CUMPTON & RAINFORD
[2020] FCCA 3441
•17 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUMPTON & RAINFORD | [2020] FCCA 3441 |
| Catchwords: CONTRACT – terms – severability. |
| Legislation: Family Law Act 1975 (Cth), ss.66B, 66C, 66F, 66G, 66H, 66J, 66K, 66L, 90E, 90G, 90K. |
| Cases cited: Cooper v Fernihough & Anor [2019] FCA 727 Guild & Stasiuk [2019] FamCA 167 Brew v Whitlock (No. 2) [1967] VR 803 |
| 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 66F(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) to make the application for child maintenance on behalf Ms A Cumpton.
Pursuant to section 66L of the Act a Court must not make a child maintenance order in relation to a child who is over the age of 18 years – unless the Court is satisfied that the provision of maintenance is necessary:-
“…(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.”
Ms A Cumpton was born with significant disabilities. Ms A Cumpton's consulting neurologist (Professor C) based at Hospital D, has prepared a report dated 15 August 2019. It is annexure C to the applicant father’s trial affidavit filed 3 August 2020. In that report, Professor C notes:-
“Re: Ms A Cumpton
Diagnoses:
1. Drug-resistant epilepsy
2. Severe intellectual impairment
Ms A Cumpton is a 21-year-old lady with a history of seizures since infancy, associated with developmental delay in childhood and severe intellectual impairment. No particular underlying aetiology has been identified. She has frequent (daily) epileptic seizures despite management with multiple anticonvulsant medications and implantation of a vagal nerve stimulator, and continuous supervision is required to prevent misadventure or harm resulting from seizures. Ms A Cumpton's intellectual impairment has been classified as severe on the basis of her requirement for daily assistance with self-care activities and safety supervision. There is no expectation that her condition will show any meaningful improvement in the years to come.”
After the parents separated, Ms A Cumpton (and her younger brother Mr B Cumpton) remained living primarily with the father at the former matrimonial home situated at E Street, Suburb F, Queensland.
The children commenced having alternate weekends with the mother. This was pursuant to a parenting plan which was agreed between the parties at the time that a financial agreement was entered into. I will return to that topic shortly. The parenting plan is annexed to a copy of the financial agreement and both, together, comprise exhibit 2.
Currently Ms A Cumpton spends alternate weekends with the mother from Friday afternoon until Monday morning.
I note the evidence of the father concerning Ms A Cumpton's condition. In paragraphs 11 and 12 of his trial affidavit the father states:-
“11. Ms A Cumpton began having seizures from the age of approximately three months and was diagnosed at the age of two with Epilepsy, Autism and Severe intellectual Impairment
12. Ms A Cumpton is completely dependent on a carer for the majority of her day to day needs including showering, personal hygiene, clothing, preparing meals and she requires constant supervision. Based on her prognosis, she has no current or future capacity to earn an income on her own. This is not expected to change.”
I accept this evidence of the father. In his oral testimony the father made it clear that he is the person who is providing this care for Ms A Cumpton. He gave up work – after the separation of the parents – to devote his life to caring for his disabled child. It will be noted that I use the word "child" in these Reasons for Judgment because that is the term used in the Family Law Act – even in relation to a person (such as Ms A Cumpton) who is over the age of 18 years.
It is the father who, each day, does the washing, ironing and cleaning at the family home. Ms A Cumpton needs assistance with toileting. When urinating she can take care of herself but when opening her bowels she needs the assistance of her father. The father also helps her on a monthly basis with her periods.
The mother attends to these aspects of Ms A Cumpton's care every second weekend.
Fortunately, through the National Disability Insurance Scheme (the Commonwealth funded disability insurance scheme for disabled Australians) – Ms A Cumpton has the help of support workers during each weekday afternoon. It does not cover weekends. I note that the Court is to disregard any entitlement of the child or any other person to an income tested pension, allowance or benefit when the Court is considering the financial support necessary for the maintenance of the child and the Court is also to disregard such matters when the Court is determining what contribution (if any) should be made by a party – note section 66J(3)(b)(ii) and section 66K(4)(a). I note the following evidence from the father's trial affidavit concerning Ms A Cumpton's progress from Special School G and the evidence of Ms A Cumpton's needs and daily routine. I accept this evidence from the father:-
“14. Ms A Cumpton completed schooling at Special School G in 2015.
15. Ms A Cumpton now attends an NDIS registered service provider called Organisation H which caters to adults with disabilities. Organisation H focuses on teaching participants to become more independent through life skills i.e., cooking, art, dancing, shopping etc. Ms A Cumpton attends this program on Week days between 9.00am and 2.30pm.
16. Ms A Cumpton spends her spare time at home listening to music and enjoys spending time on her swing.
17. With funding through NDIS, the Applicant has been working recently with local Occupational Therapist (OT), Ms I to set goals for Ms A Cumpton to achieve more domestic independence, through some recommended home modifications, exercise plans and in-home support.
