Albaugh & Child Support Registrar (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALBAUGH & CHILD SUPPORT REGISTRAR (No.2) [2008] FMCAfam 851

CHILD SUPPORT – Unsuccessful child support departure prohibition application – costs order made.

Family Law Act 1975
Federal Magistrates Court Rules 2001

Applicant: MR ALBAUGH

Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 7376 of 2007

Judgment of: Sexton FM

Hearing date: 22 July 2008

Delivered at: Sydney

Delivered on: 13 August 2008

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: Australian Government Solicitors

THE COURT ORDERS THAT:

1. The Applicant father pay the costs of the Child Support Registrar in relation to his appeal from a Departure Prohibition Order in the sum of $4,160, such sum to be paid by the father to the solicitors for the Child Support Registrar within 3 calendar months of today’s date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 7376 of 2007

MR ALBAUGH

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for costs by the Child Support Registrar, the respondent in an appeal brought by the applicant father in relation to a Departure Prohibition Order. The appeal was heard on 11 December 2007 and judgment delivered on 13 December 2007. At the hearing of the appeal, the father sought to have the Departure Prohibition Order set aside. The appeal was dismissed. By agreement, the hearing of the respondent’s application for costs of the appeal was adjourned until after the hearing of the father’s application for departure from a number of child support agency assessments.  Those proceedings were finalised on 18 June 2008 by Federal Magistrate Baumann. The orders provide for the father to pay child support at a rate of $200 a month between 11 August 2006 and 11 August 2008, and from 11 August 2008 until 30 June 2009 at a rate of $350 a month.

2. The respondent seeks an order that the applicant pay its costs of the appeal in the sum of $4,160, calculated in accordance with Schedule 1 of the Federal Magistrates Court Rules. The applicant opposes the application.

3. Ms Hawkins, solicitor for the Child Support Registrar, submits that the applicant should pay the costs of the appeal because the applicant was wholly unsuccessful in the appeal, the applicant has the capacity to pay and because the father has ignored the Court orders of Federal Magistrate Baumann of 18 June 2008, and the father has made no effort to reduce his arrears of child support or to meet his child support obligations for a number of years.

Relevant Law

1. In accordance with s.117(1) of the Family Law Act 1975 the usual rule in family law proceedings is that each party pay his/her own costs. However, s.117(2) provides that the court may order costs if it is of the opinion that there are circumstances that justify it in doing so,…