Hooch and Hooch - [2011] FMCAfam 588

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOOCH & HOOCH

[2011] FMCAfam 588

FAMILY LAW – Financial – enforcement of child maintenance and child support arrears – summary dismissal– father now resident in Vanuatu.

Child Support (Assessment) Act 1989
Family Law Act 1975, s.66C
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001, reg.13.10

General Steel Industries Incorporated v Commissioner for Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125

Applicant:

MS HOOCH

Respondent:

MR HOOCH

File Number:

NCC 1736 of 2007

Judgment of:

Monahan FM

Hearing date:

19 May 2011

Date of Last Submission:

19 May 2011

Delivered at:

Sydney

Delivered on:

3 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Penmans Solicitors

Counsel for the Respondent:

Mr Johnston

Solicitors for the Respondent:

Conditsis & Associates

ORDERS

The Respondent’s application for summary dismissal of the Applicant’s Initiating Application be dismissed.
Costs be reserved.
All extant applications be adjourned to this Court on 31 August 2011 at 9:30am for mention (“the mention hearing”).
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Sydney Registry on 18 July 2011 at 9:30am AND the solicitors for each party send to the other and the Registrar at least seven (7) days before the Conciliation Conference copies of:
(a)a completed Conciliation Conference document (as appropriate for a child maintenance dispute);
(b)the actual terms of orders required to give effect to their settlement proposal;
(c)if applicable, a copy of any apprehended violence order or restraining order that is currently in force; and
(d)a written confirmation by each party or their solicitor that all relevant documents have been exchanged between the parties
AND IN THE EVENT that the matter does not settle at the Conciliation Conference, further directions be given at the mention hearing and, in addition, where a party has not complied with subparagraphs (a) to (d) herein the Court may consider submissions with respect to costs.
The Respondent be granted leave to appear by telephone at the Conciliation Conference, provided that he is legally represented.
The parties be excused from appearing at the mention hearing, provided that they are legally represented

AND THE COURT NOTES THAT:

(A)The purpose of the mention hearing is to consider further directions in the event that the parties remain in dispute following the Conciliation Conference.

IT IS NOTED that publication of this judgment under the pseudonym Hooch & Hooch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

NCC 1736 of 2007

MS HOOCH

Applicant

And

MR HOOCH

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive proceedings in this matter relate to the initiating application filed on 16 November 2010 by MS HOOCH (“the mother”) against MR HOOCH (“the father”).
The mother seeks various child maintenance orders in relation to the child of their relationship, [X], born [in] 1997 (“[X]”) in her application. More specifically, the mother seeks the following orders:
·that…

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 Hooch and Hooch

Details

AGLC: Hooch and Hooch [2011] FMCAfam 588
Case: [2011] FMCAfam 588
Decision Date: 3 June 2011

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Hooch and Hooch was heard. The Applicant, Hooch, brought proceedings against the Respondent, Hooch, in relation to child maintenance. The Respondent sought summary dismissal of the Applicant's claim, which the court had to consider.

The court's task was to determine whether the Applicant's claim was so deficient that it warranted summary dismissal. The court also had to consider the appropriate procedural steps to manage the case moving forward. This involved balancing the need for efficient case management with the rights of the parties to have their claims fully heard and determined.

The court found that the Applicant's claim was not so deficient as to warrant summary dismissal. It held that the matter should proceed to a Conciliation Conference to explore the possibility of settlement. If the parties were unable to reach an agreement at the Conciliation Conference, further directions would be given at the mention hearing. The court emphasised the importance of the parties attempting to resolve their dispute through alternative dispute resolution methods before proceeding to a final hearing. The court also granted the Respondent leave to appear by telephone at the Conciliation Conference and excused the parties from appearing at the mention hearing if legally represented.

The court made orders dismissing the Respondent's application for summary dismissal, reserving costs, and setting out detailed procedural steps for the Conciliation Conference and the mention hearing. The court noted that the purpose of the mention hearing was to provide further directions if the parties remained in dispute following the Conciliation Conference.

Orders

Orders of the court

The Respondent’s application for summary dismissal of the Applicant’s Initiating Application be dismissed.

Costs be reserved.

All extant applications be adjourned to this Court on 31 August 2011 at 9:30am for mention (“the mention hearing”).

The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Sydney Registry on 18 July 2011 at 9:30am AND the solicitors for each party send to the other and the Registrar at least seven (7) days before the Conciliation Conference copies of:

(a) a completed Conciliation Conference document (as appropriate for a child maintenance dispute);

(b) the actual terms of orders required to give effect to their settlement proposal;

(d) a written confirmation by each party or their solicitor that all relevant documents have been exchanged between the parties

AND IN THE EVENT that the matter does not settle at the Conciliation Conference, further directions be given at the mention hearing and, in addition, where a party has not complied with subparagraphs (a) to (d) herein the Court may consider submissions with respect to costs.

The Respondent be granted leave to appear by telephone at the Conciliation Conference, provided that he is legally represented.

The parties be excused from appearing at the mention hearing, provided that they are legally represented

AND THE COURT NOTES THAT:

(A) The purpose of the mention hearing is to consider further directions in the event that the parties remain in dispute following the Conciliation Conference.

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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