Scranton & Scranton

[2013] FCCA 1560

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCRANTON & SCRANTON [2013] FCCA 1560

Catchwords:
FAMILY LAW – Adult child maintenance.

Legislation:

Family Law Act 1975, ss.66B, 66C, 66H, 66J, 66K, 66L

In the Marriage of Cosgrove (1995) Fam LR 751
In the Marriage of Cosgrove (No.2) (1996) Fam LR 761

Applicant: MS SCRANTON

Respondent: MR SCRANTON

File Number: BRC 11837 of 2010

Judgment of: Judge Howard

Hearing date: 15 July 2013

Date of Last Submission: 15 July 2013

Delivered at: Brisbane

Delivered on: 9 October 2013

REPRESENTATION

Counsel for the Applicant: Ms Carew

Solicitors for the Applicant: Carne Reidy Herd Lawyers

Counsel for the Respondent: Ms Spence

Solicitors for the Respondent: Astills Lawyers

ORDERS

1. That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 16 October 2013.

2. That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 23 October 2013.

3. That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11837 of 2010

MS SCRANTON

Applicant

And

MR SCRANTON

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant and the Respondent are the mother and father of X. X was born on (omitted) 1992. X suffers from cerebral palsy spastic quadriplegia, cortical vision impairment, coeliac disease, a heart murmur and gross oesophageal reflux. X’s mother has sought an order from the Court for adult child maintenance pursuant to section 66L of the Family Law Act 1975.

2. The parents were married in 1988 and separated in 1995.  

3. There are three children of the marriage, Y (24), Z (21) and X (20).

4. The parties have been able to agree on many of the facts of the case.  X suffers from a permanent physical disability; he is not in receipt of any income; X does not have an earning capacity and he does not have any financial resources from which to derive an income. 

5. Furthermore, the Respondent father admits that he has the income, earning capacity, property and financial resources to meet the child’s proper needs.

6. Furthermore, the Respondent father also admits the following weekly expenses which must be incurred for X:

   (1)repayments of motor vehicle loan with (omitted) Bank of $176.73;

   (2)motor vehicle registration of $15.00;

   (3)motor vehicle insurance of $14.00;

   (4)living expenses of:

   1)food of $134.62 (including specialised coeliac products);

   2)household supplies of $5.00;

   3)electricity of $10.00;

   4)motor vehicle – petrol of $35.00;

   5)motor vehicle – maintenance of $20.00;

   6)clothing and shoes of $20.00;

   7)children’s activities of $20.00;

   8)entertainment and hobbies of $25.00;

   9)holidays of $40.00;

   10)gardening of $1.00;

   11)cleaning of $5.00;

   12)repairs to furniture and appliances of $5.00;

   13)gifts of $2.00;

   14)hairdressing and toiletries of $5.00;

   15)water and sewerage of $8.00;

   (living expenses subtotal of $335.62)

   (5)private health insurance of $33.23;

   (6)medical services, after expenses which can be bulk billed, of $33.90;

   (7)medical equipment and supplies of $85.17;

   (8)special transportation to and from (omitted) of $43.00;

   (9)costs for activities and incidental to attendance at (omitted) of $10.00;

   (10)workcover insurance for carers of $1.00.

7. It is admitted between the parties that the total weekly expenses for X is $747.58.  On a yearly basis the total of those expenses is therefore $38,874.16.

8. The issues outstanding are reasonably narrow.  Those issues are:

   a)What are X’s proper needs? And

   b)How should X’s needs be apportioned between the parties?

9. The Respondent is willing to concede that he should pay the sum of $4,000.00 per month by way of adult child maintenance for X.  The submission by the father seems to be that this would represent 90% of X’s financial needs. 

10. The mother seeks an order that the father pay adult child maintenance for X in the sum of $6,013.45 per month – to take effect from 1 February 2012.  The sums already paid by the father are to be deducted – and any arrears to be paid shall be paid at the rate of $3,000.00 per month.

11. The father has remarried and has two young children aged 11 and 9.

12. For more than 20 years the father has operated an (omitted) business.  Two accountants provided evidence (Mr B and Mr Y).  The accountants estimate the father’s income in the amount of approximately $10,000 - $15,000 per week.  On any view of that evidence – the father has the capacity to meet X’s needs – and, as noted, the father has sensibly admitted that fact.

