LYTTON & CALIX

[2020] FCCA 3279

FEDERAL CIRCUIT COURT OF AUSTRALIA

LYTTON & CALIX [2020] FCCA 3279

Catchwords:
FAMILY LAW – Application for adult child maintenance – father disputing child’s alleged incapacity to work – father alleging insufficiency of medical evidence – court satisfied child unable to work – court determining maintenance necessary because of mental disability of child – court assessing $150 per week an appropriate level of support – whether father able to pay – mother seeking lifelong payments – court not prepared to make order for indefinite payments – order made for payments for 18 months.

Legislation:

Family Law Act 1975 (Cth), ss.66J, 66K

Applicant: MS LYTTON

Respondent: MR CALIX

File Number: DGC 1288 of 2020

Judgment of: Judge Burchardt

Hearing date: 9 November 2020

Date of Last Submission: 9 November 2020

Delivered at: Dandenong

Delivered on: 4 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Stoilkovska

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Puckey S.C

Solicitors for the Respondent: Kennedy Partners

ORDERS

1. The father pay maintenance of $150.00 per week in respect of the child Ms A Calix born 2001 for 18 months from the date of these Orders.

2. Otherwise, all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1288 of 2020

MS LYTTON

Applicant

And

MR CALIX

Respondent

REASONS FOR JUDGMENT

1. This is an application for adult child maintenance in respect of a young woman, Ms A Calix, born on 2001.  The applicant, who is Ms A Calix’s mother, seeks that the respondent, who is Ms A Calix’s father, pay maintenance in a sum of $450 per week, to continue “until Ms A Calix no longer has a disability”.  CPI annual adjustment is also sought.  The respondent father seeks the dismissal of the application.

2. Although there are a number of sections of the Family Law Act 1975 (Cth) that bear upon the matter, the three central questions the Court is asked to address are: (a) is the provision of the maintenance necessary because of a mental or physical disability of the child, and (b) can the respondent father properly be ordered to pay some or all of the sums claimed, and (c) should the payment be without time limit.

3. For the reasons that follow, I am going to order that the father pay periodic weekly child support for 18 months from the operative date of these orders in the sum of $150 per week.  It is not necessary to index the sum concerned given the current effective zero rate of inflation.

Agreed or Uncontroversial Matters

1. The applicant mother was born 1972 and the respondent father was born 1970.  They married 1996, separated in January 2006 and were divorced in 2007.  In addition to Ms A Calix, who was born 2001, they also have Ms B, born 1995, and Mr C, born 1999.

2. The father has repartnered with Ms D in November 2007 and they have two children, twins born in 2010, both of whom have special needs, having been assessed at about the age of three with global developmental delay.  Very unfortunately, Ms D had a stroke on 1 August 2019 and her affidavit details the difficult sequelae to that medical condition.  She is, however, in an 18-month contract with her employer that pays her a very substantial amount of wages.

3. The mother lives with her father on a large property wholly owned by him and unencumbered.  I will return to who has been living there and how much they contribute in due course, but all concerned, including the mother, are reliant only on statutory benefits.

4. The husband is in long-term employment with the Employer X.  He has had to reduce his five-day week to four days to assist Ms D with her difficulties but still earns $1628 per week net of tax. 

5. The mother and father entered into a property settlement in March 2008, pursuant to which the mother received $187,000 plus superannuation adjustment in her favour of $40,000.

The Parties’ Affidavits

1. Much of what the parties had to say in their affidavit material is, in fact, traversed in the materials above.  The mother’s affidavits detail her most unfortunate difficulties with mental health, which have been and appear to remain serious.  They also depose to the difficulties suffered by Ms A Calix from time to time.  In her affidavit, the mother deposes to the fact that Ms A Calix has been diagnosed with borderline personality disorder and cannabis use disorder.  She asserts that (paragraph 10):

   her current condition compromises her ability to obtain and maintain gainful employment and financially support herself. 

