EW and JW
[2003] FMCAfam 361
•22 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EW & JW | [2003] FMCAfam 361 |
| CHILD SUPPORT – Departure application – application relates to child support paid eight years previously – where the respondent has spent paid child support on the children – substantial child support arrears incurred in later years – trustee appointed to sell the applicant’s home – application taken to establish a credit offset against subsequent child support arrears – application dismissed. COSTS – Unsuccessful applicant ordered to pay respondents costs. |
Child Support (Assessment) Act 1989, ss.3, 4, 98, 114, 117, 121
Gyselman (1992) FLC 92-279
DJM v JLM (1998) FLC 92-816
Carey (1994) FLC 92‑489
| Applicant: | EW |
| Respondent: | JW |
| File No: | PAM1093 of 2000 |
| Delivered on: | 22 July 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 21 July 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor Advocate for the Respondent: | Mr J Harman |
| Solicitors for the Respondent: | Harman & Co. |
ORDERS
The application filed 21 February 2003 is dismissed.
That the applicant pays the respondents costs in the sum of $4986.30.
Those costs are to be paid within 28 days of today.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1093 of 2000
| EW |
Applicant
And
| JW |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
EW (“the applicant”) filed an application on 21 February 2003 seeking an order departing from an administrative assessment of child support. His application related to an assessment for the child support year 1 July 1995 until 30 June 1996. An initial assessment calculated the applicant's liability to support the parties’ two children at $572.08 each month. Later an amended assessment issued that increased the applicant’s child support payments to $1141.83 each month. The amended assessment calculated the applicant’s liability on the basis that he had a child support income amount of $59,111. This reflects the applicant’s 1993/94 taxable income adjusted by 3.5% for inflation. The applicant’s assessable income was in fact $56,853.
For the same period JW (“the respondent”) was assessed as having a child support income of $18,500 which, after the disregarded income of $36,276 was taken into account, meant that she had no income for the purposes of calculating the applicant's liability. The respondent’s assessable income was in fact $14,997.
The applicant claims that the amended assessment was unjust and inequitable because it did not adequately acknowledge the respondent’s earning capacity and her assets. Specifically, he submits that the assessment should have treated as child support income the proceeds of sale of three pieces of real estate sold by her that year. The respondent’s taxable income for that year was $142,029 comprising capital gain of $136,323 and nett income from non capital gain sources of $5,706. The applicant claims that the child support assessment should have increased her child support income by the amount of the capital gain, that is $136,323. The applicant unsuccessfully made a similar argument in earlier child support departure proceedings concerning the 1996/1997, 1997/1998, 1999/2000 child support years.
Alternatively, it is submitted that the respondent had an earning capacity that was not recognised by the Child Support Registrar. He submits in essence that the respondent was able to work in the paid workforce as well as earn an income by letting the properties she sold.
The respondent opposes the application and asks that be dismissed.
Background facts
The parties married at Parramatta on 21 February 1981.
They have two children, M born 22 October 1982 and T born 2 December 1986.
At the respondent's instigation the parties separated on 18 December 1991. She left the family home at X, taking the two children with her. The parties have never resumed cohabitation and were divorced in about 1994.
On 22 October 1993, after a five day contested hearing, Baker J ordered that the applicant have 42.5 per cent of the nett matrimonial assets and the respondent have the remaining 57.5 per cent. Pursuant to the orders the applicant retained the former matrimonial home at
X, bank accounts of approximately $170,000 and his superannuation. The respondent received three pieces of real estate. Namely, land at L, a home previously owned by the applicant's late mother at Y and a house at Z, previously owned by the applicant's late grandmother.
Neither of the parties sought to appeal the property orders. In essence the effect of the orders was that the applicant retained his home and had available significant cash assets. At that time he was employed at the Q, apparently working part time.
The respondent had primary responsibility for the children in the sense that they lived with her and had access to the applicant. The respondent cared for the children full time and had not worked in the paid workforce for about 15 years. M was attending a local school and both parties were keen that O attends the same school. The respondent and children could not live on vacant land and moving to Y would have meant withdrawing M from her school and made access potentially difficult, at least geographically. The respondent says that the Z house was quite unsuitable for the family. Because she wanted to buy a home for herself and the children to live in, and also needed to pay legal expenses and other debts, the respondent sold the three properties.
It appears that settlement of the sale of all three properties was completed during the 1995/1996 child support year. Y and L sold for considerably more than Baker J found them to be worth in October 1993. Z sold for slightly less than its earlier valuation. L attracted a capital gains tax liability, while Z and L appear to have been capital gains tax exempt. This meant that during the 1995/1996 child support year, the respondent's taxable income increased. Having sold her three properties, the respondent bought a home at XX. In October 1995 she started a small bed and breakfast operation from a guestroom in her home. She had only one room available and says that most weekends she had a person or couple in residence. She stopped taking guests in early 1999. All income earned from her bed and breakfast venture was declared to the Australian Taxation Office.
