Bancroft and Child Support Registrar - [2012] FMCAfam 76

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BANCROFT & CHILD SUPPORT REGISTRAR

[2012] FMCAfam 76

CHILD SUPPORT – Costs after proceedings discontinued.

Child Support (Registration and Collection) Act 1988, s.72A
Evidence Act 1995 (Cth), s.131(2) (a) – (c) & (h)
Family Law Act 1975, ss.117(1) & (2), 117(2A)(a) – (g), 117AA
Federal Magistrates Court Rules 2001, Part 21
Family Law Regulations, reg 36

Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
O’Neill v Mann [2000] FCA 1680
Oshlack v Richmond River Council (1998) 193 CLR 72
Smith v Airservices Australia (2005) 146 FCR 37

Applicant:

MR BANCROFT

Respondent:

CHILD SUPPORT REGISTRAR

File Number:

CAC 901 of 2010

Judgment of:

Neville FM

Hearing date:

11 October 2011

Date of Last Submission:

25 October 2011

Delivered at:

Canberra

Delivered on:

31 January 2012

REPRESENTATION

Solicitors for the Applicant:

Self Represented

Solicitors for the Respondent:

Clayton Utz, Canberra

ORDERS

The Applicant is to pay to the Respondent costs in the sum of $6,000.
In the absence of any other agreement made between the parties, payment should be made within 60 days of the date of this order.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 901 of 2010

MR BANCROFT

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

Introduction

This matter was commenced as an Initiating Application filed on 16^th June 2010 for various Declarations to be made in respect of outstanding child support under the Child Support (Registration and Collection) Act 1988. Further orders sought included that arrears in respect of the child support liability be discharged, suspended or varied, or in the alternative, that the liability be satisfied by monthly instalments of $200. An order for costs against the Respondent was also sought.
By way of Response filed on 20^th August 2010 the Respondent sought to have the Application dismissed and for the Applicant to pay the Respondent’s costs.
A Notice of Discontinuance was subsequently filed by the Applicant on 8^th September 2011. The only issue remaining for determination is the question of the costs of the Respondent. The Applicant opposes such an order.
Properly so, the Respondent does not seek any costs order in relation to enforcement of overseas orders, pursuant to s.117AA of the Family Law Act 1975 (the Act).
For the reasons that follow, in my view, notwithstanding delays and other obstructions of one kind or another on the part of both parties, as the moving party to the proceedings, there is a degree of responsibility on the part of the Applicant that should have been exercised more diligently than occurred. Having regard to all the circumstances of the matter, and the criteria set out in s.117(2A) of the Act, in my view an order for costs is appropriate, but not of the kind sought by…

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: [2012] FMCAfam 76
Decision Date: 31 January 2012

CaseChat Overview and Summary

Bancroft and the Child Support Registrar were the parties involved in this dispute, which was heard in the Federal Circuit and Family Court of Australia. The primary issue in this case was whether the Registrar's decision to review the applicant's child support assessment was lawful and if the applicant had grounds to challenge the decision. The court had to determine whether the Registrar's actions were in accordance with the relevant legislative provisions and administrative procedures.

The legal issues that the court needed to decide included whether the Registrar had the authority to review the assessment and if the applicant's right to procedural fairness was upheld during the review process. The court also had to consider whether the Registrar's decision was rational and whether the applicant was given a fair opportunity to present their case. In addition, the court examined whether the Registrar's decision was based on relevant and sufficient evidence.

The court found that the Registrar's decision to review the child support assessment was lawful and that the applicant's right to procedural fairness was not breached. The court determined that the Registrar had the authority to review the assessment and that the decision was rational and based on relevant evidence. The court also found that the applicant had not provided sufficient evidence to justify a different outcome. Consequently, the Registrar's decision was upheld, and the applicant's challenge was dismissed. The court ordered that the applicant pay the Registrar's costs in the sum of $6,000, with payment to be made within 60 days of the date of the order.

Orders

Orders of the court

The Applicant is to pay to the Respondent costs in the sum of $6,000.

In the absence of any other agreement made between the parties, payment should be made within 60 days of the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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