2. I note that in 2016 Ms A Calix was admitted to the Emergency Department at Hospital E for a crisis mental health assessment and was referred to the Child and Youth Mental Health Service (CYMHS) as a result.  Ms A Calix commenced regular therapy sessions with CYMHS in November 2016 with a psychiatric nurse, Ms F, and also had monthly consultations with psychiatrist Dr G.  She was admitted around 15 November 2016 into Psychiatric Unit H at Hospital E and was discharged on 21 November 2016.

3. The affidavit deposes that around 28 February 2017 Ms A Calix was admitted to Psychiatric Unit H at Hospital E and was later discharged on 3 March 2017. 

4. For reasons deposed to in the affidavit, CYMHS ceased offering assistance on 15 March 2018.  On 16 September 2018, the mother attempted to end her life and this led to Ms A Calix going to live with the father.  On 27 January 2018, Ms A Calix commenced casual employment at Employer I and, according to the mother, on 15 March 2019 Ms A Calix was evicted by the father from his home.  She went to live with her boyfriend.

5. The mother was an inpatient at Mental Health Service J from 1 April 2019 to 17 May 2019, and the mother deposed at paragraph 30:

   On 2 June 2019, Ms A Calix had a breakdown whilst at work due to depression and suicidal ideations.

6. On 17 June 2019, Ms A Calix was assessed by Dr K as high risk of self-harm and made referral to Mental Health Service J for an urgent admission.  On 1 July 2019, Ms A Calix was admitted to Mental Health Service J for treatment and later discharged on 11 July 2019.  She went to live with her boyfriend.

7. On 1 August 2019, Ms A Calix was readmitted to Mental Health Service J for further treatment and was discharged on 5 September 2019, following which she returned to live with the mother and her siblings at the grandfather’s residence.  In November 2019, she changed psychiatrist to Dr L.

8. The affidavit detailed ongoing treatment for Ms A Calix.  I note that at paragraph 52, the mother deposed:

   Since 28 July 2019, Ms A Calix has been excused from jobseeking requirements by Centrelink as she has been deemed medically unfit to work.

9. The affidavit went on to detail (paragraphs 53-54)

   Due to my low income and my high medical expenses, I am not able to purchase food or other household expenses on behalf of my father, Ms B or Mr C.  Ms A Calix and I contribute funds to cover our share of the utilities, food and groceries purchased for the household from our Centrelink benefits. 

   My father is currently 76 years old and his sole source of income is a means tested age pension from Centrelink.  My father is not able to financially support Ms A Calix with her medical expenses, apart from providing accommodation in the interim as the children and I cannot afford a private rental.  I am seeking financial support from the respondent so Ms A Calix and I can afford to contribute to the housing expenses in the form of board to my father or obtain independent housing.

10. The father’s affidavit filed 13 July 2017 details his relationship with Ms D since November 2007 and the advent of their two children, M and N, and notes their global developmental delay.  He details the history of the support of the children post-separation and asserts at paragraph 7:

    The applicant has a history of alcoholism, anger management, mental illness and family violence.

11. The affidavit is directly responsive to the mother’s affidavit and puts in issue a number of matters which, in my view, are not perhaps now of such particular significance, but I note that at paragraph 11.1 he deposes:

    I do not admit Ms A Calix has a disability that affects her capacity to earn income and become self-supporting.  Ms A Calix enjoys good physical health.  She does not suffer from any intellectual handicap and is a high functioning adult with sound communication and cognitive skills.  Although her mental health is currently unstable, with proper support, encouragement and treatment, Ms A Calix can achieve better stability and independence.

