating that the mother had not made herself available to provide instructions to Ms Willis to properly conduct the matter.
Attempts were made by the mother’s solicitors to contact their client by facsimile and to contact her on her mobile phone but to no avail. Accordingly, a notice of cessation to act was filed by the mother’s solicitors in the Townsville Registry on 31 August 2001. It is dated

23 August 2001.
I made orders on 27 August 2001 that the matter was adjourned for final hearing to today's date at 9.30 am and that the father was at liberty to proceed on an undefended basis. Each party was granted leave to inspect and photocopy subpoenaed documents from the Council of the Shire of Douglas, and from Mr Philip Dry. Such inspection was to occur in Cairns. The father's costs of that day, 27 August 2001, were reserved.
The matter is an undefended proceeding this day. The mother, I am satisfied, is aware of the proceedings this morning listed for hearing at 9.30 am. Indeed, she sent a facsimile to the Court indicating in the first paragraph that she did not wish to participate in this video link hearing in the Federal Magistrates Court to be conducted between Townsville and Cairns. I am satisfied she is aware of the proceedings this morning, and that she has continued, as she did, on 27 August 2001, in her wish to engage no further in the proceedings. The balance of that facsimile is not in evidence before me, Mr Fellows of Counsel for the father objecting to this document being placed in evidence. It is not a sworn document and does not comply with the Rules of the Court with respect to the filing of documents.
The proceedings have had a long and tortured history for what is a relatively small and confined matter. That history is as set out in Mr Lago's affidavit, filed 31 August, in this registry. He deposes as to the progress of the father's application for maintenance from 4 January 2001 to this day, 31 August 2001:
a)Initially, there were difficulties in personally serving the respondent mother, she not being served with the application until 11 March 2001. Accordingly, the matter did not have its first mention date – and that was in the Family Court in Cairns – until 26 March this year. It was adjourned to enable the mother to produce financial documentation. That adjournment was to 2 April 2001;
b)On 29 March, prior to that adjourned date solicitors acting on behalf of the father caused a notice to produce to be served upon the respondent's solicitors. On 2 April 2001 various orders were made by Justice Monteith as to discovery and inspection, and the matter was once again adjourned to 30 April 2001 for hearing;
c)The father filed his affidavit of documents and served same on
6 April 2001. The respondent did file an affidavit of documents on 30 April 2001, although the documents referred to therein had been made available for inspection at an earlier date. The matter was next mentioned in the Family Court before Justice Guest on 11 May 2001. Further relevant discoverable documentation sought by the father had not been made available and the matter was adjourned to 9 July 2001 to again enable the respondent to produce documentation to the solicitors acting for the father. Costs were reserved on that occasion;
d)The matter was next mentioned on 9 July 2001 before Chief Justice Nicholson in the Family Court. On that occasion, counsel appeared for the respondent advising the Court that she would be seeking the appointment of a Guardian for the child, the subject of the maintenance application, pursuant to the provisions of the Guardianship Administration Act. Because of that indication to the Court the matter was again adjourned to 16 July 2001 to enable the parties to confer in relation to the mother’s application;
e)The father had no objection to that course, indicating that he would cooperate with the Guardianship and Administration Tribunal if any such application was made to that Tribunal by the mother. He does not believe nor is there any evidence before me that any such application was made. Thus in the period from 4 January to 15 July 2001 various adjournments were had; various attendances had been required; (at, no doubt, considerable cost) and almost every instance was as a result of the mother failing to make adequate discovery/disclosure or the mother seeking to delay the proceedings.
On 16 July 2001, the matter was not heard again but transferred to this Court for hearing. Directions were made by Chief Justice Nicholson, with the mother to file a further affidavit of documents and to provide to the father a list of all the assets and liabilities of the estate of her deceased mother, together with an authority directed to the executive administrator of the estate authorising that person to release and/or to provide to the father or his legal advisers any information or documentation sought in relation to the estate. The mother has failed to comply with each and every one of those directions.
The matter was then listed for telephone link-up on 27 August 2001 in this Court and adjourned to this date with the father being at liberty to proceed undefended. This was clearly known to the mother. The father, this day, proceeds on an undefended basis. The father is represented by Mr Fellows of counsel. Counsel has handed to the Court a short outline of argument for the applicant. That has assisted the Court and it will remain on the Court file.
