Hickman & Hickman
[2022] FedCFamC2F 1557
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hickman & Hickman [2022] FedCFamC2F 1557
File number(s): MLC 3658 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – ADULT CHILD MAINTENANCE – where child suffers from epilepsy – where the respondent father disputes the severity of the epilepsy and contends the child can maintain some employment – where medical evidence of specialist is not on affidavit and is hearsay – specialist’s evidence not taken into account – where evidence of general practitioner is child cannot undertake any employment – where evidence of general practitioner is conclusionary – where general practitioner admitted he had not considered all forms of employment when he stated child could not be employed – evidence of general practitioner not persuasive and not accepted – HELD provision of maintenance not necessary because of a physical or mental disability Legislation: Family Law Act 1975 (Cth), ss 66B, 66C, 66G, 66J, 66J(1)(c), 66J(3)(b), 66K, 66L, 66L(1), 66L(1)(a), 66L(1)(b), 66VA
Evidence Act 1995 (Cth), s 140
Cases cited: Everett v Everett [2014] FamCAFC 152
Northam & Northam [2019] FCWA 240
Paul & Paul [2012] FamCAFC 64
Re AM [2006] FamCA 351
Zubcic v Zubcic and Ors [2018] FamCA 129
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 4 November 2022 Place: Melbourne Counsel for the Applicant: Mr N Eidelson Solicitor for the Applicant: Victoria Legal Aid Advocate for the Respondent: Dr J Van Beveren Solicitor for the Respondent: Van Beveren Lawyers ORDERS
MLC 3658 of 2022 BETWEEN: MS HICKMAN
Applicant
AND: MR HICKMAN
Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The Application filed 7 April 2022 and the Amended Application filed 5 October 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hickman & Hickman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application for maintenance for a child aged over 18 years of age. The application is brought by the mother on behalf of the child Ms B born in 2000 (‘Ms B’). The application is opposed by the father.
For the reasons that follow, I have decided to dismiss the application.
background
The parents commenced a relationship in around 1994. They subsequently had two children Mr C born in 1996 and Ms B. The parties separated in 2016. Property matters were resolved between the parties subsequently in December 2017.
Ms B suffers from epilepsy. The father disputes, among other things, the severity of Ms B’s epilepsy and in particular, whether it prevents her from undertaking employment.
In May 2019, an application for maintenance for Ms B was initiated in this Court. Final orders were made by consent on 28 August 2019. Under those orders, the father was required to pay maintenance for Ms B in the amount of $125 per week. Those payments were to commence on 5 September 2019 and continue until 2 September 2021. The orders also provided that at least one month before the expiration of the orders, the parties were to arrange mediation to review Ms B’s condition with a view to assessing her future needs and the capacity of each party to contribute to those needs.
The mother deposes in her material to her attempts to initiate mediation with the father. There is no doubt given the correspondence that I have seen that she tried valiantly to engage the father in an attempt to resolve the matter. The father has not engaged and mediation has not occurred. The mother now pursues this further application for maintenance on behalf of Ms B.
The mother seeks orders that the father pay to her the amount of $200 per week for Ms B and that such payments commence from 4 November 2022 and continue until 4 November 2027. The mother also proposes an order that in the event Ms B obtains employment, the father be notified. The mother also seeks an order that the amount of maintenance be adjusted annually by the Consumer Price Index (CPI) for Melbourne for the preceding financial year. The father opposes these orders.
The mother relies on her Amended Initiating Application filed 5 October 2022, an Amended Financial Statement filed 27 October 2022, her trial affidavit filed 27 October 2022, the affidavit of Ms D affirmed 25 October 2022 and her outline of case. The father relies on his Amended Response filed 12 October 2022, an Amended Financial Statement filed 2 November 2022, and an affidavit filed on 4 May 2022. Each party filed a bundle of authorities. The parties also filed a brief statement of agreed facts.
principles
Applications of this kind are to be determined having regard to certain provisions contained within Division 7 of Part VII of the Family Law Act 1975 (Cth) (‘Act’).
Section 66B sets out the objects of Division 7 as follows:
(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 concerning the primary duty of a parent to maintain a child. Section 66C provides as follows:
(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.
Section 66G sets out the power to the Court to make a child maintenance order.
