Hargreaves and Hargreaves

[2017] FCCA 33

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARGREAVES & HARGREAVES [2017] FCCA 33

Catchwords:
FAMILY LAW – Application for adult child maintenance – 19 year old child severely disabled, unable to speak and still in nappies – father making extensive unfounded criticisms of mother’s care of the child – need for child support clearly established – father well able to afford child support – orders made as sought by the applicant.

Legislation:

Family Law Act 1975 (Cth), s.66L

Applicant: MS HARGREAVES

Respondent: MR HARGREAVES

File Number: MLC 2490 of 2012

Judgment of: Judge Burchardt

Hearing date: 21 December 2016

Date of Last Submission: 21 December 2016

Delivered at: Melbourne

Delivered on: 20 January 2017

REPRESENTATION

Counsel for the Applicant: Ms Colla

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: In Person

ORDERS

(Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 20 January 2017.)

1. The father pay the mother $160 per week in adult child maintenance for their child X born (omitted) 1997, commencing Friday 27 January 2017.

2. The sum of $160 per week be adjusted annually by the Consumer Price Index for Melbourne for the preceding financial year on 1 July 2017 and in each subsequent year thereafter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2490 of 2012

MS HARGREAVES

Applicant

And

MR HARGREAVES

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an adult child maintenance application brought pursuant to section 66L of the Family Law Act1975 in respect of a child X born (omitted) 1997.  X has very severe disability and has a developmental age of 3 months.  She cannot speak, remains incontinent and in nappies, and has numerous other difficulties arising from her condition.  It is obviously a terribly sad and distressing situation for all concerned.

2. The mother seeks that the respondent father pay $160 per week in adult child maintenance. The father is presently paying $50 per week, and despite some equivocation, I think he is prepared to continue to pay that sum.  For the reasons that follow, I am going to note the orders as sought by the mother.

The Materials Filed by the Parties

1. The mother filed her initiating application on 14 September 2016.  She sought payment of $160 per week and these commence within 30 days of the date of the orders and be adjusted annually by the Consumer Price Index (“CPI”).

2. The mother’s affidavit, filed contemporaneously with the application, sets out the uncontroversial matters of the dates of birth of the parents and of X and also her sister, Y, born (omitted) 2003.  The parents married in 1995 and separated in July 2010, divorcing in July 2012.  The affidavit sets out X’s difficulties and annexures as annexure 1, a letter “To whom it may concern”, from Dr P, paediatrician, dated 8 October 2015.  This letter confirms that X is a young woman with severe intellectual disability who requires full-time assistance from her mother.  She requires assistance with all aspects of everyday life.

3. The affidavit deposes that since February 2016, X attends a day program with Scope (Australia) in (omitted) from Monday to Friday from 9 am to 3 pm.  The mother deposed that she drives X and picks her up from Scope which takes two hours every day to commute to Scope and back.  Scope is funded by the National Disability Insurance Scheme (“NDIS”). The mother deposed that NDIS provides funding for X’s nappies, Scope and respite, but that she herself is solely responsible for other expenses including petrol, food, clothes, activities, hairdressing, toiletries and medical expenses for antidepressant medication for X. The mother deposed to be unable to work part time because of X’s needs.  She deposed to her Financial Statement as justifying the application, and deposed to the father’s employment as a (occupation omitted) with the (employer omitted) with an income of $91,000.

4. The mother’s Financial Statement shows that she owns her own home with a value of $362,000 and a mortgage estimated at $200,000.  Her superannuation (much of it gained from an earlier superannuation split) was worth $126,900.  Her average weekly income was $637 and expenditure $938.  Her entire income consists of the carer’s pension, Family Tax Benefit Part A and B, and child support from the father in the sum of $157.82.  X receives an average weekly amount of $207.  The mother’s expenses, including mortgage repayments of $305 per week, amounted to $938. The Part N weekly expenditures are all, in my view, extremely modest.  I note the sum of $60 per week spent on petrol for X.

5. The father’s response filed 17 October 2016 sought that the application be dismissed.  Inter alia, it was asserted that the application was barred by the earlier orders made as to the parties’ finances which it was asserted “prevents any further financial claims made against the parties.”  The final orders sought also asserted that there was likely to be a significant change in the near future in that “X will soon be living in residential care on a permanent basis, the NDIS plan is designed so that the Applicant can participate in the paid work force and I am facing redundancy.”