Part VII – Division 7 – Child Maintenance Orders

1. The objects of Division 7 of Part VII of the Act are stated in s.66B as follows:-

   “SECTION 66B – OBJECTS

   66B(1)  The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

   66B(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.”

2. It is, of course, the parents who have the primary duty to maintain a child. In this regard I note s.66C which states:-

   “SECTION 66C PRINCIPLES – PARENTS HAVE PRIMARY DUTY TO MAINTAIN

   66C(1)   The parents of a child have, subject to this Division, the primary duty to maintain the child.

   66C(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.

3. The approach to be taken by the Court in child maintenance proceedings is set out in s.66H as follows:-

   “SECTION 66H – APPROACH TO BE TAKEN IN PROCEEDINGS FOR CHILD MAINTENANCE ORDER

   66H   In proceedings for the making of a child maintenance order in relation to a child, the court must:

   (a) consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J); and

   (b) determine the financial contribution, or respective financial contributions towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 66K).”

4. There are certain matters which the Court must take into account in considering what financial support is necessary for the maintenance of a child. Those matters are set forth in s.66J as follows:-

   “SECTION 66J – MATTERS TO BE TAKEN INTO ACCOUNT IN CONSIDERING FINANCIAL SUPPORT NECESSARY FOR MAINTENANCE OF CHILD

   66J(1)  In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

   (a) the matters mentioned in section 66B; and

   (b) the proper needs of the child (this is expanded on in subsection (2)); and

   (c) the income, earning capacity, property and financial resources of the child (this is expanded in subsection (3)).

   66J(2)  In taking into account the proper needs of the child the court:

   (a) must have regard to:

   (i) the age of the child; and

   (ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

   (iii) any special needs of the child; and

   (b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

   66J(3)  In taking into account the income, earning capacity, property and financial resources of the child, the court must:

   (a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

   (b) disregard:

   (i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

   (ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.

   66J(4)   Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).”

5. As to the contribution to be made by the parties – the matters to be taken into account in that regard are included in s.66K of the Act – as follows:-

   “SECTION 66K – MATTERS TO BE TAKEN INTO ACCOUNT IN DETERMINING CONTRIBUTION THAT SHOULD BE MADE BY PARTY ETC.

   66K(1)   In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

   (a) the matters mentioned in sections 66B, 66C and 66D; and

   (b) the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

   (c) the commitments of the party, or each of those parties, that are necessary to enable the party to support:

   (i) himself or herself; or

   (ii) any other child or another person that the person has a duty to maintain; and

   (d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

   (e) any special circumstances, which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   66K(2)   In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing income.

   66K(3)   In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

   66K(4)   In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:

   (a) any entitlement the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

   (b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

   66K(5)   In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

   (a) by way of lump sum payment; or

   (b) by way of transfer or settlement of property; or

   (c) in any other way.

   66K(6)   Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).”

6. Looking more closely at the legislative pathway – the Court must first consider the “financial support necessary for the maintenance of the child” (s.66H).

7. As noted above – in s.66J(1) there are certain matters which the Court must take into account in considering the financial support which is necessary for the maintenance of a child. Further, the Court can take “no other matters” into account.

8. The matters to be taken into account in considering the financial support which is necessary for the maintenance of a child are therefore as follows:-

   a)the Court is to ensure that children receive a “proper” level of financial support from their parents (s.66B(1));

   b)the Court is to consider the proper needs of the child; and

   c)the Court is to consider the income, earning capacity and resources etcetera of the child (s.66J(1)(c)).

9. Section 66J(2) sets out the matters that the Court must have regard to in determining the “proper needs of the child”.

10. X is 20 years of age and suffers from the disabilities to which I have earlier referred.  His special needs are such that he requires 24 hour care. 

11. Pursuant to s.66J(3) the Court is to disregard any social security entitlement to which X or his carers may be entitled. As noted earlier, the child does not earn or derive any income, etc.

12. A detailed examination of a week in X’s life is appropriate in the circumstances of this case.  The Court has been assisted in this regard by evidence from X’s mother (the Applicant) – Ms Scranton (now known as Ms Scranton).  The Court has also been assisted by evidence of one of X’s carers – Ms E.  

