MILBRAND & MILBRAND

[2020] FCCA 2649

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILBRAND & MILBRAND [2020] FCCA 2649

Catchwords:
FAMILY LAW – Application for adult child maintenance for the rest of the child’s life – father in full-time, well paid and long lasting employment – mother unable to work for foreseeable future owing to care of the (19 year old) child – father retaining former matrimonial home and mother in rental property – NDIS fund not defraying any of child’s living expenses – order that father pay $200 per week for five years.  

Legislation:

Family Law Act 1975 (Cth), ss.66B, 66C, 66K, 66L, 66P

Applicant: MS MILBRAND

Respondent: MR MILBRAND

File Number: DGC 1008 of 2020

Judgment of: Judge Burchardt

Hearing date: 14 September 2020

Date of Last Submission: 14 September 2020

Delivered at: Dandenong

Delivered on: 25 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Stoilkovska

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Not Applicable

ORDERS

1. The father pay adult child maintenance in respect of the child X born in 2001 in the sum of $200 per week for five years from the fate of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1008 of 2020

MS MILBRAND

Applicant

And

MR MILBRAND

Respondent

REASONS FOR JUDGMENT

Introductory

1. The matter before the Court is an application for adult child maintenance.  The applicant mother seeks that the respondent father pay $400 a week, backdated till February of this year, in respect of the parties’ child, X, born in 2001.  She seeks that this sum continue for the rest of X’s life and that it be indexed by the consumer price index once per year.  The respondent father says he is unable to pay.

2. For the reasons that follow, I am going to order the father to pay the sum of $200 per week from the date of operation of these orders for the next five years, at which time the matter may be revisited.

Agreed or Uncontroversial Matters

1. The mother was born in 1974 and the father was born in 1968.  They commenced a relationship in about 1994 and married in 1996.  Their children, Ms B, born in 1997, and Ms C, born in 1998, followed in due course and, as earlier indicated, X was born in 2001.  The circumstances of the two elder children appear to be unremarkable and they appear to be supporting themselves in adult life without any noted difficulties.

2. Tragically, X has had a very, very difficult medical history.  It is denoted in the unchallenged reports of paediatric psychiatrist, Dr D, in 2017, and the two more recent reports of Dr E annexed to Dr E’s affidavit received into evidence, albeit without jurat, having been declared on 26 August 2020.

3. It is not necessary to refer to those two distressing reports in any detail.  It is enough to say that X is beset with difficulties.  The father expressly disdained any desire to cross-examine either of the two medical specialists, or indeed the mother, for which I may say in passing, in the circumstances of this case, he is due some considerable credit.  It is perhaps sufficient to refer to the following extract of Dr E’s report dated 10 August 2020:

   She needs ongoing lifelong supervision, cannot manage daily simple things, eg:  driving, learning, cleaning, using public transport, handling money, vexcry hard for her to live independently.  Other relevant considerations include:  limited food tolerance, phobias, severe paranoia, reverting to baby/toddler behaviour including tantrums.

4. Dr E’s evidence is fully supported by the evidence of the mother, whose evidence, I repeat, was not the subject of cross-examination or challenge.  The mother is unable to work and suffers from depression (Dr E’s medical evidence is unchallenged.  See exhibit A1).  The mother, effectively, looks after X full time.  X has a composite IQ of 51, which speaks for itself as to the likely limitations in her future.

5. Following separation in 2006 (father’s version) or 2007 (mother’s version), the parties put in place a week about shared care arrangement.  This continued until 2012 when the mother travelled to Melbourne for X to undergo yet further surgery, and the mother and X (and indeed the other two children) have remained in Victoria, as far as I can see, ever since.

6. The mother and X subsist upon statutory benefits.  Although X has the benefit of as much as $66,869 per year in National Disability Insurance Scheme, these do not actually pay for any of X’s day-to-day costs. 

7. The father’s income was a matter in dispute, but there is no dispute that he has been for some 24 years in permanent employment in Tasmania with a base salary of $75,000.  At times, his earnings including overtime on what was previously a split shift, were as high as $125,000 a year, this being the figure at which he was most recently assessed to pay child support.  He paid child support in respect of X, until X’s schooling finished in late 2019, in the sum of $369 per week.  Since then, he has ceased all child support payments.