12. I note that the father’s affidavit concedes that the mother was admitted to Mental Health Service J from 1 April 2019 until 17 May 2019.  He puts in issue the allegation that Ms A Calix had a breakdown at work.  He deposes that following Ms A Calix’s admission into Mental Health Service J his relationship with her deteriorated significantly and that she now refuses to engage with him (paragraph 30).  I note perhaps importantly at paragraph 32 the father deposed:

    I have serious misgivings about providing financial assistance to Ms A Calix through the applicant in the manner sought.  Historically, the applicant has not managed her money well and she suffers from alcohol abuse.  I am not convinced any support I give to Ms A Calix through the applicant would benefit Ms A Calix directly.  Ongoing payments, for an indefinite period, will not help Ms A Calix achieve financial independence and stability and I fear it would have an adverse impact.  I have always provided emotional and financial support to my adult children, as required; whatever surplus income I have after meeting my share of the family’s expenses is directed towards them.

13. He then goes on to assert that he is unable to pay $450 per week.  His income is $118,842 gross, being $1628 per week after tax.  He notes that Ms D has less than 18 months left on her current employment and, given her disabilities, her prospects of further employment are tenuous.  His own children with Ms D have special needs and their tuition fees are about $870 per week.  He deposed that he and Ms D do not intermingle their respective incomes and do not have a joint account but have a longstanding arrangement in terms of paying for the family’s expenses.  The father pays almost all the family’s household bills and Ms D pays for the mortgage instalments and school fees. 

14. The father has also filed an affidavit by Ms D which confirms the most unfortunate circumstances of her stroke and the difficulties that this gives rise to. 

The Report of Dr O

1. Dr O’s report annexed to his affidavit affirmed 18 June 2020 confirms that he assessed Ms A Calix on 15 November 2019.  I have regard, of course, to the entirety of the report.  I note at paragraph 36 the report observed:

   She has self-harmed since age 13 with very frequent self-harm up to daily between age 13 and 16 and since then self-harming approximately every second week.  After the termination of pregnancy over a month ago, she cut her shoulders and legs and was purposely cutting in places that would not be easily visible.  She also stated that she puts out cigarettes with her fingertips.

2. I note at paragraph 51:

   The Discharge Diagnosis in the Case Closure Report dated 15 March 2018 was borderline personality disorder and unspecified anxiety disorder.

3. I note that on 16 October 2018 Ms A Calix presented to the Emergency Department wanting a crisis admission as a result of increased distress due to her mother’s suicide attempt.  She was deemed suitable but changed her mind (paragraph 52).

4. The report noted the two admissions in 2019 (paragraph 53) to Mental Health Service J.  Paragraph 61, the report reads:

   In answer to your questions: 

   ·Diagnosis and prognosis of the condition? 

   In my opinion, Ms A Calix suffers from borderline personality disorder.  I agree with the diagnosis made by Psychiatric Unit H who have had significant involvement in her assessment and treatment.  She has significant mood instability, with significant depression that appears part of her personality disorder.  She has associated anxiety with elements of post-traumatic symptoms and she has some features of bulimia nervosa in the past.  She has more recently suffered from a cannabis use disorder.

   In terms of prognosis, Ms A Calix is still relatively young and still requires further antidepressant and psychological treatment including dialectical behaviour therapy.  I believe it is too early to give a firm prognosis, but it is clear that she has had a significant degree of treatment without enduring improvement in her mental state and functioning.  I have no doubt that for at least the next several years, Ms A Calix’s mental health will be unstable and her care needs high.  She is likely to have ongoing difficulties with self-harm and will need further hospitalisations.

5. Under the question “How the condition affects her ability to obtain employment or pursue full-time studies?”, the report observed:

   In my opinion, Ms A Calix’s mental health is not stable.  She has significant self-harm and instability of her moods which compromise her ability to obtain employment or pursue full-time studies.  In terms of daily tasks, Ms A Calix requires prompting in terms of her activities of daily living and she requires to be accompanied if she goes out.

6. Dr O was unable to give a specific timeframe for recovery, noting that personality disorder tends to be a lifelong difficulty but can change and burn out over time.

The Submissions and Evidence at Court

1. What follows is from my notes. 

2. Counsel for the mother opened the case and indicated the nature of the dispute.  She noted that the mother sought there be no time limit on the payments to be ordered.