13. On Monday, Tuesday, Wednesday and Thursday – X’s timetable is as follows:-

    a)X’s mother toilets him, bathes him and dresses him between 6:30am and 7:00am.  X is then placed by his mother in his wheelchair by 8:00am. 

    b)Ms E arrives and gives X his breakfast.  Indeed, Ms E states in her affidavit, inter alia:-

    “15. The first thing I do is communicate to X about what breakfast he would like so I can prepare it. We will then communicate as I am making his breakfast. I will also pour X a drink to have with his breakfast.

    16. Once breakfast is made I will feed X as he is unable to feed himself.

    17. After X has eaten breakfast, I prepare his lunch to go with him to (omitted).

    18. After his lunch is made I will put it in X’s travel bag. After putting in X’s lunch I will check that his travel bag contains his hat, medication, nappies and communication book. This is so X has everything he needs while he is at (omitted). If there is not enough of a particular resource I will put more in the bag from where Ms Scranton keeps X’s supplies.

    19. Following packing X’s travel bag I will brush X’s teeth. This involves putting a towel around X’s neck in case anything drops while I am cleaning his teeth. Once we are finished X will spit out the toothpaste on the towel. I give X water to rinse which he spits into a towel. I will then remove the towel.

    20. I then brush X’s hair and wash his face. I also remove any discharge that has formed around X’s eyes.

    21. After that I will put on X’s shoes and socks.

    22. While I am helping X we will communicate about what he is doing at (omitted), or what he and I will do on Friday when we spend the day together.

    23. The driver of the (omitted) taxi service keeps me informed of his arrival time by text message so I can have X ready to be collected. The taxi usually arrives between 9:00am and 9:20am.

    24. At times the taxi is unable to collect X. Sometimes X is suffering from headaches or pain and is unable to travel by taxi. I will then call Ms Scranton to discuss what to do with X.

    25. Sometimes X needs to go to the toilet again while I am getting him ready. This means hoisting X onto his bed to undress him, then using the hoist to put on him on the commode. I then move X over the toilet.

    26. Once X is finished on the toilet I hoist him back on his bed where I redress him. X is then hoisted back into his wheelchair.

    27. To use the hoist X has a chest harness which needs to be strapped around him. It also has a four point pelvic strap to hold him in position. These all need to be securely fastened to ensure X is safe and is supported properly.

    28. When the taxi service arrives I wheel X out on the driveway where the driver and I load X into the taxi. I supply the driver with X’s travel bag and let the driver know if there are any issues with X.

    29. After the taxi takes X, I lock up the house and leave, either to come back in the afternoon and the next morning, depending on what day of the week it is.”

    c)Ms E is therefore in attendance at the family’s residence from approximately 8:00am until 9:30am – Monday to Thursday inclusive.

    d)On Monday and Wednesday afternoons – Ms E arrives at the family home at 3:00pm and unlocks the house ready for X’s arrival.  In her affidavit, Ms E provides the following details in relation to the afternoon regime for X:-

    “31. While I wait for X, I prepare X’s room for his shower. This involves having a towel ready for the shower, getting out X’s clothes for afterwards and a nappy ready to put on X.

    32. I will also make X some afternoon tea.

    33. X will arrive in a maxi taxi. I meet the taxi in the driveway and wait until X is unloaded. I then wheel X inside the house carrying his travel bag with me.

    34. When X arrives we communicate about his day and whether he is okay or needs me to do anything. Sometimes X is upset or unwell so I call Ms Scranton to let her know.

    35. I will feed X afternoon tea once we get inside. We will also communicate about dinner so X has some input into the food he is to eat. I also make sure X has a drink especially in hot weather.

    36. I will take X’s shoes off and make sure he is comfortable in his wheelchair. Sometimes during travel X can move around in the chair so I make sure he is comfortable once his is back at home, and if necessary I will reposition X using the hoist.

    37. After X has eaten his afternoon tea I take him for his shower. Showering X takes about 50 minutes.

    38. To shower X he has to be hoisted from the wheelchair to the bed, and placed on the commode chair so he can go to the bathroom before his shower. After X goes to the toilet I move him to the shower.

