Legal Research
Cases
Henricksen & Janz (No.3)

Henricksen & Janz (No.3)

Case [2008] FMCAfam 1343 12 December 2008

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HENRICKSEN & JANZ (No.3)

[2008] FMCAfam 1343

CHILD SUPPORT – Application to set aside binding child support agreement – meaning of exceptional circumstances – evidence required to be adduced.

FAMILY LAW – Application to summarily terminate application to set aside binding child support agreement – principles discussed.

Child Support Assessment Act 1989, ss.100, 136(2)(d), 136(4)(b)
Child Support (Registration and Collection) Act 1988, s.116(2)
Family Law Act 1975, s.117(1), (2), (2A)
Federal Magistrates Act, s.17A
Federal Magistrates Court Rules, r.13.10

Bigg & Suzi (1998) 22 Fam LR 700
Bryant & Bryant (1996) FLC 92-690
Barrett & Benningfield [2008] FMCAfam 754
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gyselman & Gyselman (1992) FLC 92-279
Henricksen & Janz (No. 2) [2008] FMCAfam 1081
Hides v Hatton (1997) FLC 92-759
Jacobs & Vale [2008] FMCAfam 641
Nikac & Ors v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65
Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No.2) [2008] FMCA 947
Pelerman v Pelerman (2000) 26 Fam LR 505
Re Glendon Lane Pty Ltd and Australian Fisheries Management Authority (1995) 36 ALD 376
Re O'May and Australian Fisheries Management Authority (1999) 57 ALD 181
Re Secretary, Department of Family and Community Services and Selke (1993) 31 ALD 770 ; 18 AAR 457
Re Secretary, Department of Family and Community Services and Tran (1991) 23 ALD 449 ; 13 AAR 346

Applicant:

MS HENRICKSEN

Respondent:

MR JANZ

File Number:

BRC 2587 of 2007

Judgment of:

Wilson FM

Hearing date:

5 December 2008

Date of Last Submission:

5 December 2008

Delivered at:

Brisbane

Delivered on:

12 December 2008

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Hirst & Company

Counsel for the Respondent:

Solicitors for the Respondent:

Mylne Lawyers

ORDERS

The husband’s application filed 14 October 2008 be dismissed pursuant to s.17A Federal Magistrates Act, and rule 13.10 Federal Magistrates Court Rules.
The husband pay to the wife within 28 days the sum of $40,124.78 pursuant to the binding and registered child support agreement

made between the parties dated 29 March 2006, and owing as at

28 November 2008
.
The husband pay the wife’s costs of and incidental to the wife’s applications filed 11 September 2008 and 28 November 2008, and the husband’s application filed 14 October 2008, to be taxed pursuant to Chapter 19 of the Family Law Rules on the party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Henricksen & Janz (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 2587 of 2007

MS HENRICKSEN

Applicant

And

MR JANZ

Respondent

REASONS FOR JUDGMENT

On 14 October 2008, the father filed an initiating application in this Court, by which he sought the following relief by way of final and interim orders:
Final…

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 Henricksen & Janz (No.3)

Details

AGLC: Henricksen & Janz (No.3) [2008] FMCAfam 1343
Case: [2008] FMCAfam 1343
Decision Date: 12 December 2008

CaseChat Overview and Summary

The case of Henricksen & Janz (No.3) involved a dispute between the husband and the wife regarding the setting aside of a binding child support agreement. The husband had applied to set aside the agreement, and the wife had applied to summarily terminate this application. The case was heard in the Family Court of Australia. The central issue before the court was the meaning of "exceptional circumstances" as outlined in the Family Law Act 1975, and what evidence was required to be adduced to establish these circumstances.

The court examined the legislative provisions and case law to determine the standard required to demonstrate "exceptional circumstances" under the Act. It was necessary to establish that the circumstances were truly extraordinary and that the agreement in question was unjust or unfair. The husband argued that changes in his financial situation constituted exceptional circumstances, but the court found that these changes, while significant, did not rise to the level of being exceptional in the legal sense. The court also considered the wife's application to summarily terminate the husband's application, assessing whether the husband's case was so lacking in merit that it should be dismissed without a full hearing.

The court concluded that the husband had not provided sufficient evidence to establish that the circumstances were truly exceptional, and thus dismissed his application to set aside the binding child support agreement. The wife's application to summarily terminate the husband's application was allowed, and the husband's application filed on 14 October 2008 was dismissed under section 17A of the Family Law Act 1975. The court's decision underscored the high threshold for demonstrating exceptional circumstances in child support matters and the importance of providing robust evidence to support such claims.

