Chatfield & Chatfield
[2021] FCCA 1242
•26 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chatfield & Chatfield [2021] FCCA 1242
File number(s): MLC 3622 of 2021 Judgment of: JUDGE MCNAB Date of judgment: 26 May 2021 Catchwords: CHILD SUPPORT – stay application – father seeks the collection of child support to be stayed pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth) – where the father had filed an application with the court on 1 April 2021 – where Child Support-Services Australia (“CSSA”) had reduced the Father’s child support obligations from $488.05 per week to $125 per week on 5 May 2021 – where the father has filed a notice of objection to the decision of CSSA – where the grant of a stay would be limited to a 60-day period – where there is a lack of proportionality between the costs that each party has been required to expend in these proceedings and the benefits to be obtained from granting a stay – application dismissed – where the father’s application was an abuse of process from the point that the CSSA’s decision was made on 5 May 2021 – where the father should have discontinued these proceedings once the CSSA’s decision was made on 5 May 2021 – where the mother was required to respond to the father’s application – father to pay the mother’s costs of the application. Legislation: Child Support (Registration and Collection) Act 1988 (Cth) s 111C
Family Law Act 1975 (Cth) s 117(2A)
Family Law Rules 2004 (Cth) r 1.08
Other Materials:
Family Court of Australia and Federal Circuit Court of Australia, Joint Practice Direction 1 of 2020: Core Principles in the Case Management of Family Law Matters, 28 January 2020
Cases cited: Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758
Yapp & Wyndham [2021] FamCAFC 80
Number of paragraphs: 22 Date of last submission/s: 26 May 2021 Date of hearing: 26 May 2021 Place: Melbourne Counsel for the Applicant: Mr J Mellas Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondent: Ms A Finemore Solicitor for the Respondent: Duffy & Simon Lawyers ORDERS
MLC 3622 of 2021 BETWEEN: MR CHATFIELD
Applicant
AND: MS CHATFIELD
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
26 MAY 2021
THE COURT ORDERS THAT:
1.The Applicant Husband’s application filed 1 April 2021 and amended application filed 26 May 2021 be dismissed.
2.The Applicant pay the Respondent’s costs fixed in the sum of $5533.00.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Section 110X(4)(h) of the Child Support (Registration and Collection) Act1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Chatfield & Chatfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)Judge McNab:
INTRODUCTION
This matter comes before the Court by way of an initiating application filed by the Applicant Father on 1 April 2021. The Father seeks orders pursuant to s111C of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Child Support Act”) for the collection of child support in respect of two children, born in 2006 and 2008, to be stayed pending the outcome of the Father’s application for a change of assessment filed with Child Support – Services Australia (“CSSA”) on 12 March 2021 and any subsequent period of objection. The Father, by written submissions filed on 19 May 2021, also seeks indemnity costs. I was advised that an amended initiating application was filed by the Father this day, by which the Father seeks orders in relation to a stay arising from a decision made by the CSSA on 12 March 2021.
BACKGROUND
On 5 May 2021, CSSA made a decision in relation to the Father’s application filed on 12 March 2021. The decision had the effect of reducing the annual rate of child support payable by the Father by $5,883. This has the result that the annual rate payable was reduced to $19,583 for the period of 25 January 2021 to 31 December 2021, and to $6,503 from 19 April 2021. As a consequence, the Father’s child support obligations reduced from $488.05 per week to $125 per week. I refer to the body of CSSA’s decision.
On 11 May 2021, Registrar Sudholz made orders setting this matter down for an Interim Defended Hearing on 26 May 2021. Further orders were made for each party to file and serve written submissions (including submissions in relation to costs) of not more than 10 pages in length on or before 19 May 2021.
On 11 May 2021, prior to the hearing before Registrar Sudholz, the Father sought to file a notice of objection to the CSSA’s decision of 5 May 2021 with the Child Support Registrar. I was told at the commencement of the hearing this morning that the filing of that application has been rejected. I was also told and accept that an objection containing an extra seven pages of particulars was accepted for filing this morning by the Child Support Registrar. The Mother gave evidence that she was prepared to accept a stay on the payment of child support until the completion of the administrative review lodged by the Father on 12 March 2021, but was not prepared to wait until the Father had exhausted all avenues of review.
In circumstances where:
(1)the Father is now being assessed to pay $125 per week in child support; and
(2)he has reviewed that assessment and the review is required to be completed within 60 days of being filed,
the amount that is likely to be affected by a stay is the sum of approximately $800.
I have been told that since the assessment on 5 May 2021, the Father has expended between $1,200 to $2,000 dollars in relation to Counsel’s fees for written submissions, $4,800 for Counsel’s appearance today and that there will be further costs in relation to his solicitor. I assume that the costs of the stay application will be approximately $10,000. These funds have been expended for the purposes of obtaining a stay of child support payments in the approximate sum of $800.
CONSIDERSATION
In considering the grant of a stay, I must consider:
(1)whether there are proceedings on foot of the type set out in s111C(1) of the Child Support Act;
(2)whether the Father has an arguable case in respect of those proceedings; and
(3)whether the balance of convenience favours the grant of a stay.