18. As part of these OT goals, Ms A Cumpton has support workers come each weekday afternoon for one hour to assist and encourage her to become more self-sufficient by showering and dressing herself.
19. Ms A Cumpton also enjoys walking her dog with the support worker each afternoon to exercise.
20. Ms A Cumpton' s NDIS package funds her participation in the Organisation H lifestyle program and the weekdays in home support. It does not fund her ongoing day to day personal expenses.”
On 26 August 2019 the father filed an initiating application seeking orders that adult child maintenance be paid by the mother to him in respect of Ms A Cumpton. The matter came before the Court in October 2019 and certain orders were made requiring the delivery of particulars of the claim and disclosure.
The matter came back for the Court on 2 December 2019 and on that occasion the Court made orders requiring the filing and serving of a Statement of Claim (by the applicant father); the filing and serving of a Defence (by the respondent mother), and provision was made for the filing and service of a Reply from the applicant father.
The parties complied with those directions in substance. Being lay litigants the “pleadings” did not conform to the usual rules of pleadings.
In any event, both parties were well aware of the case being run by their opponent.
The Financial Agreement.
I note the father's trial affidavit makes a reference to the financial agreement. The financial agreement came into effect when it was signed by the wife on 4 November 2016. This was prior to the date of divorce (30 June 2018). Section 90C is therefore the applicable section (Financial Agreement during Marriage).
The parties refer to the financial agreement as a "binding financial agreement". Both parties indicated through their evidence (and submissions) that they consider themselves bound by the agreement.
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 children
A 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.
The conclusion I have reached is that the argument put forward on behalf of the father is correct.
The operation of section 90E of the Family Law Act 1975 was considered by Charlesworth J in the Federal Court of Australia in a case entitled Cooper v Fernihough & Anor [2019] FCA 727. In that case the parties to the marriage had entered into a binding financial agreement under Part VIIIA of the Act.
It is worth noting that section 90G of the Act sets out when it is that a financial agreement is "binding". Such an agreement is binding if it satisfies the requirements of section 90G. If the requirements of s.90G are satisfied and the financial agreement is “binding” – the Court cannot apply Part VIII of the Act.
In the decision of Cooper v Fernihough & Anor Charlesworth J refers to a provision in the relevant financial agreement (clause 11) whereby the parties to that agreement (Mr and Mrs Fernihough):-
“Abandoned and relinquished any claims they may have against each other in respect of:-
…
2. In the case of Mrs Fernihough;
(a). All other property in the possession and/or control of Mr Fernihough except as otherwise set out in the agreement (clause 11.1); and
(b). All and any right that she may have to claim spousal maintenance against [Mr Fernihough] either now or in the future (clause 11.2).”
(Emphasis added).
Charlesworth J stated at paragraph 52:-
“52. As the trustee properly acknowledged, clause 11.2 of the Agreement is a provision that “relates to” spousal maintenance. It was by that clause that Mrs Fernihough abandoned and relinquished “all and any right that she may have to claim spousal maintenance against [Mr Fernihough] either now or in the future”. As the trustee correctly submitted, clause 11.2 does not fulfil the requirements of s 90E of the FLA because it does not specify “the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of [Mrs Fernihough]”. Accordingly, clause 11.2 is void.”
(Emphasis added).
Paragraph 5.4 of the financial agreement in the case currently before the Court is also a provision that “relates to” maintenance. Paragraph 5.4 does not meet the requirements of section 90E of the Act. Clause 5.4 does not "specify… the party or the child or the amount provided for, or the value of the portion of the relevant property attributable to the maintenance of the party or the child… as the case may be”.
Accordingly, clause 5.4 – at least in relation to the word "maintenance" in paragraph 5.4 – is void.
The approach taken by Charlesworth J in Cooper v Fernihough & Anor is consistent with the approach taken by the Family Court of Australia in the interpretation of section 90E. In this regard I note the decision of Cronin J in Guild & Stasiuk [2019] FamCA 167 from paragraph 29.
As to whether or not the word “maintenance” can be severed from clause 5.4 of the financial agreement is not a question that this Court needs to determine. Furthermore, as to whether or not clause 5.4 of the agreement (in its entirety) can or should be severed from the financial agreement is, again, not a question that this Court in this particular case is required to answer. In case I am wrong about that – I will give some reasons in relation to the question of severance.
Severability
In Chesire and Fifoot Law of Contract [1] at paragraph (6.17) – the learned authors state, inter alia:-
“6.17. An agreement that contains an uncertain term or combination of terms may be saved by the court simply severing the offending part or parts from the contract."
