Albaugh & Child Support Registrar (No.2)
[2008] FMCAfam 851
•13 August 2008
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:
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
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.
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.
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
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, subject to s.117(2A).
When the court is considering what order should be made the court must have regard to the matters referred to in s.117(2A) subsections (a) to (g):
a)the financial circumstances of each party;
b)whether any party is in receipt of assistance by way of legal aid;
c)the conduct of the parties;
d)whether the proceedings were necessitated by a failure of a party to comply with a previous court order;
e)whether a party to the proceedings has been wholly unsuccessful;
f)whether a party has made an offer in writing to the other party to settle the proceedings and the terms of any such offer; and
g)any other relevant matter.
As previously noted, the Child Support Registrar relies on sub-sections (a), (e) and (g) of s.117(2A) of the Act.
(a) Financial circumstances of each party
The Child Support Registrar is a Federal Government Agency funded by the taxpayers of Australia.
The applicant father says the amount the Agency asks him to pay in child support “is outrageous”. The father gave oral evidence as to his financial position and was cross-examined by the solicitor for the Child Support Registrar, Ms Hawkins. The father tendered a number of documents to support his submission that he has no capacity to meet a costs order.
The applicant father is a self-employed barrister and a registered migration agent with an office in [omitted] Street, Sydney. He lives in a home he owns, subject to mortgage, at [Property W]. According to his Financial Statement sworn 21 April 2008[1], he earns a gross weekly income of $2,000. He deposes to expenses of $2,743 a week comprising:
[1] Exhibit 1
| Mortgage | $650 |
| Rates and unit levies | $150 |
| Car registration | $192 |
| GE commercial hire purchase | $2660 |
| Minimum credit card payment | $70 |
The father includes a sum of $130,000 in his list of weekly expenses related to a Statesman and Caprice motor vehicle. He includes a figure of $2,660 as a commercial hire purchase weekly expense to GE Money. The figures as deposed do not add up to $2,743 a week. The father tenders an NRMA comprehensive insurance certificate [2] which states his comprehensive insurance premium for the Holden Statesman is $131.91 monthly or $30.44 a week. It is unclear how the figure of $192 for registration is calculated. He deposes to paying $500 a week towards expenses for his parents and $1,000 a week for “five other siblings”, all of whom live in Nigeria. At Part N of the Financial Statement, he deposes to day to day expenses of $879 a week which are not included at Item 32 of his Financial Statement.
[2] Exhibit 3
In his Financial Statement sworn in August 2007[3], the father deposed to the following weekly expenses:
[3] Exhibit 9
| CBA for mortgage | $537 |
| Rates and levies | $26 |
| Car insurances | $84 |
| Registration fees for one vehicle | $28 |
| Hire purchase/lease fees | $792 |
| Loan repayment for 3 hire care number plates | $475 |
| Child support payments | $28 |
He deposed to paying his parents $500 a month, and 5 of his siblings $500 a month. I am satisfied from the evidence presented by the Child Support Registrar in the Departure Prohibition Order appeal, that the father was not paying $28 a week in child support in August 2007, nor any other amount.
I do not accept the father’s weekly expenses as deposed to in his April 2008 Financial Statement as they do not form a consistent or coherent picture, and I am therefore unable to identify what his actual weekly expenses are. I am not assisted by referring to the expenses set out in his Financial Statement sworn in August 2007, as there are significant inconsistencies between the list in that Statement and the list in the April 2008 Statement.
In relation to assets, in his Financial Statement sworn in April 2008[4], the father deposes to being the sole registered owner on the title of the property in which he lives at [Property W], New South Wales. Yet he deposes to having a 5% share in the property, and to the value of his share being $400,000. He deposes to a loan secured by way of mortgage on the [W] property with a balance of $18,000, and states that his interest in the loan is 5%. Yet he names himself as the only borrower. In his Financial Statement sworn on 23 August 2007[5], the father deposed to owning a 10% share in the [W] property with a value of $35,000. He deposed to a balance on his mortgage loan account of “320000”, but it is not clear where the comma lies. He deposed to owning 100% of that loan. On the basis of this contradictory and confusing evidence I am unable to make a finding as to the nature of the father’s interest in the property at [W] or as to its value or as to the current balance of the loan secured on the property.
[4] Exhibit 1
[5] Exhibit 9
In his Financial Statement sworn in April 2008, the father says he owns 3 vehicles: a 2006 Holden Statesman with a value of $60,000, a 2007 Holden Caprice with a value of $73,000 and a 1998 BMW with a value of $10,000. He says his business, [omitted] Enterprises, has a value of $20,000. He deposes to two hire car operations with a total value of $5,600. In his Financial Statement sworn in August 2007[6], the father deposed to owning 3 motor vehicles but does not give values for the vehicles. He deposed to the value of [omitted] Enterprises at $5,000. He does not refer to the hire car operations. In oral evidence, the father says as at the time of swearing his Financial Statement in April 2008, he owned 4 motor vehicles: a BMW, a Statesman, a Caprice and a Ford Fairlane. He provides no explanation as to why the Ford Fairlane was omitted from the Statement.
