CHILD SUPPORT REGISTRAR & BANCROFT
[2015] FCCA 3616
•24 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & BANCROFT | [2015] FCCA 3616 |
| Catchwords: COSTS – Application for costs – where Respondent wholly unsuccessful. |
| Legislation: Child Support (Assessment) Act 1989 (Cth) s.136 Child Support (Registration and Collection) Act 1988 (Cth) ss.105, 116 Family Law Act 1975 (Cth) s.117 |
| Cases cited: Child Support Registrar & Kanavos (2011) 44 Fam LR 422; [2010] FamCAFC 244 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123; [2005] FamCA 158 Hendy v Deputy Child Support Registrar (2001) 164 FLR 236; 27 Fam LR 641; [2001] FamCA 632 Laurie & Child Support Registrar [2009] FamCAFC 183 Penfold v Penfold (1980) 144 CLR 322 Penman & Child Support Registrar & Anor [2013] FCCA 632 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR BANCROFT |
| File Number: | SYC 2338 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 11 November & 9 December 2014 |
| Date of Last Submission: | 9 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Fusitu'a |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Respondent: | In person |
DECLARATION
As at 9 December 2014 the Respondent owes the Applicant Child Support Registrar the sum of $25,171.90 (hereinafter referred to as the child support debt) consisting of $22,061.41 in arrears of child support and $3,110.49 on late payment penalties.
ORDERS
The Respondent is to pay to the Applicant the child support debt of $25,171.90.
The Respondent is to pay to the Applicant the Applicant’s legal costs fixed in the sum of $6,036.00.
The Respondent is to pay to the Applicant the sum of $31,207.90 (hereinafter referred to as the total debt) comprising the child support debt as set out in Order 1 above and the Applicant’s legal costs within three (3) months of the date of these Orders.
Until further Order of the Court or payment in full of the total debt the following will apply:
(a)The Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Property N in the State of New South Wales, being the whole of the land in Certificate of Title Folio (omitted) (hereinafter referred to as the real property) without the prior written consent of the Applicant.
(b)The Respondent’s interest in the real property is to be charged in favour of the Applicant for the total debt and the Applicant is at liberty to lodge a caveat over the title to the real property to secure the interest created by this charge.
If the Respondent defaults in making any of the payments ordered to be paid under these Orders or deals with any of the real property in breach of these Orders the amount of the total debt is to become immediately due and payable.
AND THE COURT NOTES THAT
A. Any monies payable by the Respondent in accordance with these Orders are in addition to his ongoing liability to pay child support as assessed or varied from time to time.
B. If the Respondent defaults in making any of the payments ordered to be paid under these Orders or deals with any of the real property in breach of these Orders the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 including Subdivision 25B.2.3 – enforcement warrants and Subdivision 25B.2.4 – Third Party Debt Notice.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Bancroft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2338 of 2014
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR BANCROFT |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Child Support Registrar to enforce payment of arrears of child support. The Application is supported by an affidavit by a Litigation Officer affirmed on 10th April 2014. The child support liability is asserted to have arisen as a result of a Child Support Agreement entered into by the parties on 22nd May 2006, although a copy of the Agreement was not able to be located on the Department’s file.
The amount claimed at the date of the final hearing was $25,171.90, made up as follows:
a)Arrears of child support $22,061.41;
b)Late payment penalties $3,110.49.
The child support liability relates the Respondent’s children who were born on (omitted) 2001 and (omitted) 2003.
The Respondent filed an affidavit on 18th July 2014 in which he claimed that he was forced into signing the agreement by the children’s mother. He deposed that he signed the agreement under “extreme duress”.
Evidence
The Child Support Registrar relied on the following:
a)the affidavit of Vanessa Sacco, Litigation Officer, affirmed on 10th April 2014;
b)the supplementary affidavit of Vanessa Sacco affirmed on 21st May 2014;
c)the further supplementary affidavit of Vanessa Sacco affirmed on 4th September 2014;
d)a Child Support Payer Transaction Statement for the period 20th September 2002 to 8 December 2014; and
e)a Certificate under Sub-Section 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) dated 8 December 2014 showing an amount owing of $25,171.90 made up of a child support debt of $22,061.41 and Penalties (for late payment) of $3,110.49.
The Respondent relied on his affidavit sworn 17th July 2014.
Hearing
The hearing took place over two days, 11th November and 9th December 2014.
At the outset, it was noted that no application had been made to set aside the child support agreement which the Respondent claimed had been signed under duress.