8. The father continues to reside in the former matrimonial home in Tasmania, in respect of which he has a mortgage in excess of $200,000.  The mother and X live in rental property and are presently on a priority list for government housing.  The mother’s financial statement says she pays rent of some $390 a week, which is a lot, bearing in mind that the income of her household consists of some $571 a week in statutory benefits to the mother, together with $186 paid to X.

The Parties’ Affidavits

1. I have paraphrased almost everything in the parties’ affidavit material in the agreed section above.  The only additional matter that needs to be noted is that in the father’s affidavit, he has laid emphasis upon the mother’s unilateral move to Victoria and subsequent alienating of X from him.  He has asserted that X thrived while living in Suburb F and was progressing well at school with the assistance of an aide (paragraph 59).  He has also asserted that the mother could work as a health care worker although, as I have earlier indicated, the wife has deposed convincingly that she is not, and she was not challenged under cross-examination.

2. Finally, I note the husband has deposed to have superannuation of $251,277, which is contrasted with the wife’s superannuation savings of $0.

What the Parties Said at Court

1. What follows is taken from my notes.

2. Counsel for the mother opened the case.  It was submitted that the father’s affidavit material was essentially irrelevant.  As earlier indicated, the father reconfirmed that he did not wish to cross-examine any of the mother’s witnesses. 

3. The father made a relatively extensive opening.  Given his self-representation, it did not entirely focus on matters that were directly relevant to the application before the Court, but over the objection of counsel, I pointed out that it was proper to give him on opportunity to say what he wished to say.

4. The father said that X had been taken from her home and school against his wishes.  He said the mother left because of an affair, not because of medical needs of X (given that this was some six years or so after separation, the accusatory note in the father’s address seems somewhat striking).  The father said that previously they had a 50 per cent shared care arrangement.  X was happy and fun-loving before she was taken to Melbourne. 

5. He now understands that X has medical problems.  A clamp slipped and surgery was abandoned.  She had 32 operations.  X was doing very well on the 50/50 arrangement.  He had fought the hospital but lost.  The NDIS was compensation for X.  He would like X to live in Tasmania.  She misses her father.  He has had no contact with X over the last 10 years.  He finds out what is happening to her through her sisters.  The mother has turned the child against him. 

6. He thought the amount claimed (i.e., the $400 per week) was excessive.  He paid until the end of X’s schooling.  She had a job at Hungry Jack’s and a boyfriend.  Last year, he earned $91,000 but that will drop again.  It will go down $21,000 because shifts have been removed. His base salary is $75,000.  He has no savings but lives comfortably.  He wants a fair result.

7. The father was affirmed and adopted his affidavits and financial statements as true and correct.

8. Under cross-examination, the father said he was assessed in 2009 to pay child support of $369 per week.  He had estimated his wage to the child support agency as $120,000, although he did not earn $120,000.  He felt it was better to overestimate.  He, in fact, earned $115,000.  His base rate is $75,000.  He gets inconvenience allowances.  There has been a change of ownership of the company and 150 jobs had been lost.  It used to be a seven-day roster, but it is now six days.  Bonuses have been gone for two years.  He will earn less in the next financial year.  They have told the workforce that it will last for two years.  Crops are smaller.  It used to be 180 tonnes; now it is 100 tonnes.  Various aspects of the industry were decreasing.

9. The father was cross-examined about salary sacrificing to superannuation.  He agreed that he had sacrificed $5,000 but first said it only happened for one year.  Under further cross-examination, however, it emerged that he had been sacrificing at least $4,000 a year since the 2017 tax year.  In 2020, half his time was on the seven-day roster, and half was on the six-day roster.  He has been with the employer for 23 years.  His health is okay, but he has a letter showing his blood pressure at 157/109.  His knees are going.  He does not sleep, because he has been a shift worker for 23 years.  He could not run from here to the corner.  He hopes to stay with his employer until he is 65. Two hundred jobs have gone in the last couple of years and there are a number of uncertainties.