[1] N Sneddon et al, Chesire and Fifoot Law of Contract (LexisNexis Butterworths Australia, 10th ed, 2012)
In Brew v Whitlock (No. 2) [1967] VR 803 at page 806 the Full Court of the Supreme Court of Victoria stated, in respect of the law relating to severance:-
“In the main the subject has been discussed in relation to the illegality of contractual provisions or their avoidance on the ground of conflict with public policy. But in spite of the submission that the tests of severability are different in such cases from those applicable in cases of uncertain provisions, we have been unable to be satisfied as to why that should be so. The view that the tests are the same in all such cases appears to be adopted in Pollock on Contracts, 13th ed., p. 340, where it is said: “There is no special rule as to agreements alleged to be in restraint of trade, and severability is in every case a matter of construction.” (Emphasis added)
Hence, the test to be applied in cases involving an uncertain term of the contract is the same test to be applied in cases involving a term of a contract which is deemed void by reason of a statutory provision – as is the case with section 90E of the Act in relation to non-compliant clauses relating to maintenance in financial agreements.
The Court in Brew v Whitlock (No.2) continued from page 807:-
“These authorities on severability in cases concerning uncertainty in a part of a contract point to the test as being the intention of the parties as to whether the operation of the contract apart from the impugned part was to be conditional on the efficacy of that part, or whether it was to take effect notwithstanding the failure of that part. That intention is to be ascertained from the construction of the contract as a whole. The process of construction will have regard to such considerations as the independence in form of the impugned part, any interdependence of that part in form or operation with the rest, the effect that severance would have on the operation or meaning of what is left, the nature of the subject-matter dealt with in the part and its relative importance in the setting of the whole bargain, whether the impugned part is one of several promises supported by different considerations or by a common consideration, or whether it is part of a single consideration supporting a promise or promises or whether it is one of several considerations, and, if so, whether it is a material or important part of the total consideration or merely subordinate.” (Emphasis added).
At the time of the decision in Brew v Whitlock (No.2) the state of the law of contract was such that the Court could not have regard to extrinsic evidence in construing the intention of the parties and the contract generally. Chesire and Fifoot point out in paragraph 6.17:-
"6.17 It is submitted that this is now incorrect and that it is legitimate, if necessary, to resort to extrinsic evidence to establish the overall context of the commercial relationship – the factual matrix – in relation to the issue of severance, as it is to other issues in construing contracts." (Note Rieson v SST Consulting Services Pty Ltd [2005] FCAFC 6 at paragraph 60 per Wilcox, Sackville, and Finn JJ). “
The Full Court of the Federal Court in Rieson v SST Consulting Services Pty Ltd [2005] FCAFC 6 relied upon a 1938 decision of Jordan CJ in McFarlane v Daniell (1938) 38 SR (NSW) 337 and stated at paragraph 51(i):-
“51. For present purposes we would note the following.
(i) To paraphrase Jordan CJ in McFarlane v Daniell (1938) 38 SR (NSW) 337 at 345 where valid promises supported by legal consideration are associated with, but are separate in form from, invalid promises, the test of whether they are severable is whether they are in substance so connected with the others as to form an indivisible whole which cannot be taken to pieces without altering its nature. However, if the elimination of the invalid promises changes the extent only but not the kind of the contract, the valid promises are severable. In contrast, if the substantial promises were all illegal or void, merely ancillary promises would be inseverable. See also Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 at 411; Carney v Herbert [1985] AC 301 at 310 – 311.” (Emphasis added).
It seems to me that the most “substantial promise” in the financial agreement in this case is the promise made by the parties to settle their outstanding property dispute. The primary reason for the agreement relates to property settlement. So far as the agreement refers to maintenance – the view that I have formed is that maintenance is of lesser importance than the main substantial promise relating to property settlement. Furthermore, the “valid promise” (to use Jordan CJ’s wording) relating to property settlement is separate in form to the “invalid promise” (relating to maintenance) and the elimination of the invalid promise changes the extent only and not the kind of contract. In addition, the two promises (property settlement and maintenance) are not "so connected… as to form an indivisible whole which cannot be taken to pieces without altering its nature."
My view in this regard is strengthened by the wording of section 90C(2) which makes it clear (as do sections 90B and 90D) that a financial agreement may deal with "all or any" of the property of the parties to the agreement. To put it another way – not every asset or issue needs to be included in the one agreement.
There is no extrinsic evidence in the matter before the Court which is so persuasive that it would change my view. On the evidence before the Court – the view that I have formed is that the reference to “maintenance” in paragraph 5.4 could be severed from the contract and the balance of the financial agreement would remain intact. As noted at the beginning of this discussion, it is not, however, an issue that I am compelled to decide in the circumstances of this case.
Section 66L and any other relevant provisions of the Family Law Act 1975
It was made clear in cases such as Tynan & Tynan (1993) FLC 92–385 (per Moss J at 79-983) and by Warnick J In the Marriage of J M and K A Cosgrove (1995) 20 Fam LR 751 and reiterated more recently in a decision of Kent J in Marlowe-Dawson v Dawson (No. 2) 2014 FamCA 599 (at paragraph 257) that the making of an adult child maintenance order remains a matter of discretion, even if the terms of section 66L(a) or (b) are met.
