Ade23 v Adg23 (No 2) - [2023] FedCFamC2G 1121

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…

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 Ade23 v Adg23 (No 2)

Details

AGLC: Ade23 v Adg23 (No 2) [2023] FedCFamC2G 1121
Case: [2023] FedCFamC2G 1121
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of Ade23 v Adg23 (No 2) involved the Child Support Registrar, as the applicant, and Ade23, as the respondent, in a dispute over child support costs. The matter came before the Federal Circuit and Family Court of Australia (Division 2), which was tasked with determining whether a cost order should be made against the respondent and, if so, the amount of costs payable to the applicant. The Registrar was seeking costs in respect of the failed appeal that Ade23 had lodged against a decision of the Administrative Appeals Tribunal.

The court needed to decide if it had the jurisdiction to award costs in this appeal, considering the specific provisions of the Federal Circuit and Family Court of Australia Act 2021. It was also necessary to determine whether the principles of costs following the event applied and to what extent, given that the Child Support Registrar is funded by the public purse. The court had to consider the adequacy of the Notice of Appeal filed by the respondent, the respondent's failure to address inadequacies despite being given the opportunity to do so, and whether the respondent had provided a sufficient explanation for his inability to meet the costs order.

The court concluded that it had the jurisdiction to award costs pursuant to section 214(2) of the Federal Circuit and Family Court of Australia Act 2021, as the appeal was not a proceeding commenced under child support legislation but rather a proceeding brought under the Administrative Appeals Tribunal Act 1975. The court found that the respondent's actions, including filing an inadequate Notice of Appeal and failing to address the inadequacies or discontinue the appeal, warranted a costs order. The respondent's failure to provide an adequate explanation for his financial situation further supported the decision. The court ordered that the respondent pay to the applicant the sum of $5,500 for costs incurred due to the failed appeal.

The court ordered that the respondent pay to the applicant the sum of $5,500 within sixty days from the date of the order. This amount was less than the scale amount provided for in the relevant court rules. The respondent did not contest the amount of costs sought by the applicant. All other outstanding applications were dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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

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