10. He was cross-examined about insuring his home $504,000 and the contents at $88,000.  His answer was to the effect that there was no additional premium for the increased sums, but they were wildly in excess of what they were worth.  His furniture might be worth 5 to 10 thousand dollars, yet the insurer has told him to insure to rebuild.

11. There was cross-examination about vehicles in the father’s possession but, in my view, this took the matter nowhere.  He was cross-examined about his partner, Ms G, referred to in his affidavit.  He said Ms G was from Country H and had come on a two-year contract arriving in January 2020.  She now lives in the Region J.  Her employer reduced her hours by half and so she got a job on the Region J.  They are still good friends.

12. The father said he does not have any money.  He has bills coming in and is $1,200 overdrawn.  He is paid monthly and contributes $1,500 to the mortgage per month.  It was put to him that by 31 December 2019 he had paid $2,590 over and above the minimum requirements.  He said he had not put any extra money in.  Rather, the mortgage had been reduced because of COVID.  He always pays $359 a week.  He has a 30-year mortgage with 13 years to go.  His Westpac card is for the Employer K scheme and will be destroyed when that is finished.

13. He was cross-examined about his expenditures in his financial statement.  It was put that the $300 per week for food was excessive, but he said this worked out to about $40 per day.  He has work lunches and a dog and a cat to feed.  His house is run down.  He works six days on, five days off.  (His shift configuration was a little difficult to follow and I may have not accurately recorded it.) It was put he had an electricity bill big enough for five people, but he said he liked to keep warm.  It is a very cold house.

14. Following cross-examination, there was no re-examination.

15. Final submissions by counsel for the mother emphasised X’s IQ of 51.  The mother seeks adult child support which ceased in December 2019.  She referred to an application for costs, but I pointed out that this should await the final outcome.  Counsel also sought the matter be backdated to February when a letter of demand was sent or, alternatively, to March 2020 when the proceedings were issued.

16. In conclusion, Mr Milbrand had but little to say.  He seeks an outcome that is fair.

The Legislative Scheme

1. The application is, of course, brought pursuant to section 66L of the Family Law Act 1995 (Cth) which, relevantly, provides that:

   (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:

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

2. A number of matters are required to be taken into consideration pursuant to section 66K and, without traversing them seriatim, I do of course bear those in mind. The objects in section 66B and the principles in sections 66C are plainly relevant. Pursuant to 66K(1)(b), I am required to have regard to the income, earning capacity, property and financial resources of the parties and, pursuant to subsection (c), the commitments of the parties that are necessary to enable them to support themselves and the child and, (d), the costs of the resident parent. Once again, without setting them out seriatim, I have regard to the matters in section 66K(2), (3), (4) and (5). In respect of the last named, of course, no one is seeking lump sum payment or a transfer of property.

3. I further note that the Court has power pursuant to section 66P(1)(g) to make a permanent order or, relevantly, an order for a fixed period, or an order until a child attains a specified age.

Consideration

1. There is no question in this case that the requirements of section 66L are met. Although the father appeared to say in a rather generalised way that, if X had remained in Tasmania, things would be altogether different and better, the unchallenged medical evidence could not be clearer. Additionally, the affidavit evidence of the mother is compelling and not the subject of challenge. X has had a tragic medical history and it has impacted upon her in the severest way.

2. I have no difficulty in finding that she will never be able to work.  It has been asserted that X has worked at Hungry Jack’s, but I note that the medical evidence is that X’s capacity to work in any kind of continuing way is likely to be very severely impacted.  Repetitive tasks become difficult for her after a short period of time and, with an IQ of 51, Dr E’s view that she will not be able to live independently must surely be accepted as correct.  The child unquestionably has physical disabilities and the parents have the responsibility to address them.

