Malone and Malone

[2010] FMCAfam 148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALONE & MALONE [2010] FMCAfam 148

FAMILY LAW – Discharge of spousal maintenance arrears – substantial delay in applying for discharge of spousal maintenance – changed circumstances of the parties.

Family Law Act 1975, s.83

Applicant: MR MALONE

Respondent: MS MALONE

File Number: SYC 7311 of 2008

Judgment of: Kemp FM

Hearing date: 30 November 2009

Date of Last Submission: 11 December 2009

Delivered at: Sydney

Delivered on: 22 February 2010

REPRESENTATION

Counsel for the Applicant: Ms Friedlander

Solicitors for the Applicant: Kells the Lawyers

Counsel for the Respondent: Mr Maddox

Solicitors for the Respondent: Slater & Gordon

ORDERS

1. That the husband’s application filed on 10 December 2008 and as subsequently amended seeking a reduction in spousal maintenance and the discharge of any arrears of spousal maintenance be dismissed save that any arrears for spousal maintenance accrued during the period following the filing of the husband’s application on 10 December 2008 and the discharge of the subject spousal maintenance order on

   
   

   4 February 2009 be discharged.

2. If any party seeks costs, an appropriate application to my chambers may be made within 28 days of today’s date and the Court will deal with that matter by way of written submissions unless the parties wish to be heard orally.  If no such application is made within that time period, there will be no order as to costs.

3. All outstanding applications (save as to costs, including any reserved costs) otherwise be dismissed.

4. All exhibits tendered in these proceedings, be returned at the expiration of 1 (one) calendar month, unless an appeal is lodged.

5. The matter be removed from the list of cases awaiting finalisation.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 7311 of 2008

MR MALONE

Applicant

And

MS MALONE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the husband filed on 10 December 2008 for orders as follows:‑

   (1)That order (9) of the consent orders filed in the Family Court of Australia at Sydney, in proceedings number SY3101 (“the 1992 Family Court orders”), be discharged.

   (2)That the spousal maintenance arrears arising from order (9) of the 1992 Family Court orders be discharged.

   (3)That a copy of this order be served upon Inland Revenue with respect to spousal maintenance payable for the benefit of the respondent wife.

   (4)That the respondent wife pay the applicant husband's costs.

2. These proposed orders were further amended by a minute of order directed to be filed by the applicant after the conclusion of the hearing and oral submissions.  The minute of order, filed on 11 December 2009, is to the following effect:‑

   (1)Any arrears of spousal maintenance payable pursuant to the Court order of 4 March 1992 and accrued from 4 March 1992 up to and including the 4 February 2009 (inclusive) be and are hereby discharged.

   (2)The rate of spousal maintenance payable…