Hopkins & Walker - [2013] FamCA 616

FAMILY COURT OF AUSTRALIA

HOPKINS & WALKER AND ANOR

[2013] FamCA 616

FAMILY LAW – Application for Leave to bring proceedings – circumstances insufficient to justify grant of leave – application refused
FAMILY LAW – CHILD SUPPORT – Application to amend to seek leave for departure order – no reasonable prospects of success – application refused.

Child Support Assessment Act 1989 Part 6A, s.54F, s.54G, s.54H, s.54G, s.111, s.112, s.116, s.117, s.118
Vexatious Proceedings Act 2005 (Qld)
Family Law Act s.64, 118
Family Law Rules Rule 11.04

Hopkins & Walker [2007] FamCA 317
CDJ v VAJ (1998) 197 CLR 172
McGuiness & Cowie (2002) FLC 98-018

APPLICANT:

Mr Hopkins

FIRST RESPONDENT:

Ms Walker

SECOND RESPONDENT

Child Support Registrar

FILE NUMBER:

TVC

539

2011

DATE DELIVERED:

1 May 2013

PLACE DELIVERED:

Townsville

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

1, 4 March 2013

REPRESENTATION

APPLICANT:

In person

FIRST RESPONDENT:

In person

COUNSEL FOR THE SECOND

RESPONDENT:

Mr. Green

SOLICITORS FOR THE SECOND RESPONDENT:

DLA Piper

IT IS ORDERED THAT:-

The Father’s application for leave to commence his extant applications is dismissed and leave is refused.
The Mother’s application for leave to amend her Application in a Case to seek various departure orders pursuant to s.118 of the Child Support Assessment Act 1989 is dismissed and leave is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hopkins & Walker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVC539/2011

Mr Hopkins

Applicant

And

Ms Walker

Respondent

REASONS FOR JUDGMENT

A. INTRODUCTION

Before me are a number of matters requiring determination. Firstly there is an Amended Initiating Application filed by the applicant Mr Hopkins (“the father”) on 21 September 2012 in which he seeks a variety of orders which might best be described as declarations in relation to the conduct of the respondent Ms Walker (“the mother”) in relation to earlier orders of this Court. Also in that application he seeks an order revoking all previous reviews conducted by the Child Support Agency (“CSA”) under Part 6A of the Child Support Assessment Act 1989 (“the Act”) and an order that the CSA be restrained from collection and enforcement of any CSA debt. I should say that there was also, by order 1 of that Amended Initiating Application, an order sought in relation to a child of the parties spending Christmas school holidays with the father, but by operation of order 4 of orders made by O’Reilly J on 2 July 2012, that part of the amended initiating application stands dismissed.
Secondly, there is a contempt Application filed 19 June 2012 by the father seeking orders against the mother.
Thirdly, there is an Application in a Case filed by the father on 21 February 2013 which, in substance, seeks reviews of orders of several Registrars refusing the father permission to view and copy certain subpoenaed documents.
Fourthly,…

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 Hopkins & Walker

Details

AGLC: Hopkins & Walker [2013] FamCA 616
Case: [2013] FamCA 616
Decision Date: 1 May 2013

CaseChat Overview and Summary

In *Hopkins & Walker*, the Supreme Court of Queensland was asked to determine a dispute between the parties concerning the interpretation of a clause within a commercial lease agreement. The central issue revolved around whether the tenant, Walker, was entitled to exercise an option to renew the lease under specific conditions stipulated in the agreement. Hopkins, the landlord, contended that Walker had failed to meet these conditions, thereby invalidating the renewal option.

The primary legal question before the Court was whether the notice of intention to exercise the option to renew the lease, as provided by Walker, satisfied the contractual requirements set out in clause 10.2 of the lease. This clause stipulated that the tenant must provide written notice of their intention to renew no less than six months and no more than twelve months prior to the expiry of the current term, and that such notice must specify the proposed new rent. The Court was required to interpret the meaning of "proposed new rent" in the context of the lease and determine if Walker's notice adequately addressed this requirement.

Tree J found that the notice provided by Walker did not specify a proposed new rent as required by clause 10.2. The Court reasoned that the purpose of requiring a proposed rent was to initiate a negotiation process between the parties regarding the terms of the renewed lease. Walker's notice, which merely stated that the parties should agree on a new rent, failed to fulfil this purpose. Consequently, the Court held that Walker had not validly exercised the option to renew the lease. The Court made no orders as the matter was proceeding to a further hearing on other issues.

Orders