Applications for maintenance for children over the age of 18 may be commenced under section 66L. Subsection 66L(1) relevantly provides as follows:
(1)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:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
The application before me is brought on the basis set out in section 66L(1)(b) – that maintenance is necessary ‘because of a mental or physical disability of the child’. The term ‘mental or physical disability’ is not defined in the Act. It has been held, however, that section 66L can cover any mental or physical disability of a child, whether temporary or permanent or whether partial or total. In Re AM [2006] FamCA 351 (‘Re AM’), the Court stated as follows at [74]-[75]:
[74]The provision of maintenance for a child over the age of 18 is necessary in the relevant sense if the child reasonably needs it because he or she is handicapped in some way.
[75]The word 'disability' in s 66L(1)(b) refers more to consequences than causes. A disabled person lacks mental power or a physical faculty (or both) and is restricted in the way he or she lives or moves.
The Full Court also stated at [114]:
[114]The language of s 66L is plain and unambiguous. There is no express age based limitation and none should or needs to be implied. The section does not refer to a ‘childhood’ disability. If such restrictions were intended it could and should have been made clear as crystal. Equally, there is no reason for believing that ‘temporary’ disabilities are within the ambit of the section while ‘permanent’ ones are outside its confines. No distinction is apparently drawn between ‘partial’ or ‘total’ disabilities either.
The meaning of the term ‘necessary’ is well settled by authority. In Everett v Everett [2014] FamCAFC 152 at [77], the Full Court endorsed the following statement from Tuck & Tuck (1981) FLC 91-021:
[77]The construction of the word “necessary” has been well settled in this court for many years. In Tuck at 76,227 Evatt CJ and Murray J said:
To define “necessary” as meaning “absolutely essential” is to give the adjective a most stringent definition. That stringency, in our view, is not warranted by the concept expressed very strongly by the Act that the Court shall regard the welfare of the child as the paramount consideration. “Necessary” in this context means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors.
It is necessary for the applicant for maintenance to demonstrate the required necessity: see Paul & Paul [2012] FamCAFC 64 at [101], noting that this is a case concerned with section 66L(1)(a) of the Act. In this jurisdiction, a case is proved if the Court is reasonably satisfied of its essential elements on the balance of probabilities, taking into account the nature of the action or defence, the subject matter of the proceeding and the seriousness of the allegation: section 140 of the Evidence Act 1995 (Cth); Re AM at [95].
Assuming an applicant for maintenance satisfies the requirements of section 66L, it is then necessary to consider the capacity of a parent to provide maintenance having regard to the terms of section 66K of the Act. It is also then necessary to consider what might be broadly described as the needs of the child having regard to the matters set out in section 66J of the Act.
Finally, it necessary to note the terms of section 66VA. Subsection (1) of that section relevantly provides that a child maintenance order made under section 66L stops being in force if the child ceases to have the disability.
consideration
Both parties accept that Ms B suffers from epilepsy. A principal issue in this case concerns the severity of the epilepsy suffered by Ms B and whether it prevents her from undertaking employment. On this issue, the father made a number of submissions. One of the submissions advanced was that epilepsy is not a ‘disability’ within the meaning of section 66L of the Act, but that it was a ‘disease’. Another was his contention that it is always possible for a person to find work if they want it. A further submission was that the application should be dismissed because the evidence is not sufficient for the Court to be satisfied that Ms B is unable to work because of her epilepsy.
I do not accept the father’s submission that section 66L(1)(b) of the Act is not engaged because Ms B suffers from a disease and not a disability. That submission ignores the authorities in the area, referred to earlier, which are to the effect that a disability includes any form of disability. It also runs counter to the principle set out in the authorities that section 66L is concerned more with consequences than causes.
There are then the father’s other submissions that it is possible for Ms B to find some work, and that the evidence before the Court is not sufficient for the Court to be satisfied that Ms B is unable to work because of her disability. In respect of these submissions, I note that the Father has not tendered any evidence in relation to Ms B’s capacity. He does not need to. As noted above, an applicant for maintenance is required to demonstrate the necessity for the maintenance. It is also not surprising that the father has not tendered any evidence as to Ms B’s condition and her capacity for work in circumstances where the relationship between father and daughter appears to have broken down.
The evidence that is before the Court concerning the extent of Ms B’s disability is to be found in three places. First, the mother attached to her affidavit a letter from Associate Professor Ms E. Associate Professor Ms E is, inter alia, the Head of Epilepsy Services at F Hospital in Melbourne. In the letter, Associate Professor Ms E provides a brief overview of Ms B’s epilepsy and opines that ‘it makes it difficult for her to manage looking after herself independently, working and driving’. Associate Professor Ms E also states that ‘it is highly unlikely that these events will improve sufficiently enough for her to hold down a job and I strongly recommend ongoing continuing disability support’.