3. The real question, of course, in this case is whether or not the father is in a position to contribute.  I have regard to the fact that he owns his own home and that he has paid the first 17 years of his 30-year mortgage.  He appears on track to complete it without undue difficulty.  The mother owns no property.  If she did indeed obtain $60,000 as part of a marriage property settlement, it is plainly all gone now.  The mother’s evidence is that she struggles to pay her bills and has indeed had to pawn property from time to time to do so.  It is a stark and difficult circumstance.  It is small wonder that she suffers from depression, given the general pressures upon her life.  Her dedication to X speaks in the highest terms of her view of the proper discharge of her parental responsibilities.

4. The father’s criticisms that the mother unilaterally decamped to Melbourne on what I was asked, I think, to infer was an amorous frolic of her own are plainly irrelevant.  The medical evidence is clear.  X had to remain in Victoria.  If it were the case that the mother had an affair, she was perfectly entitled to do so.  It is simply not a relevant consideration.

5. The real question is how much it is fair and reasonable in all these circumstances to ask the father to pay.

6. It should be noted that the mother and X’s financial circumstances are, on their unchallenged material, extremely strained.  It is not necessary to say more than that X’s income of $185 a week does not begin to pay the $525 per week expenses that the mother has deposed to at paragraph of her trial affidavit.  There is some artificiality in those expenses.  X does not really cost half of the rent.  The mother would have to pay rent in any event.  Nonetheless, it is quite clear that X, and indeed the mother who looks after her, have compelling and pressing financial need.

7. The father’s financial statement shows income of $1612 a week and expenditure of exactly the same amount.  I note and am prepared to accept his evidence that his previously much higher salary is indeed likely to reduce to something of the order of $75,000 a year from now on and at least until the next two years.  What he said was said convincingly.  There have been significant job losses at his employer and the company has changed hands at least once.  His future is not as certain as it was.  His shift roster has changed significantly and his allowances are being removed.  Nonetheless, he has been able to salary sacrifice into superannuation at approximately $100 per week.  His estimate of $67 per week in his financial statement must give way to the tax returns with which he was challenged. 

8. He had much to say about the alleged dilapidated state of the property in which he lives, but he has been living there for 17 years and one might have expected that any particularly significant problems would have been addressed by now.  Looking at his weekly expenses, his estimate of $300 per week for food is plainly excessive and the additional estimate $50 per week for household supplies likewise strikes me as being extraordinarily high for one person. 

9. Nevertheless, if he has an income of $75,000 per year, he will pay tax of just under $17,500 (see ATO tax calculator) with, therefore, a nett income around about $57,500 per annum.  The income concerned is approximately average weekly earnings.  He is not a multi-millionaire.  The notion that he should be required to pay, in effect, in excess of 30 per cent of his disposable income forever does not strike me as being just and equitable.

10. In my view, the appropriate outcome is that he should pay $200 per week in child maintenance.  I do not propose indexing by the consumer price indexing simply because, at the moment, we are in something akin to a zero-inflation circumstance and there is no certainty of any wage increases on the father’s part.  What I propose to do is to fix a period for payment of five years in the first instance.

11. An order that Mr Milbrand pay child support for the whole of the child’s life is, absent some unusual tragedy, effectively an order that he pay for the whole of the rest of his life.  His retirement circumstances remain unclear.  If he is still in employment at 65 (or 67 more likely by that stage) he will have paid off his mortgage and a significant expense will have disappeared.  However, it is far too early to say what his superannuation will be.

12. Nonetheless, in circumstances where the father’s weekly expenditure seems to me to have slack amounting to $200 per week, leaving aside his salary sacrificing into superannuation, I think a figure of $200 a week is indeed just and equitable. 

13. While X’s future seems to me to be very sadly all too clear, an order that the father pay indefinitely is not, in my view, appropriate.  I think a five year period will give the mother some measure of reasonable certainty but will enable both parties to revisit the matter when X’s future perhaps may be slightly more clearly defined than it is at the present time.

14. Accordingly, I will order that the father pay $200 per week in child support for the next five years.

15. It should be noted that I am not ordering retrospective payment.  The father does not have any sums in the bank with which to meet such an order.  He was entitled to pursue his defence of the matter to judgment.  I do not think retrospective payment is appropriate

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 25 September 2020