Child Support Registrar and Simmons (No.2)

[2014] FCCA 1751

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & SIMMONS (No.2) [2014] FCCA 1751

Catchwords:
CHILD SUPPORT – Costs – application for costs – where Respondent wholly unsuccessful in proceeding – consideration of Respondent’s financial circumstances – time to pay.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), s.105

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, Sch.1, Part 2, Division 1

Cases cited:
Child Support Registrar & Simmons [2014] FCCA 1245

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR SIMMONS

File Number: SYC 6064 of 2013

Judgment of: Judge Scarlett

Hearing date: 5 August 2014

Date of Last Submission: 5 August 2014

Delivered at: Sydney

Delivered on: 5 August 2014

REPRESENTATION

Solicitor for the Applicant: Ms Fusitu'a

Solicitors for the Applicant: Australian Government Solicitor

The Respondent: In person

ORDERS

1. The Respondent is to pay the Applicant’s costs of the proceedings fixed in the sum of $5,263.00.

2. The Respondent is allowed 8 months to pay.

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Simmons (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6064 of 2013

CHILD SUPPORT REGISTRAR

Applicant

And

MR SIMMONS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Child Support Registrar for an Order for costs against the Respondent, arising out of proceedings against him which were finalised on 18 June 2014. On that date, the Court delivered a judgment providing that the Respondent is to pay to the Applicant the sum of $50,231.43, consisting of arrears in child support in the amount of $27,489.45 and $22,741.98 in late payment penalties (Child Support Registrar & Simmons[1]).

   [1] [2014] FCCA 1245

2. As a result of the decision, the Registrar sought an order that the Respondent should pay the Registrar’s costs in the amount of $5,263.00, calculated in accordance with the Court scale.

3. The Respondent opposes the Application for costs.  

Costs in Child Support Proceedings

1. Where proceedings, such as the substantive Application, are brought under the Child Support (Registration and Collection) Act 1989 (Cth), section 105 of that Act provides that the Family Law Act 1975 (Cth), as if the proceedings were proceedings under the Family Law Act 1975. Thus, when a party seeks an order for costs, the Court must look at the provisions of s.117 of the Family Law Act 1975.

2. Section 117 of the Family Law Act 1975 provides, at subsection (1), that subject to subsection (2), if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order for costs as it considers just.

3. In considering what order (if any) should be made under subsection (2), the Court must have regard to the matters set out in subsection (2A), which are:

   a)the financial circumstances of each of the parties to the proceedings;

   b)whether any party is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g)such other matters as the court considers relevant.

Submissions

1. Ms Fusitu’a submitted on behalf of the Registrar that the Respondent had been wholly unsuccessful in the proceedings. She also submitted that the Respondent’s financial circumstances remained as they were during the hearing. Ms Fusitu’a further submitted that, whilst the Respondent had not failed to comply with a previous order of the Court, the difficulty in ascertaining the amount of child support that he should have been paying was brought about by his failure to file income tax returns for 18 years.

2. The Respondent told the Court that he did not see why he should pay the Registrar’s costs. He said that the Registrar had already received a judgment providing that he should pay late payment penalties in the amount of $22,741.98.

3. In answer to a question from the Bench, the Respondent said that he was self-employed and earned on average about $600.00 per week.

Conclusions

1. The Respondent’s financial circumstances are, in my view, worse than they were when the substantive Application was heard, as he now faces a judgment for $50,231.43, which he is required to pay within 60 days from the date of the previous Orders, which were made on 18 June 2014.

2. The Respondent is not in receipt of a grant of legal aid.

3. It is a significant matter that the Respondent was wholly unsuccessful in the proceedings.

4. Taking those matters into account, I am satisfied that the Respondent should pay the Applicant’s costs.

5. The amount of $5,263.00 sought is in accordance with the scale set out in Division 1 of Part 2 of Schedule 1 of the Rules. I am satisfied that the Respondent should pay the sum of $5,263.00.

6. Noting the Applicant’s financial circumstances, I propose to allow 8 months to pay.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  6 August 2014