Hacherl & Berrios - [2010] FMCAfam 668

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 20^th March 2006 to the termination of eligibility be varied by setting the annual rate…

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 Hacherl & Berrios

Details

AGLC: Hacherl & Berrios [2010] FMCAfam 668
Case: [2010] FMCAfam 668
Decision Date: 30 June 2010

CaseChat Overview and Summary

Hacherl and Berrios appeared before the Supreme Court of Tasmania, with the former seeking dismissal of an enforcement summons issued by the latter. The summons related to unpaid child support. The application to dismiss sought to avoid the enforcement of the summons on the basis of procedural irregularities. The court needed to determine if the summons was issued and served correctly, and if the enforcement action was justified.

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

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.

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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