At paragraph 258 in the Marlowe-Dawson decision Kent J stated:-
“258. In determining whether an application for adult child maintenance is “necessary” as described in s 66L of the Act, the guiding principle is what, in all the circumstances, is reasonable (see Cosgrove v Cosgrove (No 2) (1996) FLC 92-701).”
Thus, the “guiding principle” is – what, in all the circumstances, is reasonable.
Kent J in the Marlowe-Dawson decision also made it clear that an application made under section 66L for adult child maintenance must be determined in accordance with the provisions of the Family Law Act1975 which govern child maintenance generally – in particular sections 66H, 66J and 66K.
Section 66H provides:-
“Approach to be taken in proceedings for child maintenance order
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).”
The matters to be taken into account by the Court, in considering the financial support necessary for the maintenance of the child are set out in section 66J. That section of the Act states:-
“(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 on in subsection (3)).
(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.
(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.
(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).”
Section 66K of the Act then sets out the matters that the Court must take into account in determining the contribution that each party should make to the maintenance of the child. Section 66K states:-
“(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.
(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.
(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.
(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 of 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.
(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.
(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).”
Many of the subsections in the above-mentioned sections of the Act are interconnected and there is an overlapping of considerations. In the case currently before the Court it is noteworthy that the principal objects of the legislation are to ensure that children receive a proper level of financial support from their parents and that children will have their proper needs met from reasonable and adequate shares of their parent’s income et cetera. Further, parents are to share equitably in the support of their children.
Section 66H
As noted above – 66H states the approach to be taken in proceedings for child maintenance orders. The first matter is for the Court to consider the financial support necessary for the maintenance of the child and this is expanded upon in section 66J.
Section 66J
In the case currently before the Court the child (Ms A Cumpton) does not have any income (apart from welfare payments) and nor does the child have an earning capacity or property and financial resources. The child is severely disabled. The child is now an adult and her special needs have been documented earlier in these reasons. It is noteworthy that the Court is to disregard any entitlement of the child or any other person (in this case, in particular, the father) to an income tested “pension, allowance or benefit” (Note section 66J(3)(b)(ii)).
I note the wording of section 66J(3)(a). The child in this case does not have the capacity to earn or derive income. The child (according to the evidence) does not own any assets (apart perhaps from a bank account into which is deposited Centrelink payments) and nor are there any assets held for the benefit of the child (income producing or otherwise). The father has provided detailed evidence in relation to the average weekly expenses for Ms A Cumpton over the 12 month period leading up to the swearing of his trial affidavit on 28 July 2020. Annexure I to the father's trial affidavit filed 3 August 2020 is where the father has provided the detailed evidence. I will include here, in table form, the relevant details of the father's evidence concerning expenses for Ms A Cumpton. In a very fair way the father has apportioned the expenses within the household between Ms A Cumpton, himself and Ms A Cumpton's brother, Mr B Cumpton. Table 1 of annexure I states:-
(See page 17)
| ITEM | WEEKLY $ | Ms A Cumpton ’S WEEKLY $ |
| ELECTRICITY - AGL | $22.20 | $7.40 |
| WATER – URBAN UTILITIES | $26.10 | $8.70 |
| RATES - BCC | 23.10 | $7.70 |
| INSURANCE HOME & CONTENTS | $42.30 | $14.10 |
| HOME PHONE / CABLE / INTERNET | $25.40 | $8.40 |
| HEALTH INSURANCE – NIB | $41.20 | $13.70 |
| GROCERIES | $250 | $83 |
| POOL MAINTENANCE | $6 | $2 |
| HOME ROOF REPAIRS – JULY 2019 $3300 | $63 | $21 |
| HOME REPAIRS – REPLACE HOT WATER SYSTEM JULY 2019 $1870 | $28.80 | $9.60 |
| HOME REPAIRS – REPLACE BROKEN POOL PUMP AND CHLORINATOR JAN/MAY 2019 $1700 | $32 | $10.90 |
| REPLACE BROKEN WASHING MACHINE APRIL 2019 – 946 | $18.20 | $6 |
| SUBTOTAL | $192.50 |
Table 2 in annexure I of the father's affidavit sets out the following expenses which the father has apportioned between himself and Ms A Cumpton. There is an error in the arithmetic. The total should actually be $55.30 not $53.30. I have not altered the evidence as written. Those expenses are as follows:-
ITEM
WEEKLY $
Ms A Cumpton’S WEEKLY $
MOBILE PHONE
$9.20
$4.60
CAR FUEL
$40
$20
CAR INSURANCE
$15.40
$7.70
CAR TOLLS
$10
$5
CAR REPAIRS & ROADSIDE ASSISTANCE SUBS
$32
$16
SUBSCRIPTIONS – MUSIC
$4
$2
SUBTOTAL
$53.30
Finally, there is table 3 provided by the father which he has entitled, "Sole Expenses of Ms A Cumpton". That table reads:-
ITEM
Ms A Cumpton
WEEKLY $LIFESTYLE ACTIVITIES
$20
MEDICATION & PERSONAL HYGIENE NEEDS
$5
BEDROOM AIRCON PURCHASE & INSTALL Ms A Cumpton SEPTEMBER 2019 $1450
$27
VACATION / TRAVEL
$29
CLOTHING
$5
ENTERTAINMENT / EATING OUT
$10
PASSPORT RENEWAL
$5.80
HEALTH INSURANCE
$19.25
MEDIC ALERT ANNUAL SUBS
$1
SUBTOTAL
122.05
TOTAL WEEKLY EXPENSES APPORTIONED TO Ms A Cumpton
$367.85
The father has therefore totalled weekly expenses for Ms A Cumpton (in the 3 tables included above) in the sum of $367.85. The correct arithmetic is in fact $369.85.
