COG15 v Child Support Registrar and Anor (No.2)

[2015] FCCA 3523

FEDERAL CIRCUIT COURT OF AUSTRALIA

COG15 v CHILD SUPPORT REGISTRAR & ANOR (No.2) [2015] FCCA 3523

Catchwords:
CHILD SUPPORT – Costs – whether the applicant should pay the first respondent’s costs – applicant wholly unsuccessful – applicant of limited means – applicant self-represented – no order for costs made.

Legislation:

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

Family Law Act 1975, s.117

Applicant: COG15

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: COH15

File Number: SYG 3263 of 2015

Judgment of: Judge Street

Hearing date: 23 December 2015

Date of Last Submission: 23 December 2015

Delivered at: Sydney

Delivered on: 23 December 2015

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. No order as to costs. 

NOTATION:

Please note that Order 1 has been amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

IT IS NOTED that publication of this judgment under the pseudonym COG15 v Child Support Registrar & Anor (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3263 of 2015

COG15

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

COH15

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the first respondent, Child Support Registrar, for costs in relation to proceedings which have been dismissed, pursuant to s.105 of the Child Support (Registration and Collection) Act 1988 (Cth), and s.117 the Family Law Act 1975 (Cth) applies, and it provides a general rule that each party to proceedings under this Act shall bear his or her own costs.

2. There are mandatory discretionary considerations that the Court must take into account under s.117(2) of the Family Law Act 1975, if considering whether to depart from the general rule.  I accept the applicant’s contention that he is financially destitute.  The applicant has said that he has already outstanding thirty to forty thousand, due, I assume, to the second respondent.

3. The financial circumstances of the parties are one matter that the Court must consider if determining whether to depart from the general rule.  The applicant did not have the benefit of legal assistance in the nature of legal aid, and I accept the applicant’s proposition that he may have been better represented by a lawyer in circumstances where his frustration with the legal system might have been able to be better controlled.  That was a frank and candid acknowledgement by the applicant and an insight to the applicant’s misbehaviour which is to his credit.  However frustration with the legal system stems from a lack of understanding of Court procedures and lack of self-restraint.  Frustration is not an acceptable explanation for misbehaviour.  All litigants must maintain appropriate standards of behaviour in Court and must not undermine the dignity or defy the authority of the Court. 

4. All litigation can generate stress for parties and it is of significance in this case that the applicant has a genuine acknowledged insight in relation to his own inappropriate behaviour and misconduct.  That acknowledgement and insight, I treat as purging the applicant’s misbehaviour in this case and is the reason why the applicant’s inappropriate conduct, both before this Court and before Judge Scarlett, should not of itself, give rise to any adverse order for costs. 

5. There is no issue that arises in relation to a relevant non-compliance with the orders of the Court.  It is the case, however, that the applicant has been wholly unsuccessful.  The nature of these proceedings are ones in which the Child Support Registrar participates for the purpose of providing a contradictor and ensuring that the material that was before the Tribunal is properly presented before the Court.

6. I have been informed by the solicitor for the first respondent, who is in Court, that the costs that have been incurred are, in fact, in excess of the scale amount of $6581, and counsel for the applicant seeks an order for costs in that scale amount.  There is no material before the Court indicating that there are relevant offers to be taken into account.  However, the Court does regard the nature of these proceedings as important in the context of the consideration as to whether an order for costs should be made. 

7. Notwithstanding that the applicant has been wholly unsuccessful and the role of the Registrar in assisting the Court, the legislative structure of the Act is one in which s.117(1) of the Family Law Act 1975 must be given weight in determining whether the general rule is displaced by the other considerations under s.117(2) of the Act.

8. While I accept that the applicant’s submissions were lengthy, the grounds identified in the appeal were a genuine endeavour by the applicant to identify what the applicant perceived as errors involving a question of law. Taking into account the above factors and what the applicant has said in relation to his financial circumstances, I am not satisfied that this is an appropriate matter in which the Court should depart from the general rule identified in s.117(1) in relation to each party bearing their own costs.

9. Accordingly, the Court makes no orders as to costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 January 2016