3. The mother was called and adopted her affidavit as true and correct.  She gave further evidence-in-chief by leave. 

4. Her health insurance now costs $100 per week and includes Ms A Calix.  It is top cover with a $250 excess.  She can get psychiatric hospital cover and unlimited access to therapy groups. 

5. The mother gave further evidence about more recent admissions to hospital.  Ms A Calix was in the Mental Health Service P from 14 June 2020 until 21 July 2020.  She was readmitted to Mental Health Service J on 21 August until 18 September 2020.  On the day of the trial, she had just been admitted to Mental Health Service J for two weeks for TMS.  TMS will continue indefinitely.  Ms A Calix has had suicidal ideations and self-harm.  She (the mother) had had to lock up all medications and knives in the property.  TMS is transcranial magnetic stimulation, which is a form of treatment gentler than but not totally dissimilar to ECT.  Ms A Calix has complex PTSD and ADHD and is medicated for both.  She has various drugs accordingly.  She also has diazepam (Valium) if she has panic attacks.  She has a very low white blood cell count and is going to see a rheumatologist.  She might have lupus.  Her medications cost $55.73 per week.  At the time of her affidavit, Ms A Calix had been only on sertraline.  The mother herself pays $27.70 per week now that she has reached the relevant threshold.  Ms A Calix sees the psychiatrist monthly but every day while she is in hospital.  Her own interlock is now removed and she is not paying for it, and the car loan has been paid off.  She herself is under the care of a psychiatrist, Mr Q.  She has a letter from him and also a medical certificate for rheumatoid arthritis.  Her adult son, Mr C, moved out two weeks ago and the other daughter, Ms B, is now working.  She earns $26 per hour as a casual for a couple of days per week.  Ms A Calix pays $200 per week board.  She can cover Ms A Calix’s phone within that and her food.

6. Under cross-examination, the mother confirmed that her financial statement was true and correct.  She had told her lawyer about the updates and expected the lawyer to deal with those.  She has no communication with the father but he never asks anything either.  She agreed she received a property settlement of $180,000 plus a car.  She paid the husband $10,000 for that.  She retained her super, and the home was sold.  She is not employed.  She has worked post-separation.  She started selling uniforms and then was a bookkeeper for a firm of mechanics.  Then she had a breakdown.  She has had a business for 10 years but cannot continue because of her rheumatoid arthritis.  She stopped the business when she tried to take her life in September 2018.  She has not made any applications for employment since.  She receives a carer’s allowance for Ms A Calix, and child support was paid as assessed.  The husband paid private school fees for Ms A Calix.  The husband was paying $1,500 a month child support for Ms A Calix in 2018 which stopped in November 2018.  Ms A Calix moved to the father because she was unwell.  She had lost her drivers licence for suicidal drink-driving.  It was her partner’s car.  This was not because of a relationship breakdown.  Her licence was suspended for 14 months following a reading of .014.  Ms A Calix was completing year 11.

7. She lives in her father’s home.  He owns it.  She has been there for seven years.  They share living expenses.  There were five adults living there until Mr C moved out.  Mr C is working.  She was on Newstart, $250 per week.  In August 2019, she got a carer’s allowance.  Ms A Calix is not on Jobseeker and has a different allowance.  They share expenses and make ends meet.  Ms A Calix returned in mid-2019 and she continued to make ends meet but only just.  Ms B has enrolled in a course in Canberra and will be moving as soon as possible.  Her health insurance is now $100 per week.  The health insurance for Ms A Calix has increased by $15 a week for both of them, and overall their medical expenses are probably equal between them.  She was cross-examined about the $55 disclosed in Part N for medical expenses for Ms A Calix.  These were gaps between treatment and insurance.  The chemist has increased to $55.73 per week for Ms A Calix, whereas her own is down to $27 per week because she has reached the limit with PBS.  Ms A Calix notionally pays $160 a week to her father but it is still not actually paid.  The $32 for Ms A Calix’s telephone each week is her mobile.  She agreed that the household supplies item could be struck as it was double counting.  When they first moved in, she paid rent of $500 per fortnight.  Ms B was paying for the storage facility but she is paying for it now.  Ms B is now paying for groceries.  It is quite a large property.

