Cogswell and Calvery - [2010] FMCAfam 172

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…

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 Cogswell and Calvery

Details

AGLC: Cogswell and Calvery [2010] FMCAfam 172
Case: [2010] FMCAfam 172
Decision Date: 1 March 2010

CaseChat Overview and Summary

The case of Cogswell and Calvery involved a dispute between the parents regarding the care and custody of their children. The matter was heard in the Family Court of Australia. The father had filed an amended application for changes to the existing parenting orders, while the mother opposed the application and sought costs.

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

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.

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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