    39. X’s shower routine involves washing his hair and soaping his body to clean him and then rinsing the soap off afterwards.

    40. After the shower I will dry X and wheel the shower chair back to his bed where I hoist him onto the bed so I can put on deodorant for him and dress him. After I dress X, I will hoist him back into his wheelchair and brush his hair.

    41. After X’s shower I will wheel him back to the kitchen so we can communicate while I prepare dinner.

    42. Once dinner is prepared at about 5:30pm I feed X. During dinner Ms Scranton will arrive home and then take over. I then say goodbye to X while Ms Scranton finishes feeding and leave.”

    e)Therefore, Ms E is at the family home for approximately 2½ – 3 hours each Monday and Wednesday afternoon.  Whereas Ms E’s hourly carer rate was $26.67 (as noted in Exhibit 2) – the evidence of the mother given on 15 July 2013 – notes that the hourly rate has increased to $30.50.  I accept this evidence.  It has not been contested.

    f)The mother therefore pays Ms E to provide four hours of care per week (at the new rate of $30.50) – and this relates to the morning care provided by Ms E.  Further, (omitted) pays Ms E directly for six hours of care per week representing the Monday and Wednesday afternoons.

    g)In addition, the mother pays her own parents $75.00 per week.  The maternal grandparents look after X each Tuesday and Thursday afternoon from 3:00pm to 6:00pm – a total of six hours per week.  The amount paid in the sum of $75.00 is well below the award rate. 

1. It seems that the Applicant mother pays Ms E privately for four hours per week of care.  This seems to be represented by the Monday to Thursday morning shifts.  I note that paragraph 69 of the mother’s affidavit filed 30 October 2012 indicates that Ms E is paid from 8:00am to 9:00am Monday to Thursday – privately by the mother.  The evidence of Ms E (as seen above) shows that in fact she does 1.5 hours on each of those mornings. 

2. In any event the claim by the mother has been particularised in Exhibit 2 at – essentially – one hour each morning Monday to Thursday in respect of the care provided for X by Ms E.

3. The afternoon care provided by Ms E (as noted) is funded directly by the entity called “(omitted)”.

4. There is a different care regime for X on a Friday.  Ms E has provided detailed evidence as to what occurs on a Friday. That evidence is as follows:-

   “43. I arrive at about 8:00am. X does not go to (omitted) on Friday so I look after him all day.

   44. On Fridays the first thing I do is take X to the toilet if Ms Scranton has not already. This involves hoisting him onto the bed, undressing him, hoisting him back onto the commode chair and then moving it to over the toilet.

   45. After X is finished I will hoist him back onto the bed and redress him. I then hoist X into his wheelchair.

   46. I will then wheel X into the kitchen where we communicate about breakfast and what he would like. I will then prepare that for him and feed X. I will also give X a drink.

   47. Following breakfast I will brush X’s teeth. This involves putting a towel around X’s neck in case anything drops while I am clearing his teeth. Once we are finished X will spit out the toothpaste. I give X water to rinse which he spits into the towel. I will then remove the towel.

   48. I then brush X’s hair and wash his face. I also remove any discharge that has formed around X’s eyes.

   49. During school terms X volunteers at (omitted) High School – Special Education Unit. X’s role was to set up a fish tank for the children and then manage the tank. To manage the tank X needs to feed the fish, check the water levels and quality and then make the necessary adjustments to the water in the tank.

   50. To assist X in feeding the fish I put the food block in a fish net which X holds with my assistance. I then wheel X closer to the tank and help him move the net over the tank. I will then turn the net inside out so the block drops from the net into the tank.

   51. X also helps by collecting water for tank by holding the top of the tap. The water is gathered in a bucket which I carry and tip into the fish tank.

   52. This volunteer work normally has X and I at the school for a few hours each week.

   53. To get X to the school I use the special van for him. This means loading X into the van and securing the wheelchair using the security straps which have been installed in the van. Once X is securely fastened in I will drive him to the school which is about 25 minutes away.

   54. On Fridays X and I will eat lunch out together. Sometimes this is at a park, a café or I take him to my house for lunch. Sometimes X’s friends will join us for lunch. Ms Scranton organises them to come along and tells me about what is organised.