8. Ms A Calix’s difficulties are longstanding.  She sees a psychiatrist and psychologist.  Ms R is the psychologist and Dr S is the psychiatrist now.  She was seeing Dr L through Mental Health Service P.  Before that, she was with Dr T but she changed to have a female psychiatrist.  This treatment with Dr S began in August.  Dr L was in December 2018, and before that it was Ms F.  There is no evidence before the Court from the prior doctors.  There were problems with school attendance in 2018. 

9. The father paid child support for one month after Ms A Calix moved to him.  Then it was $7 per fortnight from the mother to him.  She did not pay as they told her that she did not need to.  Ms A Calix passed year 11 but does not have a drivers licence.  She was unaware whether the father says he paid to assist Ms A Calix to get a drivers licence;  nor did she know that he had paid $1600 for a roadworthy.  She accepted that the father had paid for Ms A Calix’s vocational training courses.  He had assisted her getting part-time jobs and got her a job at Employer I. 

10. In March 2019, Ms A Calix left the father.  She (the mother) was in Mental Health Service J in April to May.  Ms A Calix went to her boyfriend as there was no choice.  She then got a job at Employer U.  In June 2019, Ms A Calix had health problems.  This was partly because of the mother’s own mental health problems.  The father met Ms A Calix and made suggestions.  He gave her cash and she bought drugs.  She has marijuana abuse disorder.  It began when she moved in with the father, although she was not saying that this was his fault.  There was a disagreement about Mental Health Service J which led to the breakdown of the relationship between the father and Ms A Calix.  She was cross-examined about annexure “C-1” to his affidavit but said she did not know if this was still Ms A Calix’s attitude.

1. She seeks $450 per week in cash.  She accepted that the father’s proposal to pay health insurance of about $50 per week was the correct figure.  She did not know if it was the same insurer.  She had upgraded to Top Gold with W Insurance.  She did this when she found out that there was limited day group therapy.  Silver would only pay two days.  She pays extra on top for unlimited day group.  Gold has a limit on psychological treatment.  She has negotiated so that there are no limits and she has unlimited day group access.  She accepted that the husband had offered to pay the $50.  It was put that the father was prepared to pay 100 per cent of any gap payments if they were agreed and 50 per cent if they were not.  The mother said this was the problem.  He has to agree, and she does not trust him.  It is about Ms A Calix’s medications and ongoing psychiatry and psychology treatment.  It is not covered by W Insurance.  Insurance covers the hospital treatment.

2. She is on Top Gold 60, and the husband is on Top Gold 75.  It was put that the hospital cover covers 100 per cent of psychiatric treatment.  The mother said yes.  That was the $10 extra she pays.  Hers is Top Extras 60.  She did not have insurance for counselling.  There was a limit of $400 annually.  It was put that the husband proposes that he already has a policy that will cover Ms A Calix. 

3. The mother says she will have a policy that covers Ms A Calix.  She has a card on which she can claim.  Ms A Calix does not have a card.  She is with Ms A Calix every appointment she goes to.  There are no practical problems for him paying the premium.  It was put that if there was a gap in respect of day treatment, her insurance would pay, and she said she agreed.  She was very loath to believe that the father would pay gap payments.  She does not trust him to pay.

4. It was put that, in theory, the father could reimburse gaps, but the mother said most of the time she struggles to pay gaps.  A credit card for Ms A Calix would work if he did not cancel it like he did the last policy.  She would accept pharmaceutical payment benefits being included, if he actually did it.  It would release her from $100 costs at least. 