Vanessa Sacco, the deponent to the three affidavits relied on by the Child Support Registrar, gave oral evidence on the first day and was cross-examined by the Respondent, who was not legally represented. Her evidence was that, although a copy of the actual child support agreement could not be located, at the time the agreement was made in May 2006, the Department did not have scanning capability:
When documents were received, a “receipting team” would manually key the details of the documents into the system. From the Department’s computer records, I have identified the text of the Agreement recorded by the receipting team.[1]
[1] Affidavit of V. Sacco10.4.2014 at paragraph [4]
In cross-examination by the Respondent, Ms Sacco said that she had worked for the Child Support Agency (as it then was) for just over nine years. She was not responsible for entering the details of the agreement into the computer. She did not know who had done so. She was asked if she could find out the identity of the person if that person still worked for the Department of Human Services.
The text of the agreement as it was recorded in the Department’s system was annexed to Ms Sacco’s affidavit of 10th April 2014.
When asked if there could be mistakes in entering documents, Ms Sacco said that before the Department had scanning capability, what used to happen was that all documents went to a receipting team, which was what would have happened in this case.
At the conclusion of Ms Sacco’s evidence, the proceedings were adjourned to 9th December 2014 for further hearing.
On 9th December 2014 the Respondent gave oral evidence and was cross-examined by Ms Fusitu’a, the solicitor appearing for the Child Support Registrar. Ms Fusitu’a tendered in evidence the certificate under sub-section 116(2) and the Child Support Payer Transaction Statement.
It was the Respondent’s evidence that the child support agreement “was signed under extreme duress, because I had not seen my children for a matter of months and Ms Grattan[2] made it very clear that I would not have any access to them unless I signed the agreement and paid the amount she demanded.[3]
[2] The mother
[3] Affidavit of Mr Bancroft 17.7.2014 at [2]
The Respondent annexed to his affidavit a copy of the agreement as he understood it. He also referred to proceedings between the Mother and himself in the Federal Magistrates Court at Parramatta and annexed a copy of Reasons for Judgment by Henderson FM[4] on 24th April 2009.[5]
[4] Now Judge Henderson
[5] Bancroft & Grattan [2009] FMCAfam 506
The Respondent said in his oral evidence that he had signed an agreement but he never signed the agreement relied on by the Child Support Registrar. He agreed that he had not at any time applied to a Court to set aside the agreement.
As to his financial situation, the Respondent said that he had travelled to the (country omitted) to attend a (omitted) Expo in (country omitted) and was there for about four or five days. He also said that he had visited (country omitted) earlier in the year.
Submissions
Ms Fusitu’a conceded in her submission that the Child Support Registrar could not produce an original copy of the agreement but had put into evidence the text of the agreement. She submitted that the text accords with the form of agreements used at the time. Further, the document accords with the amount of money the Respondent said in his affidavit that he was liable to pay.
Ms Fusitu’a submitted that the Respondent admitted that he took no steps to lodge an objection to the agreement nor did he apply to set the agreement aside under s.136 of the Child Support (Assessment) Act 1989 (Cth).
It was further submitted that the s.116(2) certificate was prima facie evidence that the amount of child support claimed was due. The Respondent, she said, had the financial capacity to pay the amount claimed.
The Child Support Registrar was also seeking an amount of costs in the sum of $6,036.00 calculated in accordance with Part 2 of Schedule 1 of the Federal Circuit Court Rules.
The Respondent submitted that his main argument and the reason why he had not paid was because he believed he signed an agreement that made the Mother liable. He said that he had been advised to apply to set aside the agreement but did not see why he should have to apply.
The Respondent further said that the (country omitted) trip was truly a business trip. He was working hard to pay off a debt to his parents. He did not agree that he should be made liable for interest charges on the unpaid amount or for the Child Support Registrar’s costs.
Conclusions
The Child Support Registrar is seeking to enforce payment of arrears and late payment penalties under a child support agreement that was recorded on the system of the then Child Support Agency in May 2006. Whilst the accuracy of the recording of the terms of the agreement was challenged by the Respondent, Ms Sacco’s evidence was unshaken.
A certificate under s.116(2) of the Child Support (Registration and Collection) Act 1988 was admitted in evidence, showing a total amount of $25,171.90 as outstanding on 8 December 2014. The sub-section states:
(2)The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.
The Respondent gave his evidence in a clear and forthright manner. My contemporaneous notes describe him as seeming like a decent man.