To start with, it should be noted that Ms A Cumpton has lived at home since birth. Ms A Cumpton has never lived in an institution of any kind. The father says that, at some stage, the mother had wanted Ms A Cumpton to be placed in an institution of some kind. I do not need to decide that particular issue. The fact of the matter is that the parents always cared for Ms A Cumpton at home – when the parents were still together. After separation Ms A Cumpton has stayed at home and has been primarily cared for by her father, but her mother has taken care of her every second weekend. Certainly at the time that the parents entered into the parenting plan (4 November 2016) it was agreed that Ms A Cumpton would “reside primarily with Mr Cumpton at E Street”. I have already made reference to the fact that it is conclusively proven that Ms A Cumpton has both mental and physical disabilities. The provision of maintenance to Ms A Cumpton is required because of those mental and physical disabilities. The question is what maintenance is “necessary”? (Section 66L). Ms A Cumpton lives in the former matrimonial home with the father and her brother. All the items listed in the 3 tables provided by the father (so far as the items themselves are concerned – as opposed to the amounts) are, it seems to me, fair, reasonable and necessary. I note that Warnick J in the decision of In the Marriage of J M and K A Cosgrove (1995) 20 Fam LR 751 at page 756 stated, inter alia:-
"The word "necessary" does not mean "absolutely essential" but involves a consideration of "reasonableness".
In the circumstances of this case I understood the respondent mother’s submissions to be that only those items that she specifically raised in argument where the items that she objected to. It is clear enough that the provision of maintenance for Ms A Cumpton is necessary because of her mental and physical disabilities and that because she shares a house with her father and brother it is reasonable that Ms A Cumpton contribute a reasonable share towards the costs and outgoings. To this end, the provision of services and Ms A Cumpton's contribution to those services can most definitely be said to be necessary in the circumstances. This includes electricity; water costs; BCC rates; insurance on the home and contents; home phone/cable/Internet. In relation to the last item Ms A Cumpton does watch some shows and listens to music. Also, the provision of a telephone at the house is to the benefit of the child – as is the existence of a mobile telephone. Other items which are clearly "necessary" for the maintenance of Ms A Cumpton include health insurance; grocery; pool maintenance; car fuel; car insurance; car tolls; car repairs and roadside assistance subscription and music subscriptions. In addition, the lifestyle activities; medication and personal hygiene needs; clothing; entertainment/eating out; passport renewal; additional health care premium and medic alert annual subscription – these are all items that most definitely can be said are necessary for Ms A Cumpton's maintenance because of her mental and physical disabilities. The items that I have included here in this paragraph are all expenses that one would normally expect to see in relation to a young adult who was still living in the family home. That is, contribution towards the cost of running a family home as well as other costs and contributions relating specifically to the young adult. I make here a specific finding that, in relation to all of the matters mentioned in this paragraph – I accept the fathers’ evidence and I find that his estimates are reasonable and such outgoings are necessary for Ms A Cumpton’s maintenance. This includes in particular in relation to his estimates concerning the cost of fuel, toll costs and other motor vehicle costs. In respect of any of the other items contained in the father's 3 tables – but not listed here in this paragraph – I will refer to those other items separately in these reasons.
The mother argued that the home roof repairs; the replacement of the hot water system; the replacement of the broken pool pump and chlorinator; the replacement of the broken washing machine and the purchase of an air conditioner for Ms A Cumpton's bedroom were all one-off expenses and will not be repeated. On the other hand, the father says there will be some sort of ongoing expenses of a similar nature and in order for there to be a fair and reasonable assessment there should be some allowance for ongoing home repairs and for replacement of items of equipment. The father submits that the expenses should be “averaged”. I am not precisely certain what he means by "averaged” but I do accept that some allowance should be included for ongoing home repairs and maintenance. The father has sought in respect of Ms A Cumpton's share towards home roof repairs ($21); replacement of hot water system ($9.60); replacement broken pool pump and chlorinator ($10.90); replacement of broken washing machine ($6) and Ms A Cumpton’s bedroom air-conditioning purchase and installation ($27). The total of those amounts is $74.50. Most of those items were expended almost 2 years ago. I do think that an ongoing cost for Ms A Cumpton's share towards home maintenance and purchase of new electrical items et cetera should be included in the calculations of Ms A Cumpton’s weekly expenses. An amount of $10 should be included as Ms A Cumpton’s weekly share. I do not consider that the Act or the authorities require this Court to exclude entirely any consideration of one off capital costs. In a decision entitled Re AM (Adult Child Maintenance) (2006) 198 FLR 22, Carmody J sitting at first instance in the Family Court of Australia considered an application for adult child maintenance. Carmody J noted an earlier decision of a Registrar of the Family Court of Australia. In a case called L and L (FamCA, McGrath R, BR8286 of 1991, 12 January 1995, Unreported) the Registrar relied upon an earlier authority of a State Court in Kallin v Kallin [1944] SASR 73 (at 75) that the term “maintenance” meant:-
“… the act of maintaining, and denotes the regular supply of food, clothing and lodging; the provision of the necessaries and of the conveniences of life.”