5. In re-examination, the mother confirmed that she could not agree a course of treatment with the father.  Ms A Calix left Employer I.  She had a breakdown at work and walked in front of traffic.  She has none of the property settlement left, as she has spent it on the children.  She has a very  limited capacity to work because of Ms A Calix.  She undertakes group therapy every Tuesday.

The Evidence of The Father

1. The father adopted his affidavit as true, and financial statement as true and correct.

2. Under cross-examination, he was asked if he was going to return to a five-day week.  He did not intend to return to five days for the foreseeable future because of the needs of his partner and children.  The children have global developmental delay.  He had not had discussions about five days work with his employer.  He accepted there was nothing beyond his statement about the medical conditions.  He pays ambulance cover to cover non-emergencies.  There is some overlap with his partner on elements of expenditure. 

3. The sports club membership is worth $7,000, but there are ongoing fees.  There are annual subscriptions and work party fees of about $800 per annum.  This was $15 in his Part N. The speech pathology rebate cuts out at $400, and at the moment he has paid it all.  The lockdown has led to changes, such as additional lighting and the like.  He considered that in 2017 to 2018 his five-day week salary was $141,000 per year.  There will not be further yearly increases.  The twins are at private school.

Final Submissions by Counsel for the Father

1. Counsel indicated that he relied upon his written submissions. The legislation was clear and mandatory. Section 66 required that payment be necessary. He referred to section 66J(2)(a)(iii). The Court must take into account the special needs of the child. The report of Dr O was from 19 December 2019 evidence did not establish necessity.

2. Section 66K required the Court to consider the earning capacity of the parents, their commitments and special circumstances. A lifelong order is sought, and this would give rise to injustice. There is no communication between the parties, and also the father and Ms A Calix. The payment was sought whether she had a job or ceases to live with the mother. The father will not know what is going on. There was very little evidence from the mother. Ms A Calix went to the boyfriend and then to the mother. The evidence is all cold.

3. It is not known why she left her employment.  Dr O had no clinical experience with Ms A Calix.  There was no evidence from her treating psychologist or psychiatrist.  There was nothing from Dr T or Dr L.  Ms A Calix is now with a female psychiatrist, and there was no current evidence of Ms A Calix’s health.  It was submitted that there was no disability.  Ms A Calix had undertaken courses and had two jobs at Employer I.  A maintenance order was not necessary. 

4. The child is a mental health patient.  There are no out-of-pocket costs as an inpatient.  The father does not know what is going on.  The father had always paid child support and school fees.  On one occasion, the father did not agree with Mental Health Service J, but there were no other disputes.  The father keeps medical insurance for Ms A Calix.  The only need is medical needs, and the father volunteers to pay in full.  The mother seeks weekly expenditure, but there is no evidence from the child. 

5. The child has sent the Instagram message attached to his client’s affidavit.  Ms A Calix was not on affidavit.  It was only the mother’s say-so what the needs are.  The mother’s costs of $550 per week included $160 to the grandfather.  She seeks an order for $450 per week, even though $160 is to go to the father.  The mother will not give $320 to her father.  There’s $160 from her and $160 from Ms A Calix, plus $160 from Mr C or Ms B.

6. It was submitted that there is no evidence of the mother’s earning capacity, and she was not applying for work. 

7. Dealing with matters of discretion, counsel noted that Ms A Calix has cannabis use.  Dr O says she is a smoker.  Ms A Calix does not want a relationship with her father, and his offers of help were rejected by the mother.  There should be no cash payments to the mother.  He will pay medical needs.  There is not enough to meet the tests in section 66L.  Counsel conceded the Court cannot take account of Centrelink for financial needs, but can accept that the child has a roof over her head, and the mother can make ends meet.  There could be direct debits or emails if difficulties arose. 