In the face of prima facie evidence that he owed an amount of $25,171.90 made up of child support arrears and $3,110.49, the Respondent had the task of showing that he was not liable. He asserted that the child support agreement relied upon by the Registrar was:
a)signed under duress; and
b)not the document that he signed.
Leaving aside the apparent conflict between those two assertions, it was up to the Respondent to prove one or other, if not both, of them. He was not legally represented, which was not to his advantage.
The Respondent did not seek to join the mother as a party so that his claim of duress could be put to her. He said that he had been advised, presumably by a lawyer, to apply to set the agreement but chose not to follow that advice because he did not see why he should have to do so. This was clearly a tactical error.
Section 136 of the Child Support (Assessment) Act 1989 allows a party to a child support agreement to apply to a court to set the agreement aside. Subsection 136(2) provides at paragraph (b) that:
If a party has applied under subsection (1), the court may set aside the agreement in accordance with the application if the court is satisfied:
…
(b)that another party to the agreement, or someone acting for another party:
(i) exerted undue influence or duress in obtaining that agreement; or
(ii) engaged in unconscionable conduct;
to such an extent that it would be unjust not to set aside the agreement;
It would appear that whoever advised the Respondent to apply to set aside the child support agreement gave him accurate advice. Regrettably, the Respondent chose not to follow that advice.
I am satisfied that the Child Support Registrar’s case has been made out.
Late payment penalties
The Respondent said that he did not wish to be liable for interest charges, or late payment penalties, on the child support arrears. That is not a matter within the jurisdiction of the Court and the Respondent will need to deal directly with the Child Support Registrar on that issue.
Costs
The Child Support Registrar seeks an order for costs in the sum of $6,036.00, calculated in accordance with Part 2 of Schedule 1 to the Rules. The Respondent opposes a costs order.
By the operation of s.105 of the Child Support (Registration and Collection) Act, costs in proceedings under that Act are governed by s. 117 of the Family Law Act 1975 (Cth) (see Hendy & Deputy Child Support Registrar[6]; Penman & Child Support Registrar & Anor[7]).
[6] (2001) 164 FLR 236; 27 Fam LR 641; [2001] FamCA 632
[7] [2013] FCCA 1045
The general principles that govern the Court’s discretion to award costs under s.117 of the Family Law Act 1975 were explained by the High Court of Australia in Penfold v Penfold[8] (see also Child Support Registrar & Kanavos[9] ).
[8] (1980) 144 CLR 311
[9] (2011) 44 Fam LR 422
The weight to be attached to the considerations in s.117(2A) of the Family Law Act is wholly discretionary and while no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order (Fitzgerald v Fish & Anor[10]). In the absence of any countervailing consideration, the fact that a party was “wholly unsuccessful” will ordinarily the making of a costs order against that party (Laurie & Child Support Registrar[11]).
[10] (2005) 33 Fam LR 123; [2005] FamCA 158
[11] [2009] FamCAFC 183
Subsection 117(2) of the Family Law Act provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection 117(2A) of the Act, make such order for costs as it thinks fit.
Section 117(2A) provides:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of the parties;
(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, 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 such offer; and
(g) such other matters as the court considers relevant.
In this case, there is some evidence about the Respondent’s financial situation.
Neither party is in receipt of assistance by way of legal aid.
There was nothing untoward about the way I which the parties conducted the proceedings. The progress of the matter was straightforward without any unnecessary applications.
No party failed to comply with a previous order of the Court.
There is no evidence of any written offer of settlement.
The relevant factor here is that the Respondent was wholly unsuccessful in the proceedings. As the Full Court of the Family Court held in Laurie & Child Support Registrar[12]:
The Child Support Registrar has established a justifying circumstance as required by s. 117 of the Family Law Act.[13]
[12] supra
[13] [2009] FamCAFC 183 at paragraph [125]
I am of the opinion that this circumstance justifies the making of an order for costs in favour of the Applicant Child Support Registrar.
The amount sought has been calculated in accordance with Part 2 of Schedule 1 of the Rules, with costs of $5,768.00 and disbursements, being the filing fee of $108.00 and the process server’s fee of $160.00, making a total of $6,036.00.
Orders
I will make the Orders as sought by the Child Support Registrar, including an order that the Respondent should pay the Child Support Registrar’s costs in the sum of $6,036.00.
I will allow three months to pay.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 13 July 2016
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