On 31 December 1996 the applicant accepted a voluntary redundancy from Q. He received a total package of $60,971, which included $15,427 superannuation. Because he had child support arrears of $11,658.37 as at 31 December 1996, the Child Support Agency intercepted $9,897.76 of his redundancy payment on 6 January 1997. There were then only $244.40 arrears. On 8 January 1997 the applicant received a refund from the Child Support Agency of $4,161.63. The CSA advised that he then had no arrears outstanding, nor was he in credit.
On 7 March 1997 the applicant applied for a review of his child support assessment for the 1996/97 and following two years. He asked that his child support liability be reduced to nil for those years. Child Support Review Officer P considered this application on 25 May 1997. His notice of decision was published on 11 June 1997. The applicant is outraged that the Child Support Review Officer refused his application to reduce his child support to nil. Apparently, he believed information that he attributes to a financial adviser at Q that by taking redundancy he could minimise his child support liability. He was surprised that the Child Support Review Officer considered not only his actual income but also his earning capacity.
The applicant filed a departure application concerning the 1996/1997, 1997/1998 and 1999/2000 child support years in the Family Court on 31 July 2000. Those proceedings were transferred to this court and determined by Scarlett FM on 5 June 2001. Scarlett FM made the following orders:
1. The Notice of Decision of Review Officer P published on 11 June 1997 is departed from.
2. For the period 1 July 1996 to 30 June 1997 the annual rate of child support in respect of the children M born 22 October 1982 and T born 2 December 1986 is set at $13,606.00
3. For the period 1 July 1997 to 30 June 1998 the annual rate of child support in respect of the said children is set at $9,983.00.
4. For the period 1 July 1998 to 30 June 1999 the annual rate of child support in respect of the said children is set at $1,216.00
5. All other applications save as to costs are dismissed..
On 11 April 2002 the applicant lodged an application to change the assessment for the 1995/1996 child support year. On 26 April 2002 Senior Case Officer K issued a notice of decision by which his application was refused. By application dated 1 October 2002 the applicant applied a second time to change the assessment for the 1995/1996 child support year. Pursuant to s.98F of the Child Support (Assessment) Act 1989 by decision dated 7 November 2002, the Senior Case Officer D refused to make a determination changing the assessment.
On 20 October 2002 the applicant purported to lodge an objection to the K decision. I say purported because the objection provisions postdate the year with which I am concerned.
The Child Support Agency did not sit idly by and allow the applicant to build up child support arrears and penalties without trying to resolve this situation with him. The applicant received regular advice from the Child Support Agency about his increasing liability and requested that he reduce them. Eventually, the Child Support Agency took enforcement proceedings at the Local Court Family Matters. The enforcement proceedings resulted in a declaration that the applicant owed $23,574.39 to the Child Support Agency, $13,870.78 of which were arrears of child support while $7,713.61 related to late penalties. The differential related to moneys held but attributable to additional arrears. The Local Court Family Matters ordered that the applicant pay the amount owing within 28 days. In default a trustee was appointed to sell his home at X. The applicant was ordered to pay the Child Support Agency's costs of $1,993.90.
As he was dissatisfied with this decision the applicant sought leave to appeal to the Family Court. On 20 December 2002 Mullane J refused his application. The notice of appeal was dismissed and the applicant ordered to pay the Child Support Registrar's costs of $9,925.70.
The application has not paid the moneys due to the Child Support Registrar pursuant to the Local Court Family Matter’s orders, nor those due pursuant to Mullane J's orders. Various stay applications have been made by the applicant, all of which have been refused.
At the date of the hearing the applicant owes about $60,000 in child support, including penalties, and ordered adverse legal costs. He says that the effect of his application would be that any reduction in his liability for the 1995/1996 child support year would be credited to his child support debt. In effect, it would reduce the arrears that he has incurred in the years following his redundancy.
Although he did not formally quantify it, the gravamen of his application was that he wanted the child support liability for the 1995/1996 child support year reduced to nil.
The relevant law
The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act 1989. Section 3 contains the obligations that parents maintain their children. The objects of the Act are supplemented in s.4. They are well known and do not need to be recited. Each of the objects needs to be borne in mind when deciding an application under the Act. When interpreting the Act it should be construed to the greatest extent, consistent with the attainment of its objects. Sections 114 and 121 identify that the objects of Divisions 4 and 5, Pt VII include:
a)that children have their proper needs met from reasonable and adequate shares in the income earning capacity of property and financial resources of both of their parents; and,
b)that parents share equitably in the support of their children.
The Full Court of the Family Court in Gyselman (1992) FLC 92-279 set out a three-step process that Courts must follow in determining an application for a departure order under s.117. The first step is whether one or more of the grounds for departure in s.117 is established. If so, the next step is whether it is just and equitable within the meaning of s.117(4). The final consideration is whether it is otherwise proper within the meaning of s.117(5) to make a particular order.
In DJM v JLM (1998) FLC 92-816 the Full Court, when considering a child support departure application, outlined the manner in which a Court might properly base its decision on earning capacity rather than actual income. It is clear from the case law that the Court can take into account earning capacity in situations other than those in which a person has deliberately weakened his or her economic position in an attempt to avoid their responsibilities.
