CUMPTON & RAINFORD - [2020] FCCA 3441

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUMPTON & RAINFORD

[2020] FCCA 3441

Catchwords:
FAMILY LAW – Application for adult child maintenance – financial agreement – maintenance clause in financial agreement – whether the relevant maintenance clause in the financial agreement is void by reason of the operation of s.90E – “necessary” support – a consideration of a “reasonable” amount to be paid by way of adult child maintenance in respect of a severely disabled adult child.

CONTRACT – terms – severability.

Legislation:

Family Law Act 1975 (Cth), ss.66B, 66C, 66F, 66G, 66H, 66J, 66K, 66L, 90E, 90G, 90K.
Evidence Act 1995 (Cth) s.128.

Cases cited:

Cooper v Fernihough & Anor [2019] FCA 727

Guild & Stasiuk [2019] FamCA 167

Brew v Whitlock (No. 2) [1967] VR 803
N Sneddon et al, Chesire and Fifoot Law of Contract (LexisNexis Butterworths Australia, 10th ed, 2012)
Rieson v SST Consulting Services Pty Ltd [2005] FCAFC 6
McFarlane v Daniell (1938) 38 SR (NSW) 337
Tynan & Tynan (1993) FLC 92–385
Marlowe-Dawson v Dawson (No.2) [2014] FamCA 599
Re AM (Adult Child Maintenance) (2006) 198 FLR 221
L and L (FamCA, McGrath R, BR8286 of 1991, 12 January 1995, Unreported)
Kallin v Kallin [1944] SASR 73
Re: Borthwick (decd); Borthwick v Beauvais [1949] Ch 395
In the Marriage of J M and K A Cosgrove (1995) 20 Fam LR 751

Applicant:

MR CUMPTON

Respondent:

MS RAINFORD

File Number:

BRC 10036 of 2019

Judgment of:

Judge Howard

Hearing date:

31 August 2020

Date of Last Submission:

31 August 2020

Delivered at:

Brisbane

Delivered on:

17 December 2020

REPRESENTATION

The Applicant attending as a self-represented litigant.

The Respondent attending as a self-represented litigant.

ORDERS

That pursuant to s.66L of the Family Law Act 1975 (Cth), the Respondent shall pay to the Applicant by way of periodic maintenance for the adult child Ms A Cumpton born 1998 the sum of $120 per week, commencing 17 December 2020.
That the preceding Order shall operate for a period of seven (7) years from 17 December 2020.
That otherwise, all outstanding applications and responses be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10036 of 2019

MR CUMPTON

Applicant

And

MS RAINFORD

Respondent

REASONS FOR JUDGMENT

The applicant father is Mr Cumpton.
The respondent mother is Ms Rainford.
The parents were married 1996.
The parents have two children. Ms A Cumpton was born 1998.
Mr B Cumpton was born 2000.
The parties separated on 19 May 2016. The applicant father and the respondent mother were divorced on 30 June 2018. In September 2018, the respondent mother married her current husband, Mr Rainford.
Before the Court at the moment there is an application for adult child maintenance brought by the applicant father in respect of the child, Ms A Cumpton. As the father of the child, the father has the necessary standing pursuant to section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CUMPTON & RAINFORD

Details

AGLC: CUMPTON & RAINFORD [2020] FCCA 3441
Case: [2020] FCCA 3441
Decision Date: 17 December 2020

CaseChat Overview and Summary

In the matter of Cumpton & Rainford, the applicant father sought adult child maintenance for his severely disabled adult daughter, Ms A Cumpton, from the respondent mother. The dispute centred on whether a clause within a document described as a "Financial Separation Agreement" precluded the father's application for adult child maintenance.

The primary legal issue before Judge Howard was whether paragraph 5.4 of the financial agreement, which purported to settle all claims for maintenance, was void by operation of section 90E of the Family Law Act 1975 (Cth). The father contended that this clause was void because it failed to specify the child for whom maintenance was provided or the amount of maintenance payable, as required by section 90E. The mother argued that this clause, by its terms, barred the father's application.

The court considered the wording of paragraph 5.4, which broadly referred to settling claims for "any maintenance". It contrasted this with paragraph 4.1, which specifically addressed spousal maintenance and confirmed that the agreement did not make provision for it. The court accepted the father's argument that paragraph 5.4, in its general reference to "maintenance", constituted a provision relating to the maintenance of a child. As this provision did not specify the child's name or the amount of maintenance, it was therefore void pursuant to section 90E of the Act. The court found that the error in the agreement's preamble, referencing section 90 instead of the relevant section for financial agreements, did not vitiate the entire agreement, particularly in light of section 90K.

The court ordered that the respondent mother pay periodic maintenance of $120 per week for Ms A Cumpton, commencing on 17 December 2020, for a period of seven years. All other outstanding applications and responses were dismissed.

Orders

Orders of the court

That pursuant to s.66L of the Family Law Act 1975 (Cth), the Respondent shall pay to the Applicant by way of periodic maintenance for the adult child Ms A Cumpton born 1998 the sum of $120 per week, commencing 17 December 2020.

That the preceding Order shall operate for a period of seven (7) years from 17 December 2020.

That otherwise, all outstanding applications and responses be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The document which the parties refer to as the “binding financial agreement” is in fact headed, “Financial Separation Agreement”. On the second page of the agreement it is stated that, inter alia, – "this agreement is made on… pursuant to section 90 of the Family Law Act 1975 as amended by the Family Law Amendment Act 2000 (Family Law Act 1975)." Section 90 of the Act does not relate to financial agreements. That kind of error is not sufficient to vitiate the agreement (note section 90K). The argument on behalf of the wife is that the applicant's claim for adult child maintenance should be dismissed because of a provision of the financial agreement. The respondent mother points to paragraph 5.4 of the agreement. Paragraph 5.4 states:-“5.4. We both wish to enter this Agreement to settle all claims now and in the future for any maintenance, property, financial resources and other financial matters including any claims that may be made under Part VII or any other relevant provision of the Family Law Act.” The agreement itself also includes another paragraph relating to spousal maintenance. Paragraph 4.1 of the agreement states:-“4.1 We acknowledge and agree that the terms of this Agreement and our individual circumstances enable us to support ourselves without an income tested pension, benefit or allowance. We both individually confirm that this is not an Agreement to which the provisions of Section 90F of the Family Law Act 1975 are to apply. We acknowledge and agree:(a) This Agreement makes no provision for the payment of Spousal Maintenance to either Partner; ·(b) No further funds or property will be paid or made available by or to either Partner; and(c) Neither Partner will, at any time in the future, make any application for the payment of Spousal Maintenance.” Paragraph 4.1 relates directly and only to spousal maintenance. In response to the mother’s submission that paragraph 5.4 of the financial agreement precludes the father from bringing the application for adult child maintenance – the father replies, to the effect, that section 90E of the Act is applicable. Section 90E of the Act states:-“Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or childrenA provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:(a) the party, or the child or children, for whose maintenance provision is made; and(b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.” The father’s argument is that paragraph 5.4 of the binding financial agreement – where it refers to "maintenance" is "a provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children". Hence, the father argues, that the provision (paragraph 5.4) is void – at least so far as the inclusion of the word "maintenance" is concerned – because the provision does not specify the name of the child (in this case Ms A Cumpton) and nor does it specify the name of any other person and, further, the provision does not specify the amount of maintenance payable either to Ms A Cumpton or to any other person.