Carmody J disagreed with that narrow definition. His Honour stated at paragraphs 101 and 102, as follows:-
“101 Maintenance, however, is a term of generous import in the family law context and is commonly understood to mean something more than mere subsistence or necessaries of life. It includes financial provision for all reasonable, current and likely future daily requirements, including out of pocket, adequate housing, health and education related expenses, as well as any special needs. It is not a single concept concerned only with the payment of money. There is no reason in principle why a maintenance order cannot involve, for example, direct provision of goods or services.
[102] Thus, the relevant concept of “maintenance” under the Act appears to be considerably wider than Kallin suggests”
In particular, I note Carmody J’s assessment that the word “maintenance” in the family law context is “a term of generous import”. Furthermore, His Honour specifically noted that it may well include “any special needs”. In that respect, His Honour cited as an authority of Re: Borthwick (decd); Borthwick v Beauvais [1949] Ch 395. The requirement in section 66L (in the circumstances of this case) make it clear that the Court "must not make a child maintenance order in relation to (Ms A Cumpton)… unless the Court is satisfied that the provision of the maintenance is necessary… because of Ms A Cumpton's mental or physical disability”. Again, this harks back to the view expressed by Warnick J In the Marriage of J M and K A Cosgrove (supra) – that the word "necessary" does not mean absolutely “essential”. These authorities support my conclusions in relation to the type of items (so-called, one-off items) referred to in paragraph 65 of these Reasons.
In relation to the vacation and travel costs – (I note in August 2019 a four night cruise and travel insurance were provided for Ms A Cumpton) the weekly amount to cover that was $29. I infer from that evidence that the total cost of the cruise and travel insurance was in the vicinity of $1,500. It is not unreasonable for there to be an amount included for Ms A Cumpton to be taken on a holiday of that nature once per year. Obviously such holidays would be dependent upon the end of the pandemic. I am inclined to include the sum of $20 per week in the expenditure allowances as something that is reasonable for the child, Ms A Cumpton.
The conclusion I have reached is that the evidence of the father (which is reliable) establishes that the reasonable weekly needs for Ms A Cumpton's support is approximately $296.35. The amount of $296.35 is ascertained by reference to tables 1, 2 and 3 of annexure I to the father's trial affidavit – taking into account those amounts that the Court has reduced for the reasons explained. The Court notes that the home roof repairs; the replacement of the hot water systems; the replacement of the broken pool pump et cetera; the replacement of the broken washing machine and the air-conditioning purchase for Ms A Cumpton totalled $74 .50. The Court has deleted those items from the weekly expenses allowable for Ms A Cumpton but has included in their place the sum of $10 per week to represent Ms A Cumpton’s weekly share in respect of ongoing home maintenance and the purchase of new electrical items et cetera. Furthermore, the vacation sum of $29 per week has been reduced to $20 per week. This reduces the overall total weekly expenses apportioned to Ms A Cumpton (as determined, reasonable and necessary by the Court) to $296.35. It will be apparent that the Court has come to the conclusion that the items in question and the amounts in question are “necessary” as that term is used in section 66L(1)(b) of the Act.
The father was an impressive witness. He is very much in control of the family budget. He knows precisely what the expenses are each week. The father's evidence establishes the necessary and reasonable weekly needs for Ms A Cumpton's support that have been outlined and the Court has specifically stated what amounts are accepted.
Section 66K
I have already made mention of the objects of Division VII of Part VII of the Act relating to child maintenance orders (section 66B). Parents are to share "equitably" in the support of their children. Further, the parents of a child are, of course, the people who have the primary duty to maintain a child. The use of the term "child" of course encompasses an adult child for the purposes of this part of the legislation.
When the mother and the father were still married (prior to separation) they ran a transport company. The mother also subsequently took on work in a retail business.