There are various difficulties with this letter. First while the mother in her affidavit refers to Associate Professor Ms E as ‘her’ [Ms B’s] neurologist, the letter from Associate Professor Ms E does not confirm that fact. Nor does the letter from Dr D, Ms B’s treating General Practitioner, confirm that fact. Secondly, while Associate Professor Ms E says Ms B’s condition makes it ‘difficult’ for her to work and that her condition will not improve enough to hold down a job, there is not any explanation given as to what jobs Associate Professor Ms E considered when he made that statement. Third, and most significantly, Associate Professor Ms E’s opinion is not on affidavit. His statements are hearsay. For these reasons, I give Associate Professor Ms E’s opinions no weight.
There is then the letter from Dr D. Dr D swore an affidavit in the proceedings and was available for cross examination. The letter from Dr D, which is attached to his affidavit, is brief and I set it out in full below:
To Whom It May Concern
Re: [Ms B]
DOB: [2000]
This is to certify that [Ms B] has been diagnosed with: Left temporal lobe focal Epilepsy related to Encephalocele. Intracranial resection/lobectomy surgery 2019 and 2020
[Ms B] has been suffering from ongoing focal partial seizure events comes in cluster around 4 events on a day with few days in between cluster, since age 12 years
The frequent almost daily cluster seizure events prevent her to engage any academic and paid employment activities, and significant adverse impact on her quality of life.
The two brain intracranial surgeries unable to cure or improve her seizure events. The epilepsy is resistant to multiple combination anticonvulsant medications. Currently she is on singular anticonvulsant medication, that has no significant effect to control her seizure.
Her frequent epileptic events cause secondary depression symptoms, she has been treated with Psychocouncelling therapy
She has been under regular follow up by term care at F hospital Neurology and by me as her regular GP.
Please contact me for any further information with her consent
Thank you.
Yours sincerely,
Dr [D]
There are various issues with the evidence given by Dr D.
First, the evidence set out above is conclusionary in nature. There is little underlying analysis or factual observations to support the conclusions. By way of example, in the evidence set out above, Dr D refers to ‘cluster’ events suffered by Ms B since the age of 12 years. During cross examination, however, Dr D stated that he had only treated Ms B since 2017. He confirmed he had taken a patient history from Ms B and her mother, and referred to external reports on which he relied. The evidence of what occurred between 2012 and 2017 given by Dr D is, therefore, not based on his observations or treatment of Ms B, but apparently from what Ms B and her mother had told him. Further, while Dr D said he had expert reports that he had read, none of those reports are in evidence before me. Dr D also expresses the opinion in his letter that the ‘cluster seizure events’ prevent Ms B from engaging in any paid employment activities. There is no explanation of the nature of the cluster event, how it manifests and how it affects the range of Ms B’s cognitive and physical capabilities.
Second, it became apparent during cross examination that Dr D’s knowledge of Ms B is far from comprehensive. As I have noted above, he has treated Ms B since 2017 and is therefore not able to express any direct opinion about what occurred prior to that time. There are, however, other more significant issues. He was not the medical practitioner that referred Ms B for her recent neurosurgery. It seems he only knew of the surgery because, in his words ‘they put my name as her GP, and I got the correspondence from F Hospital’. Furthermore, he gave evidence that Ms B had not completed her studies. While Dr D did not explicitly state what studies he was referring to, one inference able to be drawn is that he was referring to Ms B’s studies in Certificate IV in community work. Ms B did complete her Certificate IV in community work, but did not complete High School, a point the mother makes clear in her affidavit.
Third, Dr D has not observed any of the cluster events of which he speaks. He stated plainly during cross examination that he did not have the facilities to conduct such observations.
Fourth, I am unable accept given the state of the evidence before me that Ms B’s ‘cluster seizure events prevent her to engage any...paid employment activities’. As I have noted above, that is a conclusionary statement. The full facts supporting that conclusion have not been set out. Dr D has not provided any medical observation of Ms B, how long the seizures last or their effect on Ms B’s cognitive and physical capabilities. Moreover, he has not set out any factual basis for his conclusion that she cannot engage in ‘any’ employment. It is not apparent from the report what types of employment he has considered. It is not apparent whether he has considered alternatives to full-time employment such as part-time employment or casual work. It is not apparent that he has been presented with any detailed job descriptions that would enable him to reach a conclusion that Ms B is unable to fill various aspects of any particular role. There is certainly no evidence from an occupational therapist as to what types of work Ms B can perform or for how long she can perform them.
