Asquith and Simpson

[2007] FamCA 69

FAMILY COURT OF AUSTRALIA

ASQUITH & SIMPSON [2007] FamCA 69

FAMILY LAW - COSTS

APPLICANT:  MS ASQUITH

RESPONDENT:  MR SIMPSON

FILE NUMBER: SYF 3095 of 2005

DATE DELIVERED: 05 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: COHEN J

HEARING DATE: 05 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CLIFTON

SOLICITOR FOR THE APPLICANT: WYATT ATTORNEYS

COUNSEL FOR THE RESPONDENT: MS BLACK

SOLICITOR FOR THE RESPONDENT: JOHN R QUINN & CO

Orders

1. The application for costs is hereby dismissed.   

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3095/05

MS ASQUITH

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application for costs made by the mother in an application which was filed on 16 January 2006 for child support.  The relevant facts or facts that could make any difference are of very narrow compass in my opinion.  Both parties at the time they met were members of the Defence Forces.  The father was born in 1960 and the mother 1969.  They met in 2001 but in 2003 and 2004 they had what is, according to the evidence, a casual or intermittent sexual relationship. 

2. In February 2004, the mother informed the father that she was pregnant and in September their child, L, was born.  Between 1 October 2004 and 10 December 2004, the father was deployed on duty.  He received, before he left but only shortly before he left, a letter from the Child Support Agency, dated 22 September 2004, stating that the mother had made an application for child support.  However, on 8 November 2004, he was informed that, not only had the Child Support Agency refused the application for child support, there was an objection by the mother to that refusal.

3. On 4 January 2005, the father was informed that the mother's objection had been disallowed on the ground that there was inadequate evidence to establish L’s paternity.  The father, up to that time, disputed or was uncertain about that paternity, although the mother claimed that he was the only person who could have been the father.  Between 17 January 2005 and 6 May 2005, the father spent all but about three weeks approximately on duty. 

4. On 12 May he understood that the mother was seeking both back payment of child support and a DNA test to establish paternity.  At no time did the father refuse to provide such a test.  The test was actually done in late May and the father received the results establishing his paternity on 16 June 2005.  The father then sought advice from the Child Support Agency about his liability.  In doing so, he informed the agency that he was L’s father and that that had been confirmed by DNA testing.  He firstly wrote to the Child Support Agency on 19 October 2005. When he got no response he wrote again on 26 October.  In each instance he simply wanted to know what his obligations to pay child support were. 

5. The response he got came on 25 October.  It said that the mother had failed to prove L’s parentage to the Child Support Agency and, therefore, the mother was ineligible for child support. There is no evidence that, at any relevant time before the application was made, the mother had attempted to prove parentage to the Agency.  On 26 October, the father sent an email to the mother.  In it he said what must have been obvious; that is, that it was difficult for him to make payments while overseas and he would attend to those payments on his return from overseas.  At the time he was on duty in the Persian Gulf. 

6. He is not a lawyer. Although he had lawyers acting for him, it seems to me he did not do anything wrong or inappropriate, despite being in occasional email contact with his lawyers, in attempting to do things properly by, firstly, getting advice from his lawyers and, secondly, relying upon his obligation under the Child Support Legislation rather than volunteering money.   He is entitled, it seems to me, to rely upon the law in force, and it required no more than he did. 

7. It was not until 5 December that the father received a text message from the mother stating that the Child Support Agency had been informed of the DNA result.  There seems to have been nothing from the Child Support Agency to indicate that that was the case. In fact, it was the mother's response to tell the father that the Child Support Agency had been informed as a result of the father having told her, on the same day, that there was nothing he could do until she submitted the DNA results to the agency. 

8. On 13 January 2006, the father spoke to the Child Support Agency asking to be able to commence payments.  Again, he was told that the mother had to submit the DNA documents and make an application for payments, and that this had not been done.  It was then, on 13 January 2006, that the father received a call from the mother while she was at the Child Support Agency.  The mother told the father that she would send him the appropriate forms to complete in order to be assessed and to enable payments. 

9. The father completed and dispatched the form which is called a Liable Parent's Application on 20 February 2006. In the meantime, the mother commenced a Child Support Application, and it is that application that is the subject to this application for costs. 

10. The application was never heard.  It was settled after negotiations in mid 2006.  The negotiations took place over the period between the commencement of the mother's application and the date of settlement.  It cannot be said that, as a result of those negotiations, the father was wholly unsuccessful.  The result of the settlement was of more benefit to him and his obligation than to the mother's claim. 

11. In all of the circumstances, I have to consider whether or not they amount to a reason to order costs, notwithstanding section117(1) of the Act which provides that, ordinarily, even if a party is unsuccessful, costs do not follow the event and that parties ought to meet their own costs.  I also have to decide, if the circumstances warrant a costs order being made, what that costs order should be. In deciding that and whether or not the costs order should be made I must consider the factors stated in section 117(2A) of the Act. 

12. The first of those factors is the financial circumstances of each of the parties to the proceedings.  The only matters that there is evidence of relating to those circumstances are that the current income of the mother is $42,000 per annum; the current income of the father is $65,000 per annum; that the father pays and has always paid since assessment his child support payments and that, in a prior year; the year he was overseas a lot, his income was $145,000 approximately per annum.  That income ceases to be relevant in the light of having no knowledge whatsoever of the assets of the father, nor do I have knowledge of the assets of the mother. To know their income is of little assistance if one does not know their assets.

13. A party may have a small income and very great assets, or a large income and very small assets.  In the circumstances, the only assumption I can make as a result of the failure to advise me of the parties' assets is that each party can afford the obligation of costs, in a sense that the mother can afford to pay her own costs, and the father can afford to pay his costs and the mother's costs, whatever they may be.

14. I have been informed that neither party is in receipt of Legal Aid assistance.  What is relied upon by the mother in relation to the conduct of the parties to the proceedings is the fact that the father failed, after he became aware that he was the father, to make payments on account of child support and, after the application was made and at a time when he knew he would be liable for child support, he failed to pay the child support that he would be liable for pending the outcome of the proceedings.  What is said is that once the mother commenced the application and some assessment was made he should have paid it rather than dispute it immediately. 

15. In my view, the father was entitled to rely upon the law in relation to his child support obligations, and the law is that until assessed he is not liable. In relation to the period afterwards; that is, after the mother made her application and an assessment must have been made, it seems that the father was entitled to dispute what he disputed because, ultimately when he agreed, the amount that was ordered by agreement was less than which was claimed. 

16. The level of success of the father is relevant.  It cannot be said, and it has not been said in submissions on behalf of the mother, that he was wholly unsuccessful in the proceedings.  To me, that is a substantial reason to not regard him as having any moral rather than legal obligation to pay until such time as the dispute was determined.  

17. There is no instance of failure of a party to comply with orders of the Court in this case and neither party made a written offer which ought to be for consideration. There are no other matters which I regard as of substance such that they are so relevant that might alter the decision that I might make. 

18. In all of the circumstances, I do not think this is a case where they are such that they justify the Court in departing from section 117(1) of the Act and making an order for costs. I shall dismiss the application for costs.  And that is the order I shall make. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ASQUITH & SIMPSON