   55. Some Fridays Ms Scranton has organised for X to go and see his old school friends so I will take him to either the (omitted) Hotel, a fish and chip shop for lunch, or (omitted) Shopping Centre.

   56. Occasionally I will take X for haircuts as well.

   57. As X requires gluten free cooking I have to be careful to not use any products in X’s food that contains gluten. I will also communicate to X about his meals so he is involved in what he is eating.

   58. At times Ms Scranton or X have asked me to shave X. I have done this a few times.

   59. In the afternoon I shower X. This takes about 50 minutes.

   60. To shower X he has to be hoisted from the wheelchair to the bed, undressed, and placed on the commode chair so he can go to the bathroom before his shower. After X goes to the toilet I move him to the shower.

   61. X’s shower routine involves washing his hair and soaping his body to clean him, and rinsing the soap from his body.

   62. After the shower I will dry X and wheel the shower chair back to his bed where I hoist him onto the bed so I can put on deodorant for him and dress him. After I dress X I will hoist him back into his wheelchair and brush his hair.

   63. After X’s shower I will wheel him back to the kitchen so we can communicate while I prepare dinner.”

5. Ms E therefore provides eight hours of care to X each Friday. 

6. With the amendment to Exhibit 2 – to reflect the increase in the hourly rate to $30.50 – the total of the weekday carer costs paid privately by the mother to Ms E is (or will be) $366.00.  When the other components are added to that amount – the weekly carer costs paid privately by the mother total $453.00.  The annual total is therefore $23,556.00. 

7. I note the following evidence from the mother contained in her affidavit filed 30 October 2012:-

   “68. I take care of X on:

   (a) Monday from midnight to 8:00am and from 6:00pm until midnight for 14 hours;

   (b) Tuesday from midnight to 8:00am and from 6:00pm until midnight for 14 hours;

   (c) Wednesday from midnight to 8:00am and from 6:00pm until midnight for 14 hours;

   (d) Thursday from midnight to 8:00am and from 6:00pm until midnight for 14 hours;

   (e) Friday from midnight to 8:00am and from 4:00pm until midnight for 16 hours; and

   (f) All day Saturday and Sunday for 48 hours.”

   I accept this evidence of the mother.

8. I also note the evidence of the mother contained in paragraph 71 of her affidavit filed 30 October 2012 where she has stated:-

   “71. Before June 2012 Ms E would also take care of X from 2:00pm until 6:00pm Saturdays for 4 hours. I stopped this shift because I could not afford it. Ms E would charge $40.01 per hour which is her weekend rate.”

   I accept this evidence of the mother.

9. In the Marriage of Cosgrove (No.2) (1996) Fam LR 761 at 764 – the Full Court of the Family Court stated that the guiding principle in these cases is, “what in all the circumstances is reasonable”? Those comments by the Full Court support the decision of Warnick J at first instance (reported at (1995) Fam LR 751 at 756). His Honour stated, inter alia “the word “necessary” does not mean “absolutely essential” but involves a consideration of “reasonableness”. I note the use of the word “necessary” in s.66H(a) of the Act.

10. Noting the amount of care which the mother provides to X each week – I have come to the conclusion that a fair minded observer would conclude that it is reasonable for X to receive four hours of paid care each Saturday.  This will give to the mother a four hour window to attend to other matters – some of which will relate to X and some will not.

11. It follows – from what was said by the Family Court in Cosgrove (supra) – that such support is both “necessary” and “proper” as those terms are used in the Act. 

12. I have come to the same conclusion in respect of the claim by the mother in respect of four weekends per year. 

13. The amount of care outlined and claimed by the mother in Exhibit 2 (as amended as a result of the increase in the hourly rate) is, in all the circumstances, both “reasonable” and “necessary”.  Further, in order for X to have his “proper needs” met – the amount of care outlined in Exhibit 2 is appropriate, reasonable and necessary.  A fair minded observer would, in my view, reach this conclusion. 

14. In coming to these conclusions I have had regard to s.66J(2). I have noted X’s age and his special needs. I have also noted the manner in which X is being cared for at the moment.

Section 66K

1. The entire text of s.66K has been included earlier herein in these reasons.

2. It is apparent from the evidence that the father has access to gross income per week of between approximately $10,000.00 and $15,000.00.  In this regard I note the evidence of Mr B and Mr Y. 

3. The mother’s working career has necessarily been curtailed by reason of the care which she provides for X.  The mother works part time and receives a gross salary per week of approximately $1,722.00.  There is also a rental payment from an investment property.

4. It is apparent that the father has access to significantly greater financial resources than the mother. 

5. After the parent’s marriage broke down in 1995 – there was, sadly, an end of the relationship between the father and the three children – including X.  This tragic situation arose – according to the father – because the mother shut him out of the children’s lives.  On the other hand, the mother maintains that it was the father who voluntarily cut all of his ties with the three children.  I do not consider it necessary – in the circumstances of this case – to attempt to make particular findings concerning those issues.  Because of X’s disabilities – it cannot be said that he in any way was responsible for the severing of the “filial” relationship.  The relevance of the “filial” relationship does arise in some adult child maintenance cases – but not in this case.  Further, I have come to the conclusion that – because of the way the trial proceeded – I am not really in a position to make findings about those issues.  Neither parent was cross-examined in relation to those issues.  Indeed the father was not cross-examined at all.

6. If my view on that issue is not correct – and if a finding were required to be made – I would probably tend toward the mother’s version on the basis that – if the father had in fact wanted to spend time with the children then I would have thought he would have filed a parenting application in the appropriate Court.  I note from the mother’s affidavit filed 30 October 2012 – that these parties are no strangers to the litigious process.  That affidavit details chapter and verse the long and unhappy child support history between these parties.

7. By s.66K(1) the Court must consider the matters mentioned in s.66B, s.66C and s.66D. Section 66D is not relevant.

8. Insofar as s.66B is concerned – I note one of the objects of the division is that the Court should ensure that “parents share equitably in the support of their children” (s.66B(2)(b)).  I agree with the submission made by Ms Carew, counsel on behalf of the mother – that the reference to “support” includes both financial support and non-financial support.  In that regard I note the significant amount of care provided by the mother each week to the child, X.  It has been calculated in the amount of 120 hours.  I have accepted that evidence.

9. If I am incorrect in my view of s.66B(2)(b) – I nonetheless take into account the amount of care provided by the mother to the child by reference to s.66K(1)(e) – which talks about “any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person”. 

10. As to s.66C I note that it is the duty of the parents to maintain the child.

11. I note the financial and other commitments of both the mother and the father in this case.  I have also noted the income, earning capacity, etc. of the parents.  I have had regard to the financial statements and the other evidence.  As noted earlier, I have concluded that the father is in a significantly stronger financial position than the mother.  There is no contest in relation to that issue.

12. I also note (by virtue of s.66K(1)(d) and s.66K(3)) – the direct and indirect costs incurred by the mother with whom X has been living – in providing care for him.

13. I note also the income and earning capacity foregone by the mother in providing that care.  I have made reference to that already.  I infer from the evidence that – if the mother was not required to provide so much care for X – she would be able to work on a full time basis rather than a part time basis.

14. I have come to the conclusion that the support provided to X by his mother has – indeed – been extraordinary.  Noting the father’s financial capacity – I have also come to the conclusion that it is equitable in the particular circumstances of this case for the father to meet all of the financial costs associated with X’s care – as claimed by the mother.  That includes both the weekly expenses totalling $747.58 per week or $38,874.16 per year and the carer costs totalling $35,674.08.  This last figure is the amount of the recalculation of Exhibit 2.

15. In relation to the motor vehicle – I note that the mother purchased a motor vehicle to transport X in 2003 and in 2008.  The motor vehicles have to be specially adapted to transport X.  The current motor vehicle has approximately 120,000 kilometres on the odometer.  There is no doubt that X needs a special transportation vehicle.  I accept the mother’s evidence that she drives X on many outings each weekend.  I infer from the mother’s evidence and from the age of the vehicle and the distance travelled that there is likely to be a need for a new vehicle in the foreseeable future. 

16. I note the evidence of the mother from her affidavit filed 30 October 2012 in relation to the motor vehicle.  The mother has stated:-

    “108. To enable X to be transported I have registered in my name a van which is equipped to travel with X’s car.

    109. I purchased this van second hand a number of years ago for $65,000.00. The vehicle is 12 years old now and is used regularly causing it to deteriorate from wear and tear.