6. The father’s affidavit filed contemporaneously with his response gave details of the time that the children spend in his care, from Friday 5 pm till Sunday 5.30 every second weekend, and one weekend evening each for tea, part of school holidays and whenever the applicant takes holidays.  The affidavit referenced holidays to (country omitted) by the mother in August 2015 and thereafter.

7. The affidavit also asserted that X is funded for NDIS for 50 nights respite each year.  More particularly, the affidavit went on to assert that the mother had omitted important information about a Victorian Civil and Administrative Tribunal (“VCAT”) hearing which took place on 14 October 2016.  It appears that the father has made an application in the VCAT for “a Public Advocate” to take over responsibility for X’s medical and financial affairs.  The affidavit asserted that the Public Advocate is to complete an investigation and report back and annexure H1 suggests that this is the case.  Essentially, the affidavit continues to set out complaints made by the father about the mother’s care of X, now irrelevant complaints about failure of the mother to comply with the original terms of financial orders made between the parties in 2013, and asserted that the NDIS support for X, now in the sum of over $184,000, was a new factor bearing upon the parties’ circumstances, not present when the original orders were made. The affidavit makes a number of significant, but in my view carping, criticisms to the effect that the mother’s affidavit material is misleading, and accuses the mother, inter alia, of making false statements to achieve a beneficial outcome to child support arrangements in her favour.  The affidavit asserts that “it is imminent that X will no longer be in the applicant’s care.”  It is not necessary to detail every matter asserted by the respondent father, but it can be stated without qualification that the tenor of the affidavit is strongly critical of the mother, accuses her of falsehood at every turn (in a number of instances on the basis of hearsay information) and is thoroughly critical of her.

8. The father’s Financial Statement filed 21 November 2016 asserts an average weekly income of $1,685 and total personal expenditure of $2188.  He owns a property with equity of approximately $70,000, and his superannuation is marginally shy of $200,000. He notes the presence in his household of Ms H who is his wife, who has an average weekly salary of $1,150.  His mortgage is $230 per week.  At item 31 he asserts maintenance payments/child support for his children combined in the sum of $284 per week, but it is apparent that $234 of this is child support as assessed for Y and $50 is that ordered by Judge Riley on 7 November 2016.

9. The father is the owner of a boat worth $33,000, and he has a minor credit card debt.  His expenditure reveals a total of $400 a week estimated on food and $100 on personal entertainment and hobbies, as well as $60 a week on gardening, lawn mowing and cleaning, house and pool expenses, together with $80 of personal expenses per week on gifts.

10. The wife’s further affidavit filed on 28 November 2016 details X’s receipt of statutory benefits of $421 per fortnight.  She deposed to expenditure of approximately $100 per week which includes all of X’s meals, petrol of about $60 a week because of driving X to Scope twice per week, this not being funded for X.  She deposed that taxi travel would cost about $11,500 per year, and her transport funding is only $8,500 per year.  It went on to give details, the amounts generally being small, of the expenses of X which are not met by NDIS.

11. The mother filed a further Financial Statement on the same day.  She described her total weekly average income as $821 and personal expenditure as $1267.  Relevantly for present purposes, I note the $285 paid by the father by way of child support for Y and X (X $50) out of the total weekly income of $821.  Her Financial Statement also gave credit for X’s statutory benefits in the sum of $210 per week.  I note that the wife’s superannuation is given at $126,900, and the mortgage at $190,000.  Once again, I would observe that the Part N expenses are entirely modest.

12. The father filed a further response on 12 December 2016.  He sought a number of orders which would appear to reflect more the proceeding in VCAT than this Court.  He sought orders that he be the nominated person to open a bank account in X’s name.  He further sought (this was not pressed at trial) that Dr P be removed as paediatrician and “that the whole of X’s medical file be given to me.”  The orders sought went on to assert in the same paragraph, amazingly:

    X is almost 20 years old and is very fit and healthy with no medical issues since she was 6 years old. Dr P has enabled the Applicant with her antics several times at the expense of what is in X’s best interests, including colluding with the applicant when she sought a VCAT adjournment for no good reason which has only delayed justice for X.