It is sought that the mother pay to the father for the maintenance of their child, R A H, born on 10 February 1983, the sum of $300 each week and further that it be varied annually in accordance with the variation in the Consumer Price Index. R is obviously over 18 years of age. In response, the mother has sought that the father's application be dismissed.
The application is thus made for the support of an adult child and it is brought pursuant to section 66L(1) of the Family Law Act 1975. The basis of the application is that it is necessary for this adult child to be maintained by his parents because he suffers from autism. With respect to this disability the child is significantly adversely affected. In RSH10 exhibit annexed to the affidavit of the father there are various reports as to R's autism. R is described as severely intellectually impaired and autistic. He has no communication, verbal, sign or other – as a result of his condition. He is unable to look after himself and he is not toilet trained. He has no self care skills and he requires constant supervision. These are matters to which the father also deposes.
During adolescence R has been observed by Jocelyn Turner (who is a teachers aide at the Special Education Unit at Smithfield State High School where she is employed to exclusively assist with his management program) to have become even more difficult to manage and control with bouts of violence that have caused grave concern to his teachers and family. He is said to strip, masturbate and urinate in public. He is tall and strong and when he becomes aggressive it is almost impossible to control him because of his size and his strength. There are instances of attack upon others. Jocelyn Turner also is engaged by the father as R’s carer at a cost of $250.00 per week.
There is also annexed to the father’s affidavit reports of Dr Paul Condon and Dr Attwood as to their medical treatment of R. Dr Condon believes that R requires one-to-one supervision and support to function in his life and that his father is unable to provide this level of support. His father is considerably distressed coping with the heavy day-to-day demands of caring for his son.
Dr Attwood describes R as having the profoundest expression of autism, namely, the aloof sub-group. He says in his 30 years experience of over 15,000 individuals with autism, R is one of those with the severest expression of autism. He is amazed that his family have continued to care for him at home. He concludes that if R were in full-time government care with Disability Services Queensland, he would cost the government well over $70,000 a year.
Clearly, this child falls within the category as described in section 66L(1) of the Act. The applicant’s capacity to support his son is before the Court. The respondent's capacity is more difficult to ascertain in that save for the filing of a form 12B the respondent has failed to participate in these proceedings.
The parties to these proceedings married on 7 August 1982 and they separated in January 1987. A decree nisi was granted in January 1989. They have thus been separated for a very long period of time, in excess of 14 years. In that entire time R, who is now 18 years of age, has resided with his father.
R has contact with his mother, pursuant to orders made in August 1993 but over time the mother has not sought to exercise contact as regularly as in the early days. The father deposes that she now rarely has contact with R. Therefore the father continues to be solely responsible for the child's everyday care, welfare, and development, including his financial support.
The mother has made no significant contribution to the father toward the child's support. The father was born on 18 March 1945 and he is
56 years of age. He remarried on 14 June 1989 to his current wife, A, and they have three children: R H born 19 January 1991; I H born
11 January 1993; and S H born 25 February 1999. A remains at home full-time caring for the three children of the marriage. She is a director of a family company and she receives the sum of $262 net each week. Otherwise the father is solely responsible for the support of A, their three children, and the child, the subject of this application.
The father's financial position is as set out in his application for maintenance, filed 4 January 2001, save that he makes some amendment thereto noting that that was filed in January and it is now August 2001. He has updated his schedule of expenses with respect to the support of R such that the expenses were $527 and are now calculated in the sum of $609 each week. Those expenses seem reasonable. They include an amount for the share of the mortgage. The father’s total weekly income is $2,262.00.
Given R's special needs he will always require accommodation in his father's household and, no doubt, that accommodation needs to take into account his special needs. I do not have any difficult with an inclusion of a share of the mortgage payments by his father with respect to his accommodation needs. The father also indicated that his debt due to X Com Australia Proprietary Limited of $7,000 has been extinguished. His credit card debts total $16,000 approximately and his outstanding fine to the Supreme Court of New South Wales, is currently in the total sum of $98,000.
The mother in these proceedings was born on 9 February 1949. She is 52 years of age. She has a daughter from a previous relationship. The father believes she is currently in a de facto relationship with Mr P D. She resides at Lot 25 C Highway, P D, which she received as part of the parties' property settlement. With respect to her financial circumstances it is obviously more difficult for that to be ascertained given her absence from these proceedings, and the absence of any ability, therefore, to cross-examine her as to those matters to which she has deposed by way of her form 12B.
