AMZ21 v ANA21 (No 2)
[2022] FedCFamC2G 1056
Federal Circuit and Family Court of Australia
(DIVISION 2)
AMZ21 v ANA21 (No 2) [2022] FedCFamC2G 1056
File number(s): MLG 1558 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 21 December 2022 Catchwords: CHILD SUPPORT – COSTS – costs sought by second respondent – where costs sought is below scale amount – where applicant provided no convincing reason why costs should not be fixed in sum sought – costs order made in fixed sum in favour of second respondent. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 22.09 Cases cited: AMZ21 v ANA21 [2022] FedCFamC2G 507 Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 29 August 2022 Date of hearing: 29 August 2022 Place: Melbourne Counsel for the Applicant: Mr C Stamopoulos Solicitor for the Applicant: Bentleys Barristers and Solicitors Solicitor for the Second Respondent: Mr C Bavin of Hunt & Hunt Lawyers ORDERS
MLG 1558 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMZ21
Applicant
AND: ANA21
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The costs payable by the applicant to the second respondent pursuant to order 2 of the orders made on 27 June 2022 be fixed in the sum of $12,300 with such costs to be paid within 60 days.
2.The proceeding otherwise be removed from the list of cases pending.
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 AMZ21 v ANA21 (No 2) is approved pursuant to s110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
On 27 June 2022, I delivered judgment in the substantive proceedings between these parties.[1] These reasons are to be read in conjunction with those reasons.
[1] AMZ21 v ANA21 [2022] FedCFamC2G 507.
On that date, I ordered that the applicant pay the second respondent’s costs in a sum to be fixed if not agreed. The parties have not been able to agree the costs to be paid pursuant to that order and therefore seek that they be fixed by this court.
Costs sought by the second respondent
The second respondent seeks costs be fixed in the sum of $12,300, which it is submitted is the amount less than the amount pursuant to Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’).
Costs sought by the applicant
The applicant opposes cost in that sum. The applicant’s position is that the amount claimed is excessive, although the applicant does not identify the amount by which the costs are said to be excessive, or indeed, what costs ought to be paid.
Background
The second respondent relies upon two affidavits sworn by Ms B, the first sworn on 17 August 2022 and the second sworn on 26 August 2022.
In those affidavits, Ms B attests to the steps taken to seek agreement of the applicant to costs sought. On 5 July 2022, Ms B sent an email to the applicant’s representative attaching a Statement of Costs and Disbursement which are said to have been calculated by reference to Schedule 2 of the Rules.[2] The amount claimed in that Statement of Costs and Disbursements has not altered since it was initially sent, and as indicated, is said to be an amount below the scale amount.
[2] Affidavit of Ms B sworn and filed on 17 August 2022 at paragraph [2]; Annexure A.
No response was received to this initial correspondence.[3] Ms B has sent further correspondence to the applicant’s representative, but no response was received.[4]
[3] Affidavit of Ms B sworn and filed on 17 August 2022 at paragraph [3].
[4] Affidavit of Ms B sworn and filed on 17 August 2022 at paragraphs [4] and [5].
Costs
Rule 22.09 of the Rules provides that:
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred.
In this case, no amount is claimed for disbursements.
The second respondent has set out in the Statement of Costs and Disbursements the various items claimed pursuant to Schedule 2 which total $14,240. The amount that the second respondent seeks by way of a costs order is the amount of $12,300, which is below the amount permitted in accordance with Schedule 2. As stated, the applicant has not identified which of those items have been improperly included.
At the hearing before me, when invited to indicate what costs claimed are not allowable pursuant to Schedule 2, the applicant’s representative simply said that:
·the amount claimed is excessive;
·there were three lawyers present at the hearing and it could have been dealt with by less personnel involved and/or by more junior personnel involved; and
·the costs ought be reduced.
The applicant has not provided any convincing reasoning why the court should not fix the costs payable to the second respondent in the amount sought. There is no suggestion that any particular item sought is not appropriate.
In all of the circumstances, I am satisfied that the costs payable to the second respondent pursuant to the orders made on 27 June 2022 ought be fixed in the sum of $12,300 as sought by the second respondent, that amount being less than the amount otherwise specified in Schedule 2 of the Rules.
Conclusion
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 21 December 2022
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