Recently Howard J of the Brisbane Registry of the Federal Circuit Court of Australia considered the plight of X, born 1992, who have significant disabilities, such that he required 24 hour care. This young adult was clearly unable to function on his own or without this level of support. He suffers from cerebral palsy spastic quadriplegia, cortical vision impairment, coeliac disease, a heart murmur and gross oesophageal reflux.

Background

X was the youngest of 3 children from the marriage of his parents. That marriage had ended in 1995. Since that time, the father had re-partnered and had 2 more children (both under 18 at the time of the trial in July 2013). X had no means of support and no income. The father admitted that the father had the income and earning capacity to provide for X and also admitted that expenses of $747.48 were incurred for X each week. The father’s income was estimated at $10-15,000 per week gross. Accounting evidence was provided by two accountants. The father’s proposal was that he pay $4,000 of X’s monthly expenses, or about 90%.

As Howard J observed, these parties had had a “long and unhappy child support history”. Clearly, there had been problems over time and there had been a significant history of litigation. There was also the sideline issue of whether the Mother had stopped contact between the father and children or whether the father had not pursued spending time with the children. Howard J preferred the mother’s evidence in this regard but also noted that this was not focused on during cross-examination.

In any event, on reviewing the mother’s claim for support, His Honour noted that X required 24 hour care and 120 hours of care was supplied in each week (there’s 168 hours in a week).  The mother had set out a detailed account of an average day in the household. The mother’s evidence was accepted.

Outline of case

Howard J considered sections 66B, 66C, 66H, 66J, 66K and 66L of the Family Law Act. At paragraphs 20 and 21 of the judgment he said:

  1. 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:-
    1. the Court is to ensure that children receive a “proper” level of financial support from their parents (s.66B(1));
    2. the Court is to consider the proper needs of the child; and
    3. the Court is to consider the income, earning capacity and resources etcetera of the child (s.66J(1)(c)).
  2. Section 66J(2) sets out the matters that the Court must have regard to in determining the “proper needs of the child”.

The guiding principle was set down in Marriage of Cosgrove (No.2) (1996) where Warnick J said “the word “necessary” does not mean “absolutely essential” but involves a consideration of “reasonableness”.

Taking into account these aspects, Howard J went on to find that it was reasonable that the father pay the following:

  • the weekly expenses of X in the amount of $747.58 per week or $38,574.16 per year;
  • the cost of a carer in the amount of $35,674.08 per year;
  • the cost of a replacement motor vehicle, and discharge of the loan for the existing vehicle – the replacement vehicle was $70,000, the trade-in for the current vehicle was $25,000;
  • the cost of a replacement bed and communication device for X;
  • $4,000 for the payment missed December 2011-January 2012; and,
  • a retrospective component calculated by reference to the actual costs paid by the mother, to others, for the care of X on weekdays, from 1 February 2012 to the date of judgment less any amount paid by the father during that time and those arrears were to be paid at $2,000 per month until discharged.

Conclusion

So, detailed explanations as to the costs and commitment involved and a demonstrated history of difficulties with support, as well as a situation where the child would never be able to support himself combined to bring this matter before the Court.  The father is in a significantly stronger financial position than the mother who was working part-time. Howard J was satisfied that it would cause undue hardship and injustice to the mother if the above were not allowed. It seems that this litigation commenced in early February 2012. The hearing/submissions concluded on 15 July 2013 and judgment was handed down on 9 October 2013 – a long time to be in abeyance for support where there is a clear need and ability to pay.