Orders

Orders of the court

The husband’s application filed 14 October 2008 be dismissed pursuant to s.17A

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Henricksen & Janz (No.3) [2008] FMCAfam 1343

Most Recent Citation

Gallup & Gallup [2009] FMCAfam 839

Cases citing this decision · 3 of 3 shown

Neville and Neville
[2010] FMCAfam 1162 Para 2

…ual or something other than commonplace. 51. In contrast, Federal Magistrate Wilson in Henricksen & Janz (No 3) [2008] FMCAfam 1343 at paragraph 32 found that there was, indeed a difference between the two: Further, even if the father demonstrated that the financial circumstances had changed, he has to show two additi…
Ackers and Ducley
[2010] FMCAfam 809 Para 5

…In contrast to the view expressed by Brown FM, in Henricksen & Janz (No.3) [2008] FMCAfam 1343 Wilson FM determined at paragraph [32] that there was indeed a difference between the two phrases: “32. Further, even if the father demonstrated that the financial circumstances had changed, he has to show two additional mat…
Gallup & Gallup
[2009] FMCAfam 839 Para 11

…In contrast, Federal Magistrate Wilson in Henricksen & Janz (No.3) [2008] FMCAfam 1343 at paragraph 32 found that there was, indeed a difference between the two: Further, even if the father demonstrated that the financial circumstances had changed, he has to show two additional matters to enliven the discretion in s.1…

View all 3 citing cases →

Cases cited in this decision · 8 of 8 shown

Henricksen and Janz (No.2)
[2008] FMCAfam 1081 Para 20

…In Henricksen & Janz (No.2) [2008] FMCAfam 1081 I discussed the principles attendant on the awarding of costs in general and indemnity costs in particular. I have had regard to the matters in s.117(2A) of the Act, particularly that the father has been wholly unsuccessful in his application, and in his resistance to th…
Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No.2)
[2008] FMCA 947 Para 13

…the court should exercise its jurisdiction to summarily dismiss a proceeding. In Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No. 2) [2008] FMCA 947 I expressed the view that the legislation and rules now embraces a test that allows the court considerably more scope in all proceedings than the ‘tr…
Jacobs & Vale
[2008] FMCAfam 641 Para 12

…However, in Jacobs & Vale [2008] FMCAfam 641 at [13] Jarrett FM observed, correctly in my opinion, that the power conferred on this Court pursuant to the section and rule to which I have already referred, is much wider than that considered in Bigg and Pelerman . The power of summary dismissal there conferred extends…
BARRETT & BENNINGFIELD
[2008] FMCAfam 754 Para 17

…The solicitor for the mother relied on the decision of Jarrett FM in Barrett & Benningfield [2008] FMCAfam 754 at 58 where his Honour said: “Mr Benningfield does not demonstrate a significant change in his financial situation since the time the child support agreement was made. To do so requires a demonstration of hi…
Pelerman v Pelerman
[2000] FamCA 881 Para 11

…In Pelerman v Pelerman (2000) 26 Fam LR 505 the Full Court of the Family Court considered that the power of summary dismissal would be rarely and sparingly used. To the same effect is the decision of that Court in Bigg & Suzi (1998) 22 Fam LR 700.…
Nikac v Minister for Immigration, Local Government and Ethnic Affairs
[1988] FCA 400 Para 5

…nal rather than any useful generic guidelines being offered. Indeed as Wilcox J said in Nikac & Ors v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 at 81: “ Like beauty, “exceptional circumstances” lies in eye of the beholder .”…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 13

…test’ in cases such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 13

…t allows the court considerably more scope in all proceedings than the ‘traditional test’ in cases such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.…

Legislation cited in this decision · 6

Child Support (Assessment) Act 1989 (Cth)
100, 136(2)(d), 136(4)(b) 4 mentions (from Para 1)
Child Support (Registration and Collection) Act 1988 (Cth)
116(2) 2 mentions (from Para 12)
Family Law Act 1975 (Cth)
117(1) 2 mentions (from Para 18)
Child Support (Assessment) Act 1999 (Cth)
1 mention (from Para 16)
Federal Magistrates Act 1999 (Cth)
1 mention (from Para 10)
Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 2)