Final Submissions by Counsel for the Mother

1. Counsel submitted that maintenance was necessary in the terms of section 66L(1)(b). It was not necessary for a disability to be permanent. Ms A Calix has ADHD and PTSD and has been self-harming since 2013. Dr O says this could be lifelong, but at least for the next several years. Ms A Calix left school at level 11 and had two brief jobs at Employer I. She received Centrelink, but section 66K(4) means this should be excluded. The grandfather is a 76 year old pensioner on benefits.

2. It was submitted the father had the capacity to pay.  He is 50 years old and has been employed by Employer X for 26 years and earns $118,000 for a four-day week.  His partner makes $160,000 per annum, and there is no medical evidence about her condition.  She is apparently able to honour her contract. 

3. The husband spends $105 on hobbies, sports club $15, holidays $24.  He has been given a gift of $8000 by his parents (who I note are deposed to be paying his legal fees).  Counsel sought the orders in an outline of case.  Counsel noted the orders proposed by the respondent that the mother wants periodic order.  There will be enforcement issues if there is disagreement.

So Does Ms A Calix Suffer from a Mental or Physical Disability that makes it Necessary for the Provision of Maintenance?

1. This case has been characterised by a lack of generosity on both sides.  On the father’s side, both his evidence, and, indeed, the submissions which counsel made on his instructions for him, seem to go close to showing a pitiless lack of charity.  The mother was cross-examined about her very serious mental health difficulties in a fashion that suggested a complete absence of sympathy for what, on any view of the matter, is a distressing circumstance. 

2. This attitude also permeated the approach to the diagnosis of Ms A Calix’s health.  True it is that Dr O is not Ms A Calix’s treating practitioner, but he is an extremely experienced psychiatrist who was not required for cross-examination.  He saw Ms A Calix in November 2019 and, at that time, was clear, and expressed the view to this effect, that Ms A Calix suffers from borderline personality disorder.  His opinion was that this would compromise her capacity to work.  Indeed, Ms A Calix requires assistance to organise herself and to go out. 

3. It is, of course, true that Ms A Calix is not on affidavit, but there is no reason to doubt the mother’s account of the events to which she has deposed which can only, to the extent that they are hearsay, have come from Ms A Calix herself.  Ms A Calix had a condition likely to continue at least for several years only about one year ago.  I accept that she has had two part-time jobs, but I also accept that one of these led to a breakdown. 

4. It is incontrovertible that Ms A Calix has had two reasonably lengthy admissions in 2019 and two longer ones again in 2020.  As at the date I dictate these reasons for judgment, she has been recently readmitted for ongoing indefinite treatment of TCMS.  It is immediately apparent, in my view, taking this evidence fairly, that Ms A Calix is disabled and cannot reasonably be expected to hold down employment.  She is equally unable to study.  There is no doubt in my mind that Ms A Calix suffers a disability such that she cannot be expected to work. 

Is the Payment Necessary?

1. The position of the father is that payment is necessary in part, and he is prepared to make some payments to this end.  In part, one of the things he dislikes is the proposition that he should pay any money directly to the mother because he asserts she will simply abuse it by misusing it for herself.  Counsel also emphasised the answers given by the mother in cross-examination to the effect that in the past she has been able to make ends meet. 

2. There are a number of matters to be noted.  First of all, it is true that the mother has a roof over her head.  Insofar as she seeks to pay rent to her father, in my view, this scarcely gives rise to a necessity for the father to support Ms A Calix.  Her father lives in an unencumbered home and has the benefit of comingled finances with his daughter and granddaughter.  I accept that Mr C has moved out, and I accept that Ms B will do so relatively soon.

3. Although the evidence is not clear as to when this latter will occur, it is, undoubtedly, going to occur.  Given the march of the recent satisfactory developments in relation to COVID, it may well be sooner rather than later.  I further observe that, albeit that the Court is formally obliged to ignore any welfare payments received by both Ms A Calix and anyone with whom she lives in relation to income received in the form of statutory benefits, the fact is that the mother’s own evidence is that they have been able, as it were, to scrape by (“make ends meet”) in the past.

