Henricksen & Janz (No.3)

Case [2008] FMCAfam 1343


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

  1. 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.

  2. 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

    .

  3. 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

  1. 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…

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

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

1.

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

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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