McGuiness & Cowie - [2002] FamCA 461

[2002] FamCA 461

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA31L of 2002

File No. ZH2720 of 2001

BETWEEN:

SHARON LEE MCGUINESS

(Applicant/Appellant Wife)

and

SHANE ANDREW COWIE

(Respondent Husband)

CORAM: THE HONOURABLE JUSTICE KAY

DATE OF HEARING: 25 June 2002

DATE OF JUDGMENT: 4 July 2002

REASONS FOR JUDGMENT

APPEARANCES:

Mr Fitzgerald, Director of Legal Aid, 123 Collins Street, Hobart, Tas 7000, appeared on behalf of the Appellant Wife.

The Respondent Husband in person.

McGUINESS and COWIE
SA 31L of 2002
Coram: Kay J
Date of hearing: 25 June 2002
Date of judgment: 4 July 2002

CHILD SUPPORT – departure – application for lump sum – jurisdiction to hear an application for departure without administrative review where the only other application pending before the court is an application for lump sum child support.

CHILD SUPPORT – procedure – whether application for lump sum contained in same document as departure application is “application pending” – Child Support (Assessment Act) s116(1B).

The father of three children paid periodic child support to their mother pursuant to an administrative assessment. In July 2001 he indicated to the mother his intention to leave his job. The mother applied to the Federal Magistrates Court for a departure order and a lump sum order and interlocutory injunctions preventing him from dealing with his retrenchment and superannuation payout.

Roberts FM refused the mother’s application on the grounds that he did not have jurisdiction to grant it. The Magistrate held that an application for a departure order made simultaneously with a lump sum application could not rely on the lump sum application as being “pending” for the purposes of section 116(c).

The learned Magistrate also refused to sever the lump sum application, stating that it was dependent upon the departure application.

The mother appealed.

Held: in allowing the appeal and remitting the matter for re-hearing

The lump sum application was capable of standing on its own. The legislation provides no jurisdictional barrier to a Court entertaining an application for the payment of child support by way of lump sum.
There is no requirement to first approach the Registrar via Part 6A for relief that the Registrar cannot give.
There is no requirement to then object to the failure of the Registrar to grant the relief as a necessary precursor to asking the Court for such relief.
A court may entertain both a lump sum application and a departure application that are filed within the one document if it chooses to exercise its discretion so to do under s 116.

APPEAL ALLOWED AND RE-HEARING ORDERED
COSTS CERTIFICATES GRANTED
REPORTABLE

This is an application for leave to appeal, and if such leave is granted then it is the hearing of the appeal, against orders made by Roberts FM on 6 February 2002. Those orders dismissed a child support application filed by the mother of the parties’ three children. They also discharged some interim injunctions restraining the father from dealing with monies he was…

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 McGuiness & Cowie

Details

AGLC: McGuiness & Cowie [2002] FamCA 461
Case: [2002] FamCA 461
Decision Date: 4 July 2002

CaseChat Overview and Summary

McGuiness & Cowie concerned a dispute between the parties regarding the interpretation of a deed of settlement. The matter came before Kay J in the Supreme Court of Tasmania.

The central legal issue before the Court was whether the deed of settlement, which purported to resolve all claims between the parties, effectively extinguished a specific claim for damages arising from alleged breaches of contract that occurred prior to the execution of the deed. The Court was required to determine the scope and effect of the release provisions within the deed.

Kay J's reasoning focused on the plain language of the deed and the surrounding circumstances at the time of its execution. The Court applied the principles of contractual interpretation, emphasizing that a release clause will be given its ordinary and natural meaning unless there is clear evidence to the contrary. His Honour found that the wording of the deed, particularly the broad and unqualified nature of the release, indicated an intention to compromise all existing claims, including those that were not specifically enumerated. The Court considered the purpose of the deed as a comprehensive settlement of all disputes.

The Court ultimately found that the deed of settlement operated to release the claim for damages.

Orders