Cooper and Kingsley - [2013] FCCA 277

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOPER & KINGSLEY

[2013] FCCA 277

Catchwords:
FAMILY LAW – Application for discharge of Child and Spousal Maintenance Order.

Legislation:
Family Law Act 1975, ss.64, 65, 66, 72, 75, 81, 83

Cases cited:
Wreford and Caley [2010] FamCAFC 21
Mathieson & Hamilton [2006] FMCAfam 238

Applicant:

MR COOPER

Respondent:

MS KINGSLEY

File Number:

NCC 3131 of 2011

Judgment of:

Judge Myers

Hearing date:

5 December 2012

Date of Last Submission:

5 December 2012

Delivered at:

Newcastle

Delivered on:

13 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Levick

Solicitors for the Applicant:

Attwaters Solicitors

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:

Hunter Family Law Centre Pty Ltd

ORDERS

By consent the document summarising the winnings and earning of the applicant from [sport omitted] over the period 2000 – 2012 shall form exhibit “f” in the proceedings.
That the spousal maintenance order made 16 January 1989 be discharged as at the date of these orders.
That the child maintenance orders made 16 January 1989 be discharged as at the date of these orders.
That the sum of $35,000.00 garnished by the Child Support Agency on or about 7 September 2011 be paid in reduction of any outstanding liability of the applicant for child or spousal maintenance and that any arrears then owing by the applicant for child or spousal maintenance be reduced to nil as at the date of these orders.
The court requests that the Child Support Registrar waive all penalties payable by the applicant resulting from the collection of monies by the Child Support Agency in respect of the spousal maintenance and child maintenance order made 16 January 1989.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 3131 of 2011

MR COOPER

Applicant

And

MS KINGSLEY

Respondent

REASONS FOR JUDGMENT

This is a matter that came before the court for final hearing in respect of an Initiating Application filed by the applicant Mr Cooper on 1 September 2011 seeking orders to discharge an order for spousal maintenance made in the [omitted] Local Court on 16 January 1998 with effect from 19 January 1998, and discharge a child maintenance order made by the [omitted] Local Court made on 16 January 1998.
The applicant having now it would appear conceded in the applicant’s written submissions that the court lacks jurisdiction sufficient to order the Child Support Registrar to discharge any penalties the applicant seeks that the court request that the Child Support Registrar waive any penalties that may have accrued as a result of non-payment of the spouse maintenance and children’s maintenance order and that the Child Support Registrar reimburse the applicant the sum of $25,000.00 retained by the Child Support Registrar from monies garnished from the applicant’s Newcastle Permanent Building Accounts.
The respondent Ms Kingsley seeks orders that the applicant’s application be dismissed and an…

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 Cooper and Kingsley

Details

AGLC: COOPER & KINGSLEY [2013] FCCA 277
Case: [2013] FCCA 277
Decision Date: 13 May 2013

CaseChat Overview and Summary

In the matter of *Cooper and Kingsley*, heard before Judge Myers, the dispute concerned the discharge of existing spousal and child maintenance orders and the application of funds previously garnished by the Child Support Agency. The applicant sought to resolve outstanding maintenance liabilities and penalties.

The court was required to determine whether to discharge the spousal and child maintenance orders made in 1989, how to apply the $35,000 garnished by the Child Support Agency, and whether to request the waiver of penalties incurred by the applicant.

Judge Myers ordered the discharge of the spousal and child maintenance orders as at the date of the current orders. The court further directed that the $35,000 garnished by the Child Support Agency be applied to reduce any outstanding liability for child or spousal maintenance, with any remaining arrears to be reduced to nil. Finally, the court requested that the Child Support Registrar waive all penalties payable by the applicant arising from the collection of monies under the previous maintenance orders.

Orders

Orders of the court

By consent the document summarising the winnings and earning of the applicant from [sport omitted] over the period 2000 – 2012 shall form exhibit “f” in the proceedings.

That the spousal maintenance order made 16 January 1989 be discharged as at the date of these orders.

That the child maintenance orders made 16 January 1989 be discharged as at the date of these orders.

That the sum of $35,000.00 garnished by the Child Support Agency on or about 7 September 2011 be paid in reduction of any outstanding liability of the applicant for child or spousal maintenance and that any arrears then owing by the applicant for child or spousal maintenance be reduced to nil as at the date of these orders.

The court requests that the Child Support Registrar waive all penalties payable by the applicant resulting from the collection of monies by the Child Support Agency in respect of the spousal maintenance and child maintenance order made 16 January 1989.

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

Full text does not contain this section.