The father now is, in essence, a full-time carer for Ms A Cumpton. He receives a Centrelink carer’s benefit. This income received from Centrelink by the father must be disregarded by the Court in determining the financial contribution to be made towards Ms A Cumpton's support. In this regard I note section 66K(4)(a). In addition to the welfare payments received by the father, he does a minimal amount of work. He also occasionally assists the local transport company. He conducts his work at those times when Ms A Cumpton is attending her lifestyle program. The father usually works no more than 10 – 15 hours per week. He notes that the Centrelink guidelines allow him to work up 25 hours per week. After his "work expenses" – the father's taxable income for the past two financial years has been $6,458 and $6,016 (note paragraph 46 of the father's affidavit filed 3 August 2020). There is no doubt that the father has foregone income in order to take on the role as primary carer for Ms A Cumpton.
The respondent mother earns an annual income of approximately $70,000. In this regard I note the respondent's Financial Statement filed 21 September 2019.
The mother has also included in the same Financial Statement an assertion that her total personal expenditure was $2,290 per week. I do not accept this evidence from the mother. The figure comes from item 33 of the mother’s Financial Statement. Item 32 is headed, "total of all other expenditure". The amount included as the "average weekly amount" is $812. In fact, the mother's share of the other expenses (contained in item 32 and at Part N of the document) is only $431. Furthermore, in calculating her "total personal expenditure" on a weekly basis the mother has included the sum of $650 per week in respect of mortgage payments. She refers to the "CBA". I note item 21 in that regard. In fact, that is not the mother's personal expenditure. At item 46 of the Financial Statement the mother makes clear that she is only liable for one half of that sum, namely $325. Hence, there are two particular items identified from the mother's Financial Statement which are clearly erroneous.
The mother has remarried and her new husband is Mr Rainford. Mr Rainford had been working as a transport worker - however I note that by reason of section 66K(4)(b) the Court, in determining the contribution that should be made by a party to the maintenance of the child, must disregard the income and earning capacity of any person who does not have a duty to maintain the child. In this case that would include Mr Rainford. His income is therefore not relevant. It is clear enough from the mother's evidence (page 59 of the transcript of 31 August 2020) that her own salary had increased from $50,000 to over $70,000.
The mother was not an impressive witness. Where there is any discrepancy between the evidence of the father and the evidence of the mother I prefer the evidence of the father. In addition to the glaring errors in the mother's Financial Statement (as noted above) – I was not at all impressed by the mother's evidence in the witness box. In particular – the mother had maintained in her "Statement of Defence" (filed 15 May 2020) inter alia:-
“The applicant has supplied a copy of his 18/19 tax return on 21 April 2019. The applicant is now not only misleading the court, he is now misleading the ATO and Centrelink. The applicant has omitted on the return that he is receiving any benefits/payments from Centrelink, thus reducing his assessable income to give the appearance of a low taxable income.
The applicant has stated an amount of $20 000 exactly as his income which appears more like an estimate. It would also appear that the applicant has reverse engineered his tax return to be below the Centrelink threshold, again in an attempt to give the appearance of a low taxable income.”
The evidence establishes that the applicant father, upon receipt of the Statement of Defence from the mother, forwarded to the mother on 22 May 2020 an email which was a copy of the father's amended tax return that showed the declaration of the carer's pension from Centrelink. That particular email is exhibit 1 in these proceedings. The respondent mother received the email. Notwithstanding that the situation had been clarified by the father – by means of the email dated 22 May 2020 – the mother proceeded in her affidavit filed 3 August 2020 to affirm the following:-
“16. The applicant has mislead the court and the ATO on his 18/ 19 tax returned by omitting that he is in receipt of any benefits/payments from Centrelink, thus reducing his assessable income to give the appearance of a low taxable income. The applicant stated an amount of $20 000 as his income, which appears as an estimate and appears that the applicant has reverse engineered his tax return to be below the Centrelink threshold.”
The mother was questioned about this in the witness box. In affirming the affidavit of 3 August 2020 the mother disregarded the amended copy of the taxation return that she had received on 22 May 2020. It does seem to be correct that there had been an earlier omission in an April 2020 version of the father's tax return. But by the time the mother affirmed the 3August affidavit she was well aware that the father had declared the Centrelink income in his tax return because the father had sent the amended tax return to her on 22 May. The Court provided the mother with a warning and with a certificate under section 128 of the Evidence Act 1995 (Cth). The mother’s evidence in this regard was not impressive. The mother seems to have been well aware of the true state of affairs but had chosen to affirm otherwise in her 3 August 2020 affidavit.
The mother’s evidence was, in many respects unimpressive. In her trial affidavit she focused to a significant degree upon the question relating to the “BFA". There was no supporting documentation in relation to her income (by means of taxation returns). There was no supporting documentation in relation to her assertion of the amounts that she personally is responsible for in respect of a particular mortgage. There was no independent documentation in relation to her assertion that she has to spend $130 per week on fuel.
The Court notes that the child Ms A Cumpton spends every second weekend with her mother. When the child is with the mother the mother is responsible for any expenses for Ms A Cumpton.
The mother was preoccupied with the fact that Ms A Cumpton receives benefits from the National Disability Insurance Scheme. The evidence of the father clarified the fact that benefits from the National Disability Insurance Scheme amount to entitlements which fund various activities and outings for Ms A Cumpton. This includes her lifestyle program and carers who come to the house each weekday afternoon to assist with Ms A Cumpton's personal care.
