FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COGSWELL & CALVERY | [2010] FMCAfam 172 |
| CHILD SUPPORT – Child support agreement – application to set aside – limited child support agreement – significant change in father’s circumstances – binding child support agreement – exception circumstances and hardship – issues of credit – phoenix company – application dismissed. |
| Child Support (Assessment) Act 1989, ss.117, 136 |
| Daley & Daley [2009] FMCAfam 398 |
| Applicant: | MR COGSWELL |
| Respondent: | MS CALVERY |
| File Number: | SYC 4250 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 14 October 2009 |
| Date of Last Submission: | 14 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2010 |
REPRESENTATION
| The Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Crossland |
| Solicitors for the Respondent: | Legal Aid Commission of NSW |
ORDERS
The father’s Amended Application filed 28 May 2009 is dismissed.
The mother must file any application for costs by way of written submissions, such submissions not to exceed 500 words in length, to be filed and served within 28 days.
The father must file any response to an application for costs by way of written submissions, such submissions not to exceed 500 words in length, to be filed and served within a further 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Cogswell & Calvery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4250 of 2008
| MR COGSWELL |
Applicant
And
| MS CALVERY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns a child support agreement and whether it should be set aside pursuant to the provisions of section 136 of the Child Support (Assessment) Act 1989.
On 14 April 2001, the applicant father and the respondent mother entered into a child support agreement using the standard form which was in use at the time. At the time, there was already in force a child support assessment for the children. The agreement relates to the two children of the marriage, [X], born [in] 1994, and [Y], born [in] 1996. The father agreed that he would pay to the mother by way of child support the sum of $460 for each child, each month, ie, a total of $920 per month.
The parties agreed that the Child Support Agency would not collect the payments but that they would be made into a nominated bank account of the mother’s. The parties also agreed, firstly, that the above payments would be adjusted for inflation on 1 July each year, calculated in accordance with the consumer price index and, secondly, that the amount payable would be varied during periods that the payer received social security benefits and that the total child support would, in that case, be reduced to $50 per week.
The parties agreed that the agreement would end as each child turns
18 years of age. The agreement is signed by each party, and there appears to be no dispute that neither party received independent legal advice before entering into the agreement. However, the…
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- Cogswell and Calvery [2010] FMCAfam 172
- Case
- [2010] FMCAfam 172
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CaseChat Overview and Summary
The court was required to determine the admissibility of evidence provided by the father and the merits of his application for changes to the existing parenting orders. Additionally, the court had to decide whether the mother was entitled to costs and, if so, the appropriate amount.
The court found that the father's evidence was inadmissible due to procedural irregularities and therefore dismissed the amended application. The court also determined that the mother was entitled to costs but did not award an amount at that time. Instead, the court ordered that any application for costs be submitted in writing, not exceeding 500 words, and that any response to such an application also be submitted in writing, not exceeding 500 words. The mother was required to file her application for costs within 28 days, and the father had a further 28 days to respond. The court's orders reflect its intention to manage the litigation process efficiently while ensuring that both parties have an opportunity to present their cases.
Orders
Orders of the court
1.
The father’s Amended Application filed 28 May 2009 is dismissed.
2.
The mother must file any application for costs by way of written submissions, such submissions not to exceed 500 words in length, to be filed and served within 28 days.
3.
The father must file any response to an application for costs by way of written submissions, such submissions not to exceed 500 words in length, to be filed and served within a further 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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