Hooch and Hooch (No.2) - [2012] FMCAfam 1233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOOCH & HOOCH (NO.2)

[2012] FMCAfam 1233

FAMILY LAW – Child maintenance – 15 year old child – earning capacity – education expenses – orthodontic expenses – discount for lump sum payment – adult child maintenance also sought – father resides in Vanuatu.

Family Law Act 1975, ss.66B, 66C, 66E, 66F, 66G, 66H, 66J, 66K, 66L, 66P, 66R, 69E
Child Support (Assessment) Act 1989, ss.3, 151B

Bereat & Bereat [2010] FamCA 693
Brown & Brown [2007] FamCA 151; (2007) 37 Fam LR 59; [2007] FLC 93-316
Charlton & Crosby [2010] FMCAfam 207
Cosgrove v Cosgrove (No. 2) (1996) 20 Fam LR 761
DJM v JLM (1998) 23 Fam LR 396; (1998) FLC 92-816
Hooch & Hooch [2011] FMCAfam 588
In the Marriage of Bendeich (1992) 110 FLR 418
In the Marriage of Tuck (1979) 7 Fam LR 492
In the Marriage of Vartikian (1984) 10 Fam LR 165
RNL & RHB [2005] FMCAfam 520
S & S [2005] FMCAfam 78
Spano v Spano (1979) 5 Fam LR 506; [1979] FLC 90-707
Todorovic v Waller (1981) 150 CLR 482
W & H [2004] FMCAfam 67

Applicant:

MS HOOCH

Respondent:

MR HOOCH

File Number:

NCC 1736 of 2007

Judgment of:

Monahan FM

Hearing dates:

7 & 8 June 2012

Date of Last Submission:

8 June 2012

Delivered at:

Sydney

Delivered on:

4 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Penmans Solicitors

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:

Self-represented Litigant

ORDERS

The Respondent (“the father”) pay child maintenance to the Applicant (“the mother”) in the sum of $1,898.34 per month in respect of the child [X], born [in] 1997, (“[X]”), with the first payment taken to have fallen due on 1 December 2010 and each monthly payment thereafter to fall due on the first day of each month until 31 December 2015.
By not later than 2 January 2013, the father pay to the mother the sum of $49,356.84, covering the period from 1 December 2010 to 31 January 2013, less any monies paid by the father to the mother following the final hearing, as well as any other child maintenance amounts paid by him to the mother in the period following 1 December 2010.
The maintenance to be paid pursuant to order 1 be varied on 1 January in each year (the “review date”) commencing on 1 January 2014, to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where:
(a)‘B’ is the Consumer Price Index for Brisbane (All Groups) published by the Australian Bureau of Statistics (‘CPI’) in respect of the quarter year ended on the date 12 months prior to the review date (that is, 31 December); and
(b)‘N’ is the CPI in respect of the quarter year ending on the day immediately preceding the review date.
Paragraph three (3) herein is without prejudice to the right of the mother in…

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 (No.2)

Details

AGLC: HOOCH & HOOCH (NO.2) [2012] FMCAfam 1233
Case: [2012] FMCAfam 1233
Decision Date: 4 December 2012

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Hooch and Hooch (No.2) involved a dispute between the parents of a child born in 1997, concerning child maintenance and related expenses. The mother sought ongoing child maintenance payments from the father, as well as reimbursement for past unpaid maintenance and a lump sum payment option. She also sought an order for the father to contribute to the child's orthodontic expenses.

The court was required to determine the appropriate amount of child maintenance the father should pay, the method of payment, whether the child's orthodontic expenses should be shared, and whether the father should pay a lump sum in lieu of regular payments. Additionally, the court needed to decide on the variation of the maintenance payments over time, considering inflation, and whether any costs should be awarded.

The court held that the father should pay the child maintenance at a rate of $1,898.34 per month, with the first payment due on 1 December 2010. The amount was to be reviewed annually based on the Consumer Price Index. The father was also required to pay a lump sum of $63,119.81 by 1 February 2013, or continue with the monthly payments until 31 December 2015. Furthermore, the father was to contribute 67% of any orthodontic expenses incurred for the child until they turned 18. The court dismissed all other applications and noted that the lump sum represented a 5% discount on the base amount for capitalisation and the father's goodwill in paying upfront.

Orders

Orders of the court

The Respondent (“the father”) pay child maintenance to the Applicant (“the mother”) in the sum of $1,898.34 per month in respect of the child [X], born [in] 1997, (“[X]”), with the first payment taken to have fallen due on 1 December 2010 and each monthly payment thereafter to fall due on the first day of each month until 31 December 2015.

By not later than 2 January 2013, the father pay to the mother the sum of $49,356.84, covering the period from 1 December 2010 to 31 January 2013, less any monies paid by the father to the mother following the final hearing, as well as any other child maintenance amounts paid by him to the mother in the period following 1 December 2010.

The maintenance to be paid pursuant to order 1 be varied on 1 January in each year (the “review date”) commencing on 1 January 2014, to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where:

(a) ‘B’ is the Consumer Price Index for Brisbane (All Groups) published by the Australian Bureau of Statistics (‘CPI’) in respect of the quarter year ended on the date 12 months prior to the review date (that is, 31 December); and

(b) ‘N’ is the CPI in respect of the quarter year ending on the day immediately preceding the review date.

Paragraph three (3) herein is without prejudice to the right of the mother in the year to make such application as she considers appropriate for any other variation of the maintenance which she may claim to be appropriate by reason of her then prevailing financial circumstances.

In the event that the father elects to pay child maintenance to the mother for the period from 1 February 2013 to 31 December 2015 (inclusive) in a lump sum, then by not later than 1 February 2013, the father pay to the mother the sum of $63,119.81.

In addition to the monthly or lump sum, the father pay to the mother an amount equivalent to 67% of any orthodontic expenses incurred on and from today’s date with respect to [X] until the child attains the age of 18 years, with such payment(s) to be made within 14 days after the father receives a copy of any statement of account outlining the relevant orthodontic expenses.

Any Application for costs in this matter be filed and served within the next 42 days.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) The lump sum referred to in paragraph five (5) herein represents a base amount of $66,441.90, less a discount of 5% on account of capitalisation and in recognition of the father’s goodwill in paying the lump sum upfront rather than by way of periodic payments.

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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