Carter and Carter

[2011] FamCA 100

FAMILY COURT OF AUSTRALIA

CARTER & CARTER [2011] FamCA 100

FAMILY LAW - SPOUSAL MAINTENANCE – Discharge of spousal maintenance order;  Lump sum spousal maintenance; Whether the husband is able to establish just cause for discharging the spousal maintenance order

Family Law Act 1975 (Cth) Sections 72, 74, 75, 80 & 83

Brown & Brown [2007] FamCA 151; (2007) FLC 93-316; (2007) 37 Fam LR 59

In the Marriage of Vautin (1998) 23 Fam LR 627

APPLICANT: MR CARTER

RESPONDENT: MS CARTER

FILE NUMBER: SYC 3668 Of 2009

DATE DELIVERED: 25 February 2011

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Loughnan

PLACE HEARD:  Sydney

HEARING DATE: 27 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT HUSBAND:	Mr R. Maurice
SOLICITOR FOR THE APPLICANT:	David Leamey Solicitor & Barrister

COUNSEL FOR THE RESPONDENT WIFE:	Mr A. Givney
SOLICITOR FOR THE RESPONDENT	Adrian Twigg & Co.

Orders

1.The Initiating Application of the husband filed 18 June 2010 and the wife’s Amended Response to Initiating Application filed 13 January 2011 are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3668 of 2009

MR CARTER

Applicant

And

MS CARTER

Respondent

REASONS FOR JUDGMENT

1. The parties are divorced and the husband has remarried. Nevertheless, for convenience I will refer to the respondent as “the wife” and to Ms B by name. Orders for spousal maintenance were made in favour of the wife by the Supreme Court of NSW in 1970. Those orders were registered under the Family Law Act and were increased on two occasions by consent. The husband seeks that the current order be discharged. The wife opposes that order and seeks lump sum maintenance.

Applications

1. The husband seeks orders in terms of his Initiating Application filed 10 June 2010 as follows:

   1.That pursuant to section 83(1) of the Family Law Act Orders 2 & 3 made on 5^th July 1990 be discharged as and from the date of filing of this Application..

2. In fact the order of 5 July 1990 has already been discharged. No point was taken on this issue. I understand the import of the husband’s application to be that he seeks the discharge of order 4 of the order of the Local Court, Family Matters, Sydney made on 17 August 2001.

3. The wife filed an Amended Response to Initiating Application filed 13 January 2011. There was no reference to the Amended Response during the hearing and it was not formally relied on by the wife.[1] Nevertheless the wife seeks that the husband’s application be dismissed. I take it that she seeks orders in terms of her Amended Response  as follows:

   [1] The Amended Response to Initiating Application is not included in the list of documents to be read in the wife’s Case Outline.

   1.That the Applicant Husband shall pay or cause to be paid to the Respondent Wife within 42 days…