However, her form 12B does indicate ownership of real property which she values at $340,000, encumbered by a loan of $196,000. Counsel for the father refers the Court to this loan balance having been $247,000 as at the end of August 1999 as referred to in exhibit RSH3, and reducing by 8 December 2000, to $190,000 as referred to in exhibit RSH5. This is a reduction of $57,000 in about 15 months, i.e. $3,800.00 per month.
Clearly, the lending to the mother of the sum of $247,000 would have been done by a commercial lender on the basis that the mother had the capacity to meet such debt. For the period from 21 June 1999 to 20 February 2001 there has been discovery and inspection of the credit card expenditure of the respondent and that is annexed in exhibit RHS9. Those credit card documents indicate that the mother has incurred expenditure in Hong Kong in December 1999; in the Philippines in October 2000; and in Brisbane and the Gold Coast in December 2000/January 2001.
Those documents also indicate, and as contained in the outline of argument for the applicant, significant deposits into that account of approximately $54,000 in a period of 19 months. I find that the mother has funds to travel and to significantly reduce her mortgage in a relatively short space of time. The income available to the mother appears to be significantly in excess of that deposed to by her in her form 12B.
Annexed to the father's affidavit, and as contained in RSH6, 7 and 8, are documents pertaining to the respondent’s interest in a property in Bel Air Village in the Philippines with a value, of approximately, in Australian dollars, $910,000.00 (Philippines Peso 24,000,000.00. Exchange rate at 30 August 2001). The mother has a ¼ interest. I find that the mother has financial resources in the form of real property and from the very limited material that is available to me, an income in particular as evidenced by her mortgage statements and credit card statements, wherein she could meet a maintenance payment ordered against her and as sought by the father.
I do draw an adverse inference as to the matters deposed to by the mother from her unwillingness to participate in these proceedings; to subject herself to cross-examination and to comply with the earlier orders made by Nicholson CJ on 16 July 2001.
I find that maintenance is needed for the support of this child and that it is reasonable to require the non-custodial parent to contribute to the expenses as incurred for the support of the parties’ son in equal measure. I have had regard to the mother’s financial resources and to her income receipts in the limited manner in which undefended proceedings allow. I disregard any Social Security entitlement that the parties' son may receive [Section 66J(3)(b)].
I rely upon the contents of the affidavit, as sworn by the applicant father, and filed in these proceedings. In light of the expenses of the child; the father's financial position as deposed to by him; the mother's position as gleaned from the documents filed by her and from the documents discovered and inspected by the father I find that it is just and equitable that there be a payment of maintenance in a periodic sum of $300.00 per week for the support of the parties’ child being a payment of adult maintenance made by the mother to the father.
I shall certify for counsel. Anything else, Mr Fellows?

Recorded — not transcribed

HER HONOUR: I order further that the mother pay the father’s costs of these proceedings as taxed. There has been an oral application made that the mother pay the father's costs. Ordinarily, pursuant to section 117 of the Family Law Act 1975 each of the parties would pay their own costs. The application has been made because of the mother's response to the carriage of the matter which has meant that there have been numerous appearances before the Family Court and this Court in the totality of these proceedings. Further the father has been entirely successful.
A number of those appearances were as a result of the mother's failure to produce documents or to produce documents for inspection; her failure to comply with directions of Nicholson CJ made in July of this year; her refusal to provide instructions on Monday of this week and her refusal to participate in these proceedings this day. I find that the conduct of the mother in the proceedings, in particular, with respect to her non compliance with earlier orders and directions and in relation to her non provision of a further affidavit of documents has made these proceedings far more costly and extended to the father than they needed to be.
As a result of the failure of the mother to comply with previous orders and the father being entirely successful in his application it appears to me appropriate that I make an order for costs such that the mother pay the father's costs of these proceedings. He has not received any financial support from the mother for the parties’ autistic son who is cared for by his father with high attendant caring costs. The mother’s financial position is such that I believe she has the capacity to meet such an order.
It is most unfortunate that the father has been put to the expense of coming to this Court to obtain adult maintenance for the ongoing support of the parties' severely disabled child.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date: