Child Support Registrar and Lovell and Anor
[2016] FamCAFC 130
•15 June 2016
FAMILY COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & LOVELL AND ANOR | [2016] FamCAFC 130 |
| FAMILY LAW – COSTS – Where the appeal was deemed abandoned due to failure to comply with r 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks costs pursuant to r 22.43 of the Family Law Rules 2004 (Cth) – Where the fixed sum for costs sought by the applicant is reasonable – Costs order made. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Rules 2004 (Cth) rr 1.14, 19.18, 22.21, 22.43, 22.53, 26.30(2) |
| APPELLANT: | Child Support Registrar |
| FIRST RESPONDENT: | Mr Lovell |
| SECOND RESPONDENT: | Ms Smart |
| FILE NUMBER: | PAC | 502 | of | 2014 |
| APPEAL NUMBER: | EA | 185 | of | 2015 |
| DATE DELIVERED: | 15 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 15 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2015 |
| LOWER COURT MNC: | [2015] FCCA 2507 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Thompson |
| THE FIRST RESPONDENT: | No Appearance |
| THE SECOND RESPONDENT: | Excused from attendance |
Orders
That Mr Lovell is to pay the Child Support Registrar’s costs of the appeal fixed in the sum of $3500 within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Child Support Registrar & Lovell and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 185 of 2015
File Number: PAC 502 of 2014
| Child Support Registrar |
Appellant
And
| Mr Lovell |
First Respondent
And
Ms Smart
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 5 May 2016 the Child Support Registrar (“CSR”) seeks its costs of the appeal in this matter.
In order to understand the application for costs some history is necessary. In proceedings between Mr Lovell, the CSR and Ms Smart, the Social Security Appeals Tribunal dismissed Mr Lovell’s appeal from a decision of the CSR, who had determined the amount of child support payable by Mr Lovell to Ms Smart pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
As he was entitled to do, Mr Lovell appealed to the Federal Circuit Court of Australia.
On 21 September 2015 Judge Dunkley dismissed the appeal.
Again being dissatisfied, on 10 November 2015 Mr Lovell filed a Notice of Appeal from that decision. The appeal was not competent, as the Notice of Appeal was not filed within 28 days of the decision of Judge Dunkley. Accordingly, on the same date Mr Lovell also filed an Application in an Appeal seeking an extension of time in which to file the Notice of Appeal.
On 14 December 2015 the appeals registrar made a number of orders preparing the Application in an Appeal and the appeal for hearing. Both were listed for determination by a Full Court on 16 February 2016. Pursuant to those directions, Mr Lovell was ordered to file 10 copies of the appeal books on or before 15 January 2016. He did not do so, and by virtue of the operation of r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”), the appeal was taken to have been abandoned at the close of business on 15 January 2016.
The CSR had 28 days from that date in which to seek a costs order (r 22.53(2)). The CSR did not do so, but filed the application on 15 February 2016, which was three days late.
On 5 May 2016 I made an order pursuant to r 1.14 of the Rules, extending the time in which the application for costs could be filed up to and including 6 May 2016. The application for costs is now before me for determination pursuant to a direction that the appeal be heard by a single judge made by May J on behalf of the Chief Justice on 26 May 2016.
Neither Mr Lovell nor Ms Smart have appeared this morning. Ms Smart informed the Registry that she did not propose to appear unless she was required to do so, as she had no interest in the proceedings. She was not required to attend. Mr Lovell has not appeared.
When the application for an extension of time was first before the Court on 21 April 2016 Mr Lovell appeared, told the Court that he had only just received the documents and wanted the matter adjourned so that he could prepare for the hearing. That application was acceded to, and the matter was stood over to 5 May 2016. Mr Lovell did not appear on that date.
The CSR has tendered a copy of an email sent by Ms R, a secretary to the solicitor for the CSR, on 27 May 2016. As far as can be seen, a copy of the letter has been sent to both Mr Lovell and the lawyers acting for Ms Smart. The letter informs the recipient that the Application in an Appeal would be heard today, 15 June 2016. The email also annexes a copy of the letter sent by the Eastern Appeals Registry to all parties, including Mr Lovell, on 26 May 2016. That letter advised the parties that the matter was fixed for hearing today.
Attached to the copy of the email are two yellow stickers with numbers. They appear to be in the form of the sender’s record of registered mail. I am informed by Mr Thompson, solicitor for the CSR, that that is in fact the case, and that in addition to Ms R sending the emails referred to above, she also posted copies of the letter, the Application in an Appeal and supporting affidavit to the parties by registered mail. Mr Thompson offered to have an affidavit prepared to establish that, but in the circumstances, in the interests of costs and given that the parties seem to have been advised by email by Ms R and by post of today’s date I am comfortably satisfied that Mr Lovell is aware the matter is on today without the need for such an affidavit.
Costs are governed by s 117 of the Family Law Act 1975 (Cth) (“the Family Law Act”), and the default position is that the parties are to pay their own costs, unless the Court otherwise orders. The Court may otherwise order where there are circumstances that justify it, and in undertaking that consideration the Court is to have regard to the matters set out in s 117(2A).
I have no evidence before me as to the financial circumstances of any of the parties. The CSR principally relies upon the fact that Mr Lovell was wholly unsuccessful because his appeal was deemed abandoned because he did not file the appeal books on time.
Rule 22.43 of the Rules specifically provides that if an appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all the other parties. It is to be recalled that Mr Lovell’s appeal was not competent and that he required an extension of time in which to file the Notice of Appeal for that appeal to be heard. Pursuant to the directions of the registrar, both his application for an extension of time and the appeal were listed for hearing before the Full Court at the same time, which is of course a considerable advantage and benefit to Mr Lovell. The appeal obviously also required the CSR to attend directions hearings and the like in order to prepare for the appeal. I am satisfied that the circumstances justify an order for costs in favour of the CSR.
The CSR seeks an order that costs be fixed by me (r 26.30(2)). The solicitor for the CSR deposes in an affidavit that the costs of the CSR on a solicitor‑client basis exceed some $6000, excluding GST. This includes charging for perusing and considering the Notice of Appeal, Application in an Appeal and affidavit filed by the appellant, various attendances and correspondence with the court and the parties in relation to procedural orders and briefing counsel to draft the CSR’s submission to appear at the hearing of the appeal. It is important to note at this stage that an appeal to the Family Court must involve a question of law in relation to the Assessment Act. The affidavit continues to depose that there was additional work done by the solicitors for the CSR in relation to the appeal, which is not included in the sum of $6,000. The CSR seeks an order for costs fixed in the sum of $3500. The solicitor deposes:
This is considerably less than the Registrar’s actual legal costs of this appeal. Further, I consider that this amount is less than the Registrar would be entitled to, were the cost to be calculated in accordance with Schedule 3 of the Rules.
When making an order for costs the Court is able to make such order as it sees fit, including fixing the amount (see s 117 of the Family Law Act and r 19.18 of the Rules). The amount of costs is relatively small. The unchallenged evidence is that the amount of $3500 is likely to be less than the CSR would receive after taxation. I am therefore satisfied that that is an appropriate amount and that it is appropriate to fix the costs as sought by the CSR.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 15 June 2016.
Associate:
Date: 19 July 2016
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