In the circumstances of this case, I must also consider whether the prosecution of the application, particularly after 5 May 2021, constitutes an abuse of process.
There is evidence that the Father now has an application on foot. The Father raises grounds that may be arguable as to whether there is an error on the part of the decision maker of the CSSA. But at first blush, the challenges to the decision of the CSSA seem to be a challenge to the exercise of discretion, and it is difficult to discern what species of error is revealed by the decision. That said, even if there is an arguable case, the lack of proportionality between the costs that each party has been required to expend in these proceedings and the benefits to be obtained, particularly after 5 May 2021, are such that the balance of convenience does not favour the grant of a stay.
Indeed, in my view, proceeding with an application for a stay in light of the reduced child support payments arising from the decision made on 5 May 2021 renders the Father’s application an abuse of process from the point that the CSSA’s decision was made and communicated to the parties.
In making my decision, I bear in mind Joint Practice Direction 1 of 2020, issued by the Family Court of Australia and the Federal Circuit Court of Australia on 28 January 2020, which sets out the core principles in case management of family law matters.
Under the heading ‘Parties’, Lawyers’ and the Courts’ Obligations and Overarching Purpose’, the Joint Practice Direction provides at [2] that:
2. The overarching purpose to be achieved is to ensure the just, safe, efficient and timely resolution of matters at a cost to the parties that is reasonable and proportionate in all the circumstances of the case, having regard to the significant impact of family law disputes on children and families.
I also refer to [7] of the Joint Practice Direction, which is under the heading ‘Lawyers’ Obligations About Costs’ and provides that:
7. Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Parties and their lawyers are expected to engage in cost budgeting, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur (see Part 19.2 of the Family Law Rules 2004).
Rule 1.08 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) also provides that “each party has a responsibility to promote and achieve the main purpose”, including, “assisting the just, timely and cost-effective disposal of cases.” The main purpose of the Family Law Rules, as set out in r1.04, is to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.”[1]
[1] For the application of like principles in the Victorian jurisdiction see Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758.
The Court is now faced with a situation where the Father has spent approximately $10,000 on this matter (having regard to what I was told in relation to his costs of this application, as set out above) in order to stay the payment of approximately $800.
All associated costs with this matter have, for the most part, arisen after 5 May 2021, and are entirely disproportionate to the benefits that might be obtained from this application. In the course of discussions with Counsel for the Father, it was accepted that the stay could not run for longer than the time between the objection application lodged today by the Father and the decision by the Child Support Registrar on that application being made. Given that there is a mandatory requirement for the Child Support Registrar to determine the objection within 60 days that fixes the extent of the dispute at the sum of approximately $800. That was accepted by Counsel for the Father.
The Court could not be in a position to assess the merit of any application that has not been made, in respect of a decision that has not been delivered. On that basis, a stay, if granted, could not run beyond a 60-day period. It would be entirely unreasonable to order a stay to remain in effect until the Father has exhausted all grounds of review that he might have in the future, in respect of some decision that has not yet been made. In my view, it is appropriate to dismiss the application for a stay.
I am also of the view that it is appropriate that the Father pay the Mother’s costs on the Federal Circuit Court scale. The Mother has not sought indemnity costs.
It is disappointing when reading the material, particularly the submissions and correspondence between the parties, that a significant amount of time and expense has been directed by the Father in seeking to achieve an order for indemnity costs in this matter.
The costs sought by the Mother have been set out in a schedule which has been provided to Counsel for the Father and to the Court. In circumstances where the Mother was required to respond to the Father’s application, and the costs sought by her are reasonable and on scale, I am minded to make the order for costs sought by the Mother. I note that there is no claim for the costs of written submissions and other similar material. I have regard to s117(2A)(c) of the Family Law Act 1975 (Cth) and, in particular, the conduct of the parties to the proceeding. Once the CSSA’s decision made on 5 May 2021 was published, the Father, as the moving party in these proceedings, should have immediately taken steps to discontinue the application before the Court, before the substantial costs that have been incurred, particularly by the Father, were incurred.
In relation to the Father’s impecuniosity, which was raised by his Counsel, I appreciate that he is under financial stress. However, I refer to the decision of his Honour Strickland J in a decision published today under the pseudonym Yapp & Wyndham [2021] FamCAFC 80. At [40] of that decision, his Honour relevantly states that:
As to the Father’s financial circumstances, there is ample Full Court [of the Family Court of Australia] authority that even impecuniosity is not a bar to an order for costs being made, where there are circumstances otherwise that justify such an order being made (D & D (No. 2) (2010) FLC 93-435).
In my view, given the circumstances of this case, it is appropriate that orders be made as to the Mother’s costs as against the Father in the sum of $5,533. This application should have been discontinued at the earliest possible time after the decision of CSSA was made known to the parties. The Mother was required to respond to the Father’s continued application, including an application for indemnity costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 4 June 2021
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