In addition to the benefits received from the National Disability Insurance Scheme – the father also confirmed that Ms A Cumpton receives a Centrelink payment and that money goes into a separate account. It is used to pay for her expenses. However, I particularly note and draw the parties’ attention again to section 66J(3)(b) which states that – “in taking into account the income, earning capacity, property and financial resources of the child, the Court must… disregard any entitlement of the child or any other person to an income tested pension, allowance or benefit”. This provision relates to both benefits received by Ms A Cumpton under the NDIS and to her Centrelink payments made to her. It also relates to Centrelink payments made to the father.
Given that the mother was an unimpressive witness and given the lack of corroborating documentation provided by the mother the view that I have reached is that the mother does in fact have the income and earning capacity to contribute to the maintenance of Ms A Cumpton by way of periodic payments.
I have reached a conclusion (as noted earlier) that the reasonable weekly expenses that are necessary for Ms A Cumpton totals $296.35 (approximately). I note that the mother already has the care of Ms A Cumpton for 78 nights per year (approximately). This is because the child spends time with the mother from Friday afternoon until Monday morning each alternate weekend (Transcript of Proceedings, p.25-26). That represents three nights per fortnight or 78 nights per year. The evidence establishes that the mother pays for all of the necessary expenses and outgoings for the child when the child is in her care. In the exercise of my discretion therefore, I do consider that there should be something less than a 50% contribution by the mother to the father in respect of the reasonable and necessary outgoings in respect of Ms A Cumpton's maintenance. The requirement of the Act is that each parent contribute “equitably” rather than “equally” in support of their children (noting section 66B (2)(b)). I have come to the view that an equitable outcome would see the respondent mother pay adult child maintenance to the applicant father in the periodic sum of $120 per week in respect of the support of the child Ms A Cumpton. I note that in the Amended Initiating Application filed by the applicant father on 23 December 2019, he sought that the mother contribute the sum of $175 per week towards the maintenance of the adult child. He also sought that payment commence from the date of the filing of the application. It will be apparent from the reasons provided here that I consider the sum of $175 per week by way of contribution by the mother to be excessive. It will be apparent for the reasons stated that I have come to the conclusion that the correct figure (having regard to the provisions of the Act and the authorities) is $120 per week. Presumably the father seeks the payment from the time that the Initiating Application was originally filed, namely 26 August 2019. The child actually turned 18 on 6 February 2016. The parties separated a few months later, on 19 May 2016. By the time the application was filed the child was aged 21 years and six months. The father seeks, in effect, a retrospective order. In the Court's assessment pursuant to the Act and in particular in relation to section 66K – the Court was required to take into account matters to determine the contribution and (if any) that should be made by the respondent mother. It will be apparent from the reasons given that the Court, in the exercise of its discretion, has come to the conclusion that the mother should make a contribution on a periodic basis. I am not satisfied that there is sufficient evidence before the Court to conclude that the mother would be in a position to make any form of lump sum payment to take into account a retrospective aspect to the adult child maintenance award. The Court has concluded that it is appropriate for the mother to make a prospective contribution by way of periodic payments. To the extent that the father's application therefore relates to a retrospective component – I do not accept that such an order would be appropriate in the particular circumstances of this case.
Furthermore, I note that in the decision of Re AM (Adult Child Maintenance) (2006) 198 FLR 221, Carmody J put a time limit on the adult child maintenance order, because it was possible that a person’s financial circumstances will change in the future and have a possible impact upon their ability to pay adult child maintenance. In the circumstances of that case, His Honour decided that the order should operate for five years. In the current case before the Court I have come to the conclusion that the order that I will put in place for the payment of adult child maintenance by the mother to the father (in respect of the adult child Ms A Cumpton) will be in the sum of $120 per week and such order should operate for a period of seven years. The reason I have included a seven year timeframe is primarily because I consider five years to be short of the mark on the facts of this case currently before the Court. These parties have been involved in quite acrimonious litigation in relation to this issue. Both parties alleged that the other had lied to the Court. This family needs a somewhat longer period of certainty. The amount ordered to be paid relates only to a prospective order. That is, the payments will commence from 17 December 2020 (the date of the delivery of Judgment) and not from any earlier date. Given that the Court has exercised its discretion and refused the father’s application for any retrospective aspect of the order and noting that the family needs certainty for a significant period of time it seems to me that the temporal limit that should be placed upon the order is seven years in the circumstances of this case. The extent of the child’s disabilities are also relevant in relation to a seven year order. That is, the child’s circumstances will not improve and she will require ongoing assistance, as outlined in these Reasons for Judgment.
For the Reasons stated, the Court shall make orders in the following terms:-
i)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.
ii)That the preceding Order shall operate for a period of seven years from 17 December 2020.
Orders shall issue accordingly.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 17 December 2020
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