13. The orders sought included at paragraph 5:

    That this honourable Court make final orders to prevent any further appointments for X to see any Psychiatrists and that she cease being the subject to experimentation with anti-depressants, as soon as it is safe for her to do so.  It is nothing short of negligence that the Psychiatrist has prescribed 2 types of anti-depressant medication without any benefit to X and that he wants to continue to experiment with someone who has never displayed any evidence of having any mental health issues ever.  X cannot speak or communicate other than expressing herself by laughing, crying and squealing in excitement and neither of these medical professionals have 5 minutes to consider this or seek my point of view.

14. The orders sought in the response otherwise generally put in issue the matters in the claim but their terms are to be properly characterised as somewhat florid and overblown.

15. The affidavit filed in support on 12 December 2016 puts a number of matters in issue.  Its general tenor is entirely critical of the mother.  It accuses the mother on numerous occasions of deliberate falsehood. The father asserts that the mother is well able to work and is lying when she says she is not.  He asserts that X is likely to be placed into care shortly.  He accused the applicant mother of actually working when she says she is not.  It is, in short, a litany of strongly expressed complaint.  It is perhaps well illustrated by the first sentence of paragraph 38 which asserts:

    I have already outlined the recent times that the Applicant has purported medical illnesses in order to claim financial compensation for having X.

16. I regret to say that the affidavit is in large part a stream of consciousness rant (in a style reminiscent of Mr J), making complaint about the mother’s conduct.  These are strong words, but anyone who reads the affidavit can see for themselves whether they agree with my characterisation.

17. It is appropriate to refer to some of the attachments to the affidavit.  H3 is a behaviour support services assessment made by the Department of Human Services in September 2014.  It notes that X is diagnosed as having an estimated moderate intellectual disability (a somewhat astounding assertion, bearing in mind that she is unable to talk) and a history of seizures which are related to a rare genetic disorder known as “translocated 20-3Y novo”.  She is non-verbal but laughs and squeals when she is happy and cries when she is sad.  She has a number of demanding behaviours including hair pulling and head-butting, and there are real issues related to her eating non-food items including animal faeces.

18. H6 is a child support agency assessment dated 11 November 2016.  The father’s income is assessed as $96,180 and that of the mother at $30,081.  The father is to pay $441 per fortnight in respect of Y.

19. Part of H10 is a letter to the applicant dated 13 October 2016 setting out what NDIS will provide for X.  It is apparent that the NDIS plan will provide significant financial assistance to X, but all of it will be paid directly to support providers.

20. It would be possible to spend substantial further time on this affidavit material, but for reasons which I hope it will become apparent, it is not necessary to do so.

The Evidence Given at Court – The Mother

1. The mother adopted her affidavits and Financial Statements as true and correct. She confirmed that she is not in paid employment and last worked in 2010 part-time.  She has applied for a job but given the demands of Y, who is 13, and that she has to drive X to Scope twice per week, her employment possibilities were limited.  She has applied for a job at a (employer omitted) at $18 per hour for 10 to 15 hours per week.  She is awaiting the outcome of her application.  She has lodged a tax return for the 2016 financial year which was required because she sought release of superannuation in 2015.  She received $7000 net which was used to pay outstanding bills.  She obtained a tax refund on the tax deducted from the payment to her, which was applied to other bills.

2. Under cross-examination by the father, the mother conceded that the father had looked after the children when she went on a holiday to (country omitted) in August 2015.  He had also looked after the children for three days when she had been to Perth (the father irrelevantly but obviously antagonistically referred to this as “a visit to see your boyfriend.”)  The mother confirmed that there was no bank account for X, but that such an account would be set up in due course.  The mother confirmed that she has to be available for X full time.  Although X is funded for 50 nights of respite per year, she has only thus far taken a few days here and there and it will take time before it becomes available.  When it does she will take a few days here and there.  The mother confirmed that taxis are funded to the extent of $8,500 per year but if X went to Scope each day by taxi it would cost between $11,500 and $12,000 per year.

3. The mother confirmed that there was ongoing discussion about X moving into community housing, but no placements had been offered.  Whether one would be accepted would depend.  She asserted that the father did not buy clothes for the children, but they both bought things for them.  The father does take Y to (hobby omitted) sometimes. The mother asserted that X was properly fed.

4. It should be noted that cross-examination was not particularly extensive, this not being a matter of criticism given the father’s self-representation.