4. Nonetheless, the mother’s evidence is reasonably clear, in my view.  She has very high medical expenses, both for herself and for Ms A Calix.  Her household is plainly very poorly financially resourced.  If one ignores the pensions paid to her father, to the mother and to Ms A Calix, there is really no income at all.  In my view, it is plain that there is a need.  Accordingly, it is plain that the applicant has established that adult child maintenance is necessary because of the physical disabilities from which Ms A Calix suffers.

5. The sum I would fix is $150 per week. The mother has very extensive medical and related expenses in respect of Ms A Calix. Indeed the husband appeared to be prepared to pay up to about $100 per week provided he received copies of bills and found the expenses appropriate. The evidence in my view, (bearing in mind the limitations in s. 66J(i) of the Act) comfortably supports a conclusion that $150 per week is an appropriate amount to order.

Is it reasonable to require the husband to pay?

1. Looked at superficially, this would seem to be a very easy question.  His household has combined income of over a quarter of a million dollars per year, which at one level of analysis speaks for itself.  That is by no means, however, the end of the matter.  The husband and his partner, Ms D, have very substantial expenses in respect of their own children.  It is $807 per week for their education, and given their global developmental delay and youth, together with the very proper and understandable desire on behalf of their parents to optimise their development, that expense cannot in any way be said to be unreasonable.

2. The future earnings of Ms D are open to significant question in approximately 18 months time, assuming her condition does not worsen, and I fully accept that any question of a return to a five-day working week for the husband is completely at large at present.

3. Having said that, he only pays half of the school fees and expenses, estimated at $440.  The private health insurance to which he refers, which includes Ms A Calix, is paid by Ms D, and she pays $350 towards her share of the living expenses. 

4. When one looks at the father’s Part N, the figure of $400 a week for the household, for food, seems surprisingly high, especially bearing in mind that they must surely purchase as a family unit.  Entertainment/hobbies is $105 a week also seems high.  Looking at the matter as a whole, and bearing in mind the sports club, the picture that emerges, in my view, is one of an affluent household.  In my view, the father can reasonably be required to pay adult child maintenance of $150 a week.  It needs to be borne in mind that the figure of $150 for Ms A Calix is low compared to the $800 for the other children, notwithstanding their additional needs. 

5. I would not be prepared to order the husband to pay money to the mother for child support , and this then simply be given to her father by way of rent.  There is no evidence to suggest that he needs it, and it is plain that whatever arrangements he has had with the mother have been in place for at least seven years.  What persuades me in the ultimate that the payment is necessary is the very high level of medical expenditure that the mother’s household and, in particular, Ms A Calix gives rise to.

6. Indeed, the figure I am ordering is not so very much greater, at one level of analysis, than what the husband himself said he was prepared to pay, provided it was by agreement.

7. I would make it clear in passing that I do not accept the father’s criticisms that the mother will fritter the funds away upon herself.  Her evidence about the scrimping and scraping which she has had to undertake was given with complete conviction, and I accept it.  There can be no question of any payment as by way of agreement or upon presentation of bills.  Given the clearly toxic relationship between the parents, this will just give rise to more litigation.  I will order the direct payment of $150 per week.

How Long Should The Payments Continue For?

1. The notion that payments should go on for the rest of Ms A Calix’s life, or at least without definite finishing date, is plainly untenable.  Counsel for the father is correct to submit that this would be unjust.  In my view, these payments should subsist for another 18 months.  By then Ms A Calix will be over two years from the date of the diagnosis by Dr O, and her future may be more clearly apparent.  More to the point, so too will the future earning capacity of Ms D which, after all, is a very significant matter, albeit that it has lurked something in the background in this proceeding. 

Conclusion

1. On the materials and evidence provided, I fully accept that adult child maintenance for Ms A Calix is necessary because of her mental and physical disability. For the reasons given, the Court will order the payment of $150 per week for 18 months from the date of these orders.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 4 December 2020