Ade23 v Adg23 (No 2)
[2023] FedCFamC2G 1121
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADE23 v ADG23 (No 2) [2023] FedCFamC2G 1121
File number: BRG 21 of 2023 Judgment of: JUDGE L. TURNER Date of judgment: 30 November 2023 Catchwords: CHILD SUPPORT – Costs - where the appeal was dismissed - where the Child Support Registrar is seeking costs in respect to the failed appeal - held that the respondent pay to the Child Support Registrar costs in the sum of $5,500 Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021, s 214
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Schedule 2, Part 1
Cases cited: Paxton & Child Support Registrar (Costs) [2016] FamCAFC 158
Richards v Han (Costs) [2023] FCA 211
Ritter v Godfrey [1918-19] All ER Rep 714
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission: 26 October 2023 Date of hearing: 29 September 2023 Place: Brisbane Solicitor for the Applicant: Sparke Helmore Respondent: No appearance by the Respondent ORDERS
BRG 21 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHILD SUPPORT REGISTRAR
Applicant
AND: ADE23
Respondent
ORDER MADE BY:
JUDGE L. TURNER
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Within sixty (60) days from the date hereof the respondent pay to the applicant as directed by the applicant the sum of $5,500 for costs thrown away as a result of the Notice of Appeal filed on 16 January 2023 which was subsequently dismissed on 29 September 2023.
2.Otherwise all outstanding applications are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).REASONS FOR JUDGMENT
INTRODUCTION
On 29 September 2023, orders were made for the Notice of Appeal filed by the respondent on 16 January 2023 to be dismissed.
Directions were made for the filing of submissions as to costs incurred by the applicant (Child Support Registrar) and the Administrative Appeals Tribunal.
The Administrative Appeals Tribunal did not file any submissions in accordance with the directions.
The applicant however did comply and is seeking a costs order against the respondent.
PROPOSALS
The applicant is seeking the sum of $5,500 for costs thrown away in respect to the failed appeal by the respondent.
The respondent opposes a costs order on the basis that such an order would cause financial hardship.
ISSUE
The issues for determination are whether a cost order should be made against the respondent and if so the amount of costs payable to the applicant.
EVIDENCE
In considering this issue regard has been had to the written submissions of the parties and the relevant jurisdiction.
Cross-examination did not occur.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Before considering the issues, regard must be had to the law.
THE LAW
Section 214(2) Federal Circuit and Family Court of Australia Act 2021 and empowers the court to award costs in any proceedings brought before the court, except for those matters that are specifically excluded pursuant to section 214 (1).
Whilst section 214(1) states that section 214(2) does not apply to child support proceedings, an appeal to the court from the Administrative Appeals Tribunal, I find, is not a court proceeding commenced under any child support legislation, but a proceeding brought pursuant to the Administrative Appeals Tribunal Act 1975.
Therefore, the court has jurisdiction to make a costs order in respect to appeal proceedings pursuant to section 214 (2).
ARE COSTS PAYABLE BY THE RESPONDENT TO THE APPLICANT?
It is a well-established rule that in civil matters costs follow the event as discussed in Ritter v Godfrey [1918-19] All ER Rep 714 at 721 and Richards v Han (Costs) [2023] FCA 211 at [9].
It is further a well-established principle, as articulated by the Full Court in Paxton & Child Support Registrar (Costs) [2016] FamCAFC 158 at [29] that the Child Support Registrar:
Funded… by the public purse, ought not to have to bear the costs of reasonably defending (their) position against an unreasonable attack
I find having considered the evidence in this matter that it is appropriate for a costs order to be made against the respondent in favour of the applicant.
I make this finding based on the following:
(a)The respondent filed an inadequate Notice of Appeal.
(b)The respondent was given an opportunity to file an Amended Notice of Appeal to address these inadequacies but chose not to.
(c)The respondent had the opportunity to discontinue the appeal prior to the final hearing date but chose not to.
(d)The appeal was unsuccessful and subsequently dismissed.
(e)Therefore, the respondent was wholly unsuccessful in the appeal process.
(f)The respondent has failed to provide an adequate explanation as to why his financial situation is such that he is unable to meet a costs order.
WHAT IS THE AMOUNT OF COSTS PAYABLE BY THE RESPONDENT TO THE APPLICANT?
The applicant is seeking fixed costs in the sum of $5,500 which is less than the scale amount as provided for in Schedule 2, Part 1 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
The respondent does not contest, in his written submissions, the amount of costs being sought by the applicant.
Therefore, I order that the respondent pay to the applicant the sum of $5,500 by way of costs thrown away in respect to the respondent’s failed appeal.
Given the time of year with Christmas approaching I allowed the respondent sixty (60) days to make payment of the costs to the applicant.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turner. Associate:
Dated: 30 November 2023
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