5. In re-examination, the mother confirmed that she does indeed have a boyfriend but they do not live together.  X gets two weeks of holidays at Christmas, but only a further two weeks during the rest of the year, in the term 2 and 3 holidays.  X spent four to five days with the father and Y much the same, and this is likely to continue in the next holidays.  In the last school holidays, Y only spent a few nights with her father.  The father proposes to take Y to Queensland for five nights, but it emerged that it was, in fact, his partner who would be taking her as he has to work through the long summer holidays.

6. The father made a relatively extensive opening.  He put in issue the amount spent on taxis for X.  He made a strong criticism of alleged lack of financial disclosure by the mother.  He traversed a number of difficulties between the parties, (which were at all times, in my view, readily apparent) and complained of the mother’s conduct more generally.  He emphasised on a number of occasions that he was seeking what he described as “transparency”.  It became apparent, I shall interpolate and say, that in substance what he is saying is that the mother abstracts the substantial amounts of money paid by NDIS for X to her own benefit and not for that of X. He put in issue on a hearsay basis, payment by the mother of $20 per week for X’s activities and the mother’s expenditures on petrol.

7. In evidence, the father adopted his affidavits and Financial Statements as true and correct.

8. Cross-examination of the father was difficult. He was unresponsive to questions put and tended to answer them with answers of his own unrelated to the questions put. He was overtly discourteous to counsel. Although a number of his remarks were along the lines of “Will you permit me to complete my answer,” this was not in substance his position. He talked over counsel and refused to answer questions put to him directly.

9. The father raised the final property orders made on 16 May 2013 and, in effect, complained that this matter was now before the Court.  He also affirmed that he stopped paying spousal maintenance of $150 a week and child support in the sum of approximately $200 a week for X when her birthday came around in 2015.  He did not accept that the mother was not working.  He expressed dark hints about investigation by the Child Support Agency to the effect that the mother might be working and not revealing it.  He asserted that the mother was not doing her best for X.  He questioned in terms her use of funds for X.  He asserted that X was always hungry with him and was not being properly fed.

10. The father confirmed that there are proceedings underway in VCAT. It appears that they involve an application by the father for what he described as a power of attorney but which I suspect may be a guardianship order in his favour. He complained bitterly about the lack of spreadsheets showing how funds were applied to X’s benefit. Nonetheless, he confirmed that he had not made any application for discovery in the extant proceedings. He did not accept that the mother had had to borrow $3,800 from her father to make ends meet and said that there was no proof. He made the same answer when taxed with the possibility that the mother had borrowed $1,000 from a neighbour. He said, “Where is the proof of it.” It should be noted, as I interpolate, that while I accept that the father cannot be expected to have knowledge of the mother’s interaction with third parties, the tenor of his answers was querulous and dismissive of the mother. The father was not prepared to give the mother any credit whatsoever for her care of the child. When taxed with H8, being a letter dated 18 November 2007, To Whom It May Concern, from Ms K, Complex Support Coordinator, as to the possibility of shortfall in the funds necessary to provide for X, he said he would pay all of it. He, however, confirmed that the shortfall might be as little as $5 or $10 per week. When questioned by the Court, in the light of his answers and the way in which they were given, as to whether he said everything was the mother’s fault, he confirmed that this was his position.

1. When it was put to him that the mother has asserted on oath a shortfall in her income and expenditure each week, he said he did not have financial details and did not accept her Financial Statement.  He said the mother was working.  He confirmed that he is himself in full-time work and obtains four weeks leave.  In addition to his income of $96,000, he has an all-expenses paid car and a mobile phone.  He remarried on (omitted) 2016 and went to the (country omitted) for a week for his honeymoon in (omitted) 2016.  His partner is a worker in the (employer omitted), if I understood the matter correctly.  He was opposed to backdating the application to September 2016, and said he had no savings with which to pay it.  He also opposed CPI adjustment.

Observations About the Credit of the Witnesses

1. It is always regrettable to make adverse findings about parties or witnesses. They are disempowered in relation to Court proceedings, and the Court’s observations may unfortunately be hurtful to them. In this case, however, it is unfortunately impossible to avoid adverse comment. The mother was not by any means a perfect witness.  Some of her answers were combative, although this is hardly surprising given the manifest hostility and ill-will between the two parents. Notwithstanding this, she was scarcely cross-examined about a large number of matters that the father saw fit to put in issue in his own evidence. Nonetheless on the brief observation I had of her, I formed a generally favourable view of her credit.

