FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACHERL & BERRIOS | [2010] FMCAfam 668 |
| CHILD SUPPORT – Father seeks variation to assessed child support – grandmother as carer for the child – some payable for a period more than 18 months prior to filing application – Court’s leave required – tax returns not lodged – “clean hands” – father’s earning capacity. |
| Child Support (Assessment) Act 1989 (Cth) ss.111, 112, 117, 118 |
| Gilmour and Gilmour (1995) FLC 92-591 Liesert v Nutsch (1996) FLC 92-665 Bryant and Bryant (1996) FLC 92-690 Savery and Savery (1990) FLC 92-131 Gyselman and Gyselman (1992) FLC 92-279 Bauer & Becker (2009) FLC 98-042 Cawthorn v Cawthorn (1998) FLC 92-805 |
| Applicant: | MR HACHERL |
| Respondent: | MS BERRIOS |
| File Number: | HBC1199 of 2008 |
| Judgment of: | Roberts FM |
| Hearing date: | 29 March 2010 |
| Date of Last Submission: | 29 March 2010 |
| Delivered at: | Launceston |
| Delivered on: | 30 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Bishop |
| Solicitors for the Applicant: | Bishops |
| Counsel for the Respondent: | Mr P Briffa |
| Solicitors for the Respondent: | Legal Aid Commission of Tasmania |
ORDERS
That the Application filed 17 February 2009 by MR HACHERL is dismissed.
That the Enforcement Summons issued 24 November 2008 is listed for mention in Launceston on Thursday 5 August 2010 at 2.15 p.m. with leave granted to the legal representative of the Child Support Registrar to appear by telephone.
IT IS NOTED that publication of this judgment under the pseudonym Hacherl & Berrios is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBC1199 of 2008
| MR HACHERL |
Applicant
And
| MS BERRIOS |
Respondent
REASONS FOR JUDGMENT
The issues
The applicant is MR HACHERL (“the father”) and the respondent is MS BERRIOS (“the grandmother”).
The dispute between the parties is whether or not there should be any variation of the child support that the father was assessed to pay for his daughter, [X] during the period between 20 March 2006 and
[date omitted] 2009 (“the relevant period”). [X] turned eighteen on [date omitted] 2009 and is now an adult, but she was legally a child throughout the relevant period, so I shall refer to her as “the child” for convenience.
The father is applying to have the applicable child support assessments retrospectively varied so that he would only be liable to pay $5,708 per annum throughout the relevant period. However, the father needs the Court’s leave to seek a variation of any child support that was payable more than 18 months prior to the date on which he filed his application.[1]
[1] See sub-section 118(2B) and sections 111 and 112 of the Child Support (Assessment) Act 1989
The Orders sought by the father in his Application filed 17 February 2009 were as follows:
1. THAT the periodic rate of child support payable by Mr Hacherl for [X] born [in] 1991 to Ms H in respect of all periods between the 20th March 2006 to the termination of eligibility be varied by setting the annual rate…
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- AGLC
- Hacherl & Berrios [2010] FMCAfam 668
- Case
- [2010] FMCAfam 668
- Decision Date
CaseChat Overview and Summary
The court examined the procedural steps taken to issue and serve the enforcement summons, considering whether it complied with relevant legislative provisions. It was established that the summons was issued correctly and served in accordance with the applicable laws. The court also considered whether there were any substantive grounds for setting aside the enforcement action, such as disputes over the child support amount or the identity of the obligor. The court found no substantive issues that would warrant dismissal of the summons.
Given that the summons was correctly issued and served, and no substantive grounds for setting aside the enforcement action were present, the court dismissed the application to set aside the summons. The court did, however, list the enforcement summons for further mention to allow the parties to address any remaining issues before enforcement proceeded. The court ordered that the summons be mentioned on a specified date, allowing the Child Support Registrar's legal representative to appear by telephone.
Orders
Orders of the court
1.
That the Application filed 17 February 2009 by MR HACHERL is dismissed.
2.
That the Enforcement Summons issued 24 November 2008 is listed for mention in Launceston on Thursday 5 August 2010 at 2.15 p.m. with leave granted to the legal representative of the Child Support Registrar to appear by telephone.
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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