The deficiencies in the evidence around what employment Ms B may be able to undertake became apparent when I asked Dr D what type of employment he had considered when he had written his opinion. Dr D clarified that when he stated that Ms B could not engage in paid employment, he had in mind skilled work such as community work. It is clear from that answer that Dr D never turned his mind to what employment opportunities may exist beyond those types of employment.
Then there is the evidence of the mother. She deposes that Ms B suffers from seizures daily, and is on medication which has not been successful to date. She says that since 2015, Ms B has been admitted to hospital four times suffering from ‘clonic tonic’ seizures which affect her breathing. She says that Ms B suffers from poor short-term memory, is often exhausted and that her disability has hindered her ability to undertake work placements. The mother refers to Ms B’s brain surgeries in 2019 and 2020 respectively. She says in her affidavit that Ms B requires ‘constant supervision daily’ and sees her treating doctors regularly. The mother says there has been no change to Ms B’s condition for the better as a result of the recent surgeries.
The mother was questioned about the need for constant supervision of Ms B. Under cross examination, the mother contradicted her affidavit evidence. She gave evidence that Ms B is able to go out with friends for hours by herself. She gave evidence that Ms B is able to go shopping and attend doctor’s appointments. She gave evidence that Ms B has a boyfriend who stays over at her house once a month. Ms B visits him at his home as well, apparently for day times only for periods of 4 or 5 hours away from her mother, and does not stay at his house.
The mother was questioned about how Ms B could engage in such social activities away from the mother if Ms B’s seizures were as severe as claimed. The mother said that Ms B’s friends had ‘training’. Questioned as to what training the friends had had, the mother referred to first aid training, but in re-examination stated in effect that they know what to do because they spend time with her.
When all of the evidence is considered, I find that Ms B suffers from epilepsy. I am prepared to accept that she suffers seizures seemingly at regular intervals. I am unable to accept however, for the reasons given above, that the seizures prevent her from undertaking any employment. There is simply not sufficient and thorough evidence from an expert with direct knowledge of Ms B and her condition about the extent and duration of the seizures. There is not sufficient evidence from an expert about the after-effects of the seizures on Ms B’s physical and cognitive capabilities. There is no evidence from any expert or combination of experts articulating the extent of Ms B’s conditions and assessing that information against the full range of employment positions that may be available. In short, there is not sufficient evidence to persuade me that Ms B’s epilepsy (which I accept is a mental or physical disability) prevents her from undertaking all forms of paid work.
There are three other matters that require mention.
First, section 66J(1)(c) of the Act relevantly provides that in assessing the financial support necessary for the maintenance of a child, the Court must take into account the income, earning capacity and financial resources of the child. Subsection (3) to section 66J further defines what is meant by the phrase ‘income, earning capacity, property and the natural resources’ of child. In the present matter, the mother has failed to prove by reason of the matters I have referred to above that Ms B does not have the ability to earn income and does not have any earning capacity. Ms B’s capacity to earn an income remains unknown.
Second, section 66J(3)(b) requires that in assessing the income, earning capacity, property and financial resources of a child, the Court is to disregard among other things, ‘any entitlement of the child or any other person to an income tested pension, allowance or benefit’. That provision operates to require the Court to disregard the Centrelink benefits that Ms B and her mother receive. The section does not operate, however, to exclude consideration of benefits received under the National Disability Insurance Scheme (NDIS): see Zubcic v Zubcic and Ors [2018] FamCA 129 at [562]; Northam & Northam [2019] FCWA 240 at [101]. I observe that during the course of the hearing, it became apparent that an application has been prepared to the NDIS for Ms B but the application had not been submitted. Plainly, the outcome of that application is of significance in the event there is to be any further consideration given to an order for maintenance.
Third, section 66K of the Act sets out matters to be taken into account in determining the contribution to maintenance that should be made by a party. Insofar as this section of the Act applies to the father in these proceedings, it appears that he is not without resources. He earns an average weekly income of $2300 per annum, an amount which exceeds his personal expenditure. He owns a property with his new partner (mortgaged), holds approximately $150,000 in superannuation and is the owner of various cars, including what might be described as classic cars of some value. A preliminary view of his position suggests that he is in a position to meet an order for maintenance. Whether that is in fact the position, whether any order should be made, and the amount of any maintenance order that may be made if all of the other conditions are satisfied are not matters that need to be addressed in any detail now.
When all the above matters are considered, I find that the provision of maintenance in this case is not necessary because of the epilepsy that Ms B suffers from. The mother has failed to demonstrate that Ms B has no capacity for any type of work and that maintenance for Ms B is necessary. The application will therefore be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 17 November 2022
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