2. I had a rather longer period of time in which to evaluate the father’s evidence. I regret to say that he impressed me very forcibly as a controlling bully. He gives the mother no credit whatsoever for the inordinate strain that she must undergo in having the vastly preponderant care of a child who is terribly unfortunately disabled. His querulous, unresponsive, insightless answers were all too obvious. He impressed me very strongly as being controlling and domineering and utterly lacking in insight. He was unresponsive to the questions put and answered, as I have earlier indicated, with answers to questions not put to him by counsel. It is most unfortunate to have to make such findings, but they are inescapable.

Findings on the Facts

1. It is important to put this application in the proper statutory context. Section 66L of the Family Law Act 1975 relevantly 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:

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

2. Here it is common cause that poor X has a very significant disability.  Despite being of adult age, she has the most profound difficulties, and cannot speak and is in nappies.  These are only the two most obvious of her difficulties but they speak for themselves.  It is immediately apparent that she has a mental and physical disability.

3. The next consideration is whether or not it is appropriate to make an order for child support. I am mindful of the scheme set out in Part VII, Division 7 of the Family Law Act 1975.  It is not, however, necessary to refer to it detail.  For these purposes it is, in my opinion, sufficient to assert that the issues are these:  has the mother established a need for child support in the amount claimed, and is it proper that the father be required to pay it.

4. My conclusions can be stated in short form. The mother’s material shows beyond any question that she needs the money. As I have said, more than once, her expenditure is not extravagant. Despite the care she takes, she has a shortfall of income over expenditure. She is in debt to her father and a neighbour just to make ends meet. She has had to access her superannuation to make ends meet. The criticisms made of her truthfulness regarding the amount she spends, for example, on petrol to transport X and the like, put forward most vividly by the father are, in my view, utterly without foundation. Although the father retains a genuine and overarching concern that the mother is in some way manipulating the system to abstract funds to her own benefit that should more properly be paid for the benefit of X, I roundly reject any such assertions. The documentation attached to the father’s own affidavit shows that the vast bulk, indeed so far as I can see all, of the NDIS payments made are paid direct to providers. The mother is not in work. The father’s bitterness about the current application reflects his ongoing hostility to the mother which appears to me, in light of the materials as a whole, and the evidence that the father gave and the way that he gave it, to reflect an almost obsessive disdain for her.

5. The next issue is whether it is appropriate to make the father pay the relevant amount.  It is clear that he has the capacity to do so.  Until X turned 18 he paid $200 a week to her benefit together with spousal maintenance to her mother.  He then ceased those payments because of the mother receiving statutory benefits.  On one view, he was entitled to do this, but on the view I take of the matter, this reflects a pitiless meanness on his part.  He is clearly able to pay.  Indeed, his financial circumstances generally are favourable.

6. Given that the mother desperately needs the extra money, and therefore X desperately needs the extra money, and the father is clearly able to pay, all the other issues in my view fall radically to one side. It may yet be that VCAT decides that it is appropriate to make orders of one sort or another. That is a matter for the Tribunal and not for me. All I would say, however, is that it seems to me readily apparent that the father’s criticisms of the mother are wildly misconceived. They reflect his bullying, domineering personality and the meanness of his approach to his daughter.

7. I should deal, briefly, with the father’s complaint arising from the final property orders made in 2013. Those orders did indeed conclude property matters, but they did not deal in any way with child support issues. This is unsurprising given the overarching statutory liability that the child support legislation establishes. Put shortly, there is nothing whatsoever in the 2013 orders that either ousts this Court’s jurisdiction in this instance or otherwise estops the mother’s application.

Conclusion

1. In these most unfortunate and regrettable circumstances, in which it will be clear that I have formed a significantly adverse view of the father and his conduct, it is entirely apparent that X’s best interests should properly be met by making the orders that the mother seeks.

2. In saying this, however, there is one caveat I would issue. The order for the indexation of the amounts is, in my view, irresistible and speaks for itself. It is, however, inappropriate to make the father pay retrospectively to the date of the application. It is not the norm that orders of the Court operate retrospectively. The fact is that the father ceased to pay child support when X turned 18, and the delay in this matter coming to Court must be said to lie with the mother. In my view, given the father’s likely unanticipated view of the outcome of these proceedings, it would in all the circumstances be inappropriate to order retrospective payment.

3. I have prepared orders to give effect to these conclusions.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  20 January 2017