[6] Exhibit 9
In relation to liabilities, according to his April 2008 Financial Statement, he owes $18,000 on a mortgage loan, two amounts of $21,788 and $22,719 to the Taxation Commissioner, $411,000 to
GE Money, $12,000 on credit cards and $73,000 and $65,000 to GE Money by way of hire purchase/lease. He says the total of his liabilities is therefore $650,000 (on these figures it should be $623,507). In his Financial Statement sworn in August 2007[7], he deposed to a loan of “$320000” (as noted earlier), debts of $91,711 and $64,197 to the Taxation Commissioner, $11,000 on a credit card, $75,000 to GE Money for the Caprice and $65,000 for the Statesman. He deposed to a further $45,000 liability for “car loan” and a $9,000 costs order.
[7] Exhibit 9
In oral evidence, the father says his liabilities all relate to running his businesses and that he has no personal liabilities. It is difficult to reconcile this assertion with the liabilities listed in his Financial Statements.
In oral evidence, the father says he is currently involved in bankruptcy proceedings initiated by the Council of the NSW Bar Association. Exhibit 2 is a copy of the creditor’s petition which states the father owes the Bar Association $17,658.28 as a result of failing to pay a judgment debt from September 2007 until February 2008. The petition states that the matter is listed for hearing on 26 June 2008. The father adduces no evidence as to what occurred on that day. He tenders a Final Demand in relation to a Telstra debt of $404.58[8]. He tenders a copy of a Judgment Debt dated 16 July 2008 in relation to GMAC Australia in the sum of $15,567.10 with interest accruing at 9.35% per annum[9]. He tenders a letter dated 15 July 2008 from Ascot Premium Finance in relation to non-payment of an instalment on his insurance premium of $901.73[10]. He tenders a letter from the Civil Claims Division of the Downing Centre dated 15 July 2008 in relation to a claim by Macquarie Leasing Pty Ltd advising the proceedings are listed on 8 August 2008[11]. He tenders a letter dated 1 July 2008 from the Legal Aid Commission advising the father he owes the sum of $3,052.11 in costs to the Legal Aid Commission and interest is accruing at the rate of 11.75% per annum[12]. The father tenders his Notices of Assessment from the Taxation Office for the years ending June 2004, June 2005 and June 2006[13] which do not assist me to make findings as to his current financial position. In oral evidence, the father says he has not yet completed his 2008 taxation return but expects a tax refund of between $7,000 and $17,000.
[8] Exhibit 4
[9] Exhibit 5
[10] Exhibit 6
[11] Exhibit 7
[12] Exhibit 8
[13] Exhibit 9
On the contradictory and confusing nature of the financial evidence before me, I find myself unable to make findings as to the father’s financial position with any degree of accuracy. I therefore have no regard to the father’s financial position in relation to these costs proceedings. The father has either been extremely careless in completing the Financial Statements or has no regard for the importance of providing accurate and truthful evidence. I find either explanation of particular concern given the father is a practising barrister in New South Wales.
(e) The applicant was wholly unsuccessful
The applicant’s appeal against the Departure Prohibition Order was dismissed. The applicant was therefore wholly unsuccessful in those proceedings.
(g) Any other relevant matter
The father does not dispute the respondent’s submission that he has not made any child support payments in accordance with child support agency assessments dating back to 6 May 2003, with the exception of two taxation refunds which the Agency intercepted in mid 2006, one of $167.99 and one of $22.42. The father does not dispute that between
15 September 2005and 1 August 2006, when his liability for child support was $22.42 a month, he made no payments. The father does not dispute that he did not make an application to depart from the child support assessments until shortly after the Departure Prohibition Order was made by the Child Support Registrar’s delegate.
At the hearing of the Departure Prohibition Order appeal, the father did not challenge the Agency’s assertion that he had made no attempt to make arrangements with the Agency to pay his child support liability, despite their persistent efforts to negotiate a payment arrangement with him. I quote from paragraph 57 of my Reasons for Judgment[14]:
The applicant did not address the question as to why he persistently failed to pay any part of his child support obligations from September 2005, whether at the assessed rate or any other rate, nor in particular as to why he had not met his child support obligations for the many months when he was assessed to pay child support of $22 a month.
[14] [2007] FMCAfam 1106
Ms Hawkins for the Child Support Registrar submits that the father’s attitude to his child support obligations over a long period should be taken into account in these proceedings. Ms Hawkins submits, and the father does not dispute, that the father has made no payments in accordance with the orders for payment of child support made by Federal Magistrate Baumann in relation to the father’s departure application, nor any payments at all. I accept this submission.
The father submits that the Court has a discretion as to whether or not to order costs. The father submits that because he was partially successful in the departure from child support assessment proceedings, he should not be required to pay costs of the Departure Prohibition Order appeal. I do not accept this submission. As I found in the appeal for which costs are now sought, the father had ample opportunity to make a departure application well before the Departure Prohibition Order was imposed on him. He did not do so. The father had ample opportunity to make arrangements to repay the child support arrears, but did not do so. The father has made no child support payments on a voluntary basis since 2003, and persists in his refusal to do so.
Having regard to the matters I have referred to under subparagraphs (e) and (g) of s.117(2A) of the Act, I find it appropriate in the circumstances of this case to make an order for costs in favour of the Child Support Registrar.
Ms Hawkins asks for the sum of $4,160 made up as follows:
| Stage 1: Initiating Application up to completion of first court day | $1500 |
| Court attendance (mention): 8 November 2007 | $205 |
| Hearing fee for 1 day including 50% loading for solicitor advocate | $2250 |
| Attendance for judgment | $205 |
TOTAL: | $4160 |
I find these amounts, itemised in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001, reasonable and I allow them in full.
Neither party made submissions on the question of time to pay. I will give the father 3 months to pay.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 13 August 2008
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