Ahern and Ahern and Anor (SSAT Appeal) - [2013] FCCA 1072

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHERN & AHERN & ANOR (SSAT APPEAL)

[2013] FCCA 1072

Catchwords:
CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal – costs – where appellant successful – where costs not sought against First Respondent.
CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal – consequential orders.

Legislation:
Child Support (Registration and Collection) Act 1988 (Cth), ss.104, 105, 110B, 111C
Family Law Act 1975 (Cth), s.117

Ahern & Ahern & Anor (SSAT Appeal) [2013] FCCA 436
Ahern & Ahern & Anor (SSAT Appeal) [2012] FMCAfam 1299
Brown & Brown (1998) 23 Fam LR 349
Child Support Registrar & Kanavos [2010] FamCAFC 244; (2011) 44 Fam LR 422
Colan Products Pty Ltd v Luxon Pty Ltd (No 2) [2002] FMCA 90
Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225
CSR & MMB (SSAT Appeal) [2007] FMCAfam 944; (2007) 220 FLR 245
Fitzgerald & Fish [2005] FamCA 158; (2005) 33 Fam LR 123
Kindree & CSR (SSAT Appeal) [2010] FMCAfam357; (2010) FLC 98-052
Kohan & Kohan (1993) FLC 92-340
Penfold v Penfold (1980) 144 CLR 311
Piersons Pro-Health Pty ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250
Polec & Staker & Anor [2012] FMCAfam 19
Prantage & Prantage [2013] FamCAFC 105
Pratt v Latta (No 2) [2002] FMCA 43
Stark & Sherman & Anor (SSAT Appeal) [2013] FMCAfam 40

Applicant:

MR AHERN

First Respondent:

MS AHERN

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 5609 of 2012

Judgment of:

Judge Scarlett

Hearing date:

In Chambers

Date of Last Submission:

27 June 2013

Delivered at:

Sydney

Delivered on:

13 August 2013

REPRESENTATION

Counsel for the Applicant:

Ms Kaur-Bains

Solicitors for the Applicant:

Jackson Lalic Lawyers

The First Respondents:

No Orders for costs were sought by or against the First Respondent

Solicitors for the Second Respondents:

Australian Government Solicitors

ORDERS

The Second Respondent Child Support Registrar is to pay the Appellant’s costs fixed in the sum of $18,680.00.
I allow three (3) months to pay.
There will be no Order for costs in respect of the First Respondent.
The Orders made on 23 November 2012 are discharged.

IT IS NOTED that publication of this judgment under the pseudonym Ahern & Ahern & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5609 of 2012

MR AHERN

Applicant

And

MS AHERN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

The Appellant successfully appealed against a decision of the Social Security Appeals Tribunal made on 26 May 2012 and posted on 5 June 2012 (Ahern & Ahern & Anor (SSAT Appeal)[1]). The Appellant has now made a written submission addressing the following issues:
a)an application for costs in the sum of $55,009.08;
b)consequential orders flowing from the reasons for the Court’s decision on the Appeal.
[1] [2013] FCCA 436
No costs are sought against the First Respondent.
The…

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.

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Details

Case: [2013] FCCA 1072
Decision Date: 13 August 2013

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Social Security Appeals Tribunal. The parties involved were the Appellant, the First Respondent, and the Second Respondent Child Support Registrar. The core of the dispute revolved around child support arrears and the collection and enforcement of those arrears.

The court was required to determine the appropriate costs orders following the appeal. Specifically, it needed to consider whether to award costs to the Appellant against the Second Respondent Child Support Registrar, and in what amount, and whether to make any order for costs in respect of the First Respondent. The court also had to consider discharging previous orders made in relation to child support payments and the retention of funds by the Child Support Registrar.

In reaching its decision, the court applied the principles set out in section 117 of the *Family Law Act 1975* (Cth). This section establishes a general rule that each party bears their own costs, but allows the court to make such order as it considers just if there are circumstances justifying it, having regard to the matters set out in subsection 117(2A). The court found that the Appellant had wholly succeeded on the grounds of appeal that were pursued, as the court found no jurisdiction in relation to the Tribunal's decision for the period the Appellant sought to appeal.

The court ordered that the Second Respondent Child Support Registrar pay the Appellant's costs, fixed at $18,680.00, to be paid within three months. No order for costs was made in respect of the First Respondent. The orders made on 23 November 2012 were discharged.

Orders

Orders of the court

The Second Respondent Child Support Registrar is to pay the Appellant’s costs fixed in the sum of $18,680.00.

I allow three (3) months to pay.

There will be no Order for costs in respect of the First Respondent.

The Orders made on 23 November 2012 are discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On that date I made the following Orders until further Order:(1)The collection and enforcement of child support arrears accumulated up to and including the date of this Order payable by the Applicant to the First Respondent for the children[3]…is stayed.(2) The sum of $5000.00 held by the Child Support Registrar as a result of the operation of the Notice under section 72A of the Child Support (Registration and Collection) Act 1988 dated 8 October 2012 is to be retained by the Child Support Registrar until further Order of the Court.(3) The Applicant is to pay to the Child Support Registrar for payment out to the First Respondent on account of child support the sum of $150.00 per month the first payment to be made by 30 November 2012 and month and monthly thereafter.[4][3] The names and dates of birth of the children have not been published[4] Ahern & Ahern & Anor (SSAT Appeal) [2012] FMCAfam 1299 The Appeal itself was heard on 13 May 2013 and judgment was handed down on 11 June 2013. As directed by the Court, the Appellant and the Second Respondent filed written submissions in respect to costs and consequential orders. The Appellant also filed an affidavit by his solicitor, Mr F, sworn on 17 June 2013, setting out in paragraph 2 (a)-(h) his calculation of the amount of costs sought. The Appellant’s Submissions make it clear that the amount of $4,438.00 itemised in sub-paragraph 2(a) of Mr F’s affidavit is not claimed. The costs referred to there relate to the Appellant’s costs of commencing proceedings in the Federal Court and remitting those proceedings to the Federal Magistrates Court. The Appellant seeks the amounts itemised in the remaining sub-paragraphs, (b) to (h), amounting to $55,009.08. The Appellant refers to my decision in Stark & Sherman & Anor (SSAT Appeal)[5] where I set out at paragraphs [5] and [6] the relevant principles of law applicable to a costs application in respect of an appeal from the Social Security Appeals Tribunal. Those paragraphs say, relevantly:5. It is accepted by the parties that the law to be applied is section 117 of the Family Law Act. Subsection (1) sets out the general rule that each party to proceedings should pay their own costs. However, if the Court is of opinion that there are circumstances that justify it in doing so, the Court may make such order for costs as the Court considers just (see s.117(2)).6. In considering what order (if any) should be made, the Court must have regard to the matters set out in subsection 117(2A).[6][5] [2013] FMCAfam 40[6] [2013] FMCAfam 40 at [5]-[6] Counsel for the Appellant submits that the Appeal was successful because the Court[7] found that there was no jurisdiction in relation to the Tribunal’s decision for the period 1 July 2010 to 30 June 2013, which is the only period the Appellant sought to appeal. Consequently, there is no need to remit the matter to the Tribunal. Thus, it is submitted that the Appellant has wholly succeeded even though there were two other grounds upon which he did not succeed.[7] The submission incorrectly refers to “the Tribunal” but that is clearly a typographical error