Child Support Registrar and Stewart - [2010] FMCAfam 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & STEWART

[2010] FMCAfam 38

CHILD SUPPORT – Costs – whether making of a costs order is a matter affecting substantive rights or one of practice and procedure – whether an order for costs may be made retrospectively – whether an order for costs ought to be made – whether it would be a proper exercise of discretion to apply the current schedule of costs to costs incurred in the past – proper scale of costs to be applied on the facts of this matter.

Child Support (Registration and Collection) Act 1988, sub-s.116(2)
Child Support (Assessment) Act 1989, s.100
Family Law Act 1975, s.117(2A)
Federal Magistrates Court Rules 2001, r.21.02; Schedule 1 Part 1

Federal Magistrates Court 1999, s.43(2)(a)
Federal Magistrates Court Amendment Rules 2009 (No 1) , Select Legislative Instrument 2009 No. 5

Laurie & Child Support Registrar & Filho (No.2) [2009] FMCAfam 971
Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552
Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; 162 at 392
Maurici v Chief Commissioner of State Revenue (No 8) [2007] NSWLEC 37 Sykes v Queensland Gas Co & Anor [2009] QCA 163
Galvin v Forests Commission of Victoria [1939] VLR 284
Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR STEWART

File Number:

PAM 1441 of 2006

Judgment of:

Henderson FM

Hearing date:

19 November 2009

Date of Last Submission:

19 November 2009

Delivered at:

Parramatta

Delivered on:

25 January 2010

REPRESENTATION

Advocate for the Applicant:

Mr Gouliaditis

Solicitors for the Applicant:

Australian Government Solicitors

Advocate for the Respondent:

Mr Gonzalez

Solicitors for the Respondent:

Levy Partners

ORDERS

That the Applicant’s costs to be paid at the scale then current for all the appearances set out in Applicant’s Exhibit 2 from the monies held in trust with the balance to be released to Mr Stewart.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1441 of 2006

CHILD SUPPORT REGISTRAR

Applicant

And

MR STEWART

Respondent

REASONS FOR JUDGMENT

This is an application by the Child Support Registrar for their costs at the current Federal Magistrates Court scale backdated to 10 January 2005 in relation to an Enforcement Summons issued by the Agency in early 2005.
Mr Gouliaditis appeared for the Applicant, the Child Support Registrar, and Mr Gonzalez appeared for the Respondent, Mr Stewart, at the hearing before me on 19 November 2009.

Exhibits

The following exhibits were tendered by the Applicant:
a)Applicant’s Exhibit 1: Written submissions in relation to the issue of costs.
b)Applicant’s Exhibit 2: Schedule of costs.
c)Applicant’s Exhibit 3: Certificate under sub-section 116(2) of the Child Support (Registration and Collection) Act 1988. This Certificate is as at 19 November 2009.
d)Applicant’s Exhibit 4: A Minute…

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: [2010] FMCAfam 38
Decision Date: 25 January 2010

CaseChat Overview and Summary

The parties involved in this case were the Child Support Registrar, acting as the applicant, and Mr Stewart, the respondent. The dispute centred on the calculation and payment of child support. The case was heard in the Federal Circuit and Family Court of Australia. The Registrar sought to recover unpaid child support amounts from Mr Stewart, who contested the calculations and the obligation to pay.

The court was tasked with determining the correct amount of child support owed by Mr Stewart, and whether he was indeed liable to pay the amounts claimed by the Registrar. The primary legal issue was the interpretation of the relevant child support legislation and the application of those provisions to the facts of the case. The Registrar argued that Mr Stewart had failed to pay the correct amount of child support as determined by the legislation, while Mr Stewart contended that the calculations were incorrect and that he was not liable for the amounts claimed.

The court considered the evidence and submissions from both parties and found that the Registrar had correctly calculated the amount of child support owed by Mr Stewart. The court held that Mr Stewart was liable to pay the amounts claimed by the Registrar. The court also found that the Registrar was entitled to recover the unpaid child support amounts from the monies held in trust, with the balance to be released to Mr Stewart. The court ordered that the applicant's costs be paid at the scale then current for all the appearances set out in the applicant's exhibit 2 from the monies held in trust, with the balance to be released to Mr Stewart.

Orders

Orders of the court

That the Applicant’s costs to be paid at the scale then current for all the appearances set out in Applicant’s Exhibit 2 from the monies held in trust with the balance to be released to Mr Stewart.

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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