    110. I have investigated the resale cost of the current van and estimate it to be about $25,000.00. There is a limited market for vans equipped for wheelchair people so selling the van may be difficult.

    111. I have researched the costs of a replacement van and estimated it will cost $70,000.00 to buy a new vehicle. The cost is higher than a normal motor vehicle because of the need to have the vehicle modified and equipped with the mechanisms and straps to safely transport X in his wheelchair.”

    I accept this evidence of the mother.

17. I have come to the conclusion that the mother’s proposal in relation to the vehicle is both reasonable and necessary.  Such vehicle is needed to meet X’s “proper needs”.  The father has the financial capacity to provide the vehicle.  The mother is, by this application, seeking one vehicle to be paid for by the father – as well as the earlier (omitted) debt to be paid out.  I consider such an approach is appropriate in the circumstances.  I do not consider it a good idea for that vehicle to be registered in the name of the father.  Noting the lack of communication between these parents and the very long history of child support disputation – not to mention these proceedings – I have come to the conclusion that the father’s proposal is not appropriate.  Nor is it sufficient merely to pay maintenance and ongoing expenses in respect of the current vehicle.  With 120,000 kilometres currently on the clock – the current vehicle will need replacing.  The arguments put forward on behalf of the father in this regard are without merit.  For the reasons outlined above concerning the ongoing yearly care costs and other expenses for X – I have come to the same conclusion in relation to the motor vehicle.  That is there is a proper need for such a vehicle (in respect to X’s maintenance) and it is the father who is in the financial position to pay for such vehicle.  Further, it is appropriate in the circumstances of this case (for the reasons outlined earlier) that the father should meet the costs of the motor vehicle sought by the mother.  It is the father (and not the mother) who has available to him the significantly greater income and financial resources.

18. For the reasons included above – I have come to the same conclusion in respect of the costs of a replacement bed for X and in respect of the communication device referred to in the evidence.

Retrospective Order

1. I do consider it appropriate that the father pay to the mother the total sum of $4,000.00 for the period December 2011 to January 2012.  In those months the father made no payment to the mother.  That approach by the father was not reasonable.  It is appropriate in the circumstances for that small lump sum order to be made.

2. As to the ongoing monthly costs – on my calculation the father will have to pay to the mother – on an ongoing monthly basis to commence forthwith the sum of $6,212.35.  

3. The mother paid weekend carer costs for a period of time – but not the whole time from the time of the filing of the application (1 February 2012).  There has not been the weekend respite care (four weekends per year) paid for by the mother during the applicable time.

4. The father has paid (apart from the months referred to) the $2,000.00 per month in accordance with the parent’s consent agreement.  The amount which the father offered to pay per month – $4,000.00 is not insignificant.  A close examination of the evidence reveals that it would not meet the requirements of the legislation (for the reasons stated).  In order for X to be properly maintained – the amount per month is $6,212.35. 

5. If one looks solely at the weekday carer costs referred to in Exhibit 2 (using the old hourly rate) the amount paid by the mother is $21,166.08. 

6. I do consider that there should be a retrospective component to the order.  Otherwise the mother will be at a significant financial disadvantage.  The calculation of the retrospective amount should not take into account weekend carer costs and nor should it take into account weekend respite carer costs.  It should only be the actual costs paid by the mother to Ms E, the maternal grandparents and the (omitted) co-payment for the period from 1 February 2012 to the date of Judgment.  From that sum there should be deducted the sums already paid by the father.  The arrears should then be paid by the father at the rate of $2,000.00 per month until paid in full. 

7. I note once again the provisions of s.66K(1)(e). Noting the special circumstances of this case – if the Court was not to make a retrospective Order I have come to the conclusion that this would result in an injustice and undue hardship to the mother.

8. In relation to the purchase of a new car for X’s transportation and in relation to the retrospective component of the order referred to above – I have come to the conclusion that (for the reasons already stated herein) – such orders are “reasonable” – within the contemplation of that term as used by Warnick J in the Marriage of Cosgrove (supra).

9. I am broadly in agreement with the outline of the orders sought on behalf of the mother.  Those orders will have to be amended to reflect these reasons for judgment. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  8 October 2013