Clearly, the facts of each case must be considered individually. Decisions seem to focus on whether the person has acted reasonably in all of the circumstances of the particular case. What is reasonable must be determined not only in the light of the particular facts, but also in light of the particular area of law involved. In child support cases an important part of the context for determining what is reasonable is the explicit statement of the objects of the Act in s.4 in which there is reference to the parents' capacity to provide financial support.
Thus, a different answer to what is reasonable may be given in spouse maintenance as compared to child support proceedings. Partly, this is because child support legislation prioritises the obligation of the parents to support their children.
In the special circumstances of the case has the applicant shown a ground for departure?
I now turn to the first question that must be answered in this case. The application is mounted pursuant to s.117(2)(c)(i). The focus of the applicant's case was on his actual income and the money received by the respondent when she sold her properties. The respondent says these moneys are a once only and unusual payment that did no more than temporarily alter the nature of her assets. Having sold the properties, the respondent discharged debts, bought a home and put aside savings that she used to meet her and the children's daily living expenses. Thus she says she contributed from her assets a reasonable share of the children's day-to-day living expenses over a number of years. She says that if the assessed child support takes into account her assets, it should also consider the applicant's.
The starting point for the assessment of child support is past taxable income. During the 1993/1994 child support year the applicant was employed part-time. It seems likely that he completed a s.60 estimate to the effect that his 1995/1996 taxable income would roughly equate to that earned during the previous year. Because he worked full-time during the 1995/1996 child support year, his taxable income increased. When he lodged his taxation return, the Child Support Registrar was obliged to complete a reconciliation between his estimated taxable income and his actual taxable income. This resulted in an amended assessment that retrospectively increased his child support liability from $572.08 to $1,141.83 per month.
Doing the best that I can with the evidence provided by the applicant, which with respect, was in many respects unsatisfactory, I find that his financial circumstances during 1995/1996 were as follows. He earned $51,696 salary as a lecturer and interest on cash investments of $5,725, giving a gross income of $56,853. He paid tax of $15,712.60. The applicant owned his home at X which he says was valued at $130,000 in 1993. I do not have reliable evidence of its value in 1995/1996. However, it is likely that just as the respondent's real estate located in the same general vicinity increased in value without capital expenditure, the applicant's did too. The extent it did so I do not know.
The applicant did not disclose what remained of his $170,000 savings. However, as his cash investments produced interest of $5,725.00, I am satisfied that he still retained the majority of it. Other than about $20,000 owing on a registered mortgage to the National Australia Bank, there is no evidence that the applicant had additional liabilities. No doubt the applicant had daily living expenses, the quantum of which I do not know.
During the 1995/1996 child support year the respondent received social security, such child support as the applicant paid, interest and from October 1995 income from her bed and breakfast venture. Her social security benefits varied by reference to her income from the bed and breakfast venture. I cannot take her social security income into account for child support purposes. During the 1995/1996 financial year her taxable income was $142,029. The children were 12 and 9 years and her costs included their expenses. I do not have precise details of the expenses incurred, however I am satisfied that, to a far greater extent than the applicant did, she used her income and drew down on capital resources to meet not only her living expenses, but also the children's.
I do not have precise selling figures or settlement dates for the three properties. The respondent does not challenge the applicant's assertion about the selling prices and it seems from his evidence that the properties sold for about $700,000 in total. From this, the respondent needed to pay selling costs and Capital Gains Tax of $37,706.85. An unspecified sum was paid to the applicant's brother as apparently he had an equitable interest in the Y and/or Z properties. After payment of selling costs, the debt to the applicant's brother and legal fees incurred during the s.79 proceedings the respondent’s assets were probably worth more than the applicant’s.
The applicant focussed his submissions on the capital gain and the discrepancy between the value of the respondent’s assets in 1993 compared to 1995. As to the later, he appeared to claim that the growth in the respondent’s assets had revealed that the s.79 orders were unfair, if not at the time, then subsequently. If I understood this submission correctly, I do not accept it. The significant issue is that both parties entire financial circumstances are taken into account when determining the level of child support payable by the applicant for their two children. Not just income or only real estate. Treating the capital gain as income and taking into account in one year would throw the income based formula out of kilter. In my opinion as the sale proceeds were used to buy a home and to provide a nest egg for future living expenses, it is more appropriate that the capital gain is treated as property for child support purposes. This is because it was a one off payment derived from the sale of assets received pursuant to s.79 orders the majority of which appears to have been reinvested in a home. It would also be incorrect to focus only on the short period that the respondent held the money as cash. The nature of the asset changed and the court must look at the entire circumstances surrounding the acquisition, realisation and use of the asset. I am conscious that the Income Tax Act treats the realised capital gain as income. This does not require that the Court treat it likewise on a departure application. To the extent that the respondent’s assets produced income, that is, interest and moneys from the bed and breakfast venture, that is treated as child support income. Because the respondent disclosed this income in her taxation return the amended assessment and later review did too.
The applicant submitted that the respondent should be assessed by reference to her alleged earning capacity. In essence he said, if he had to work in paid employment, so should the respondent. He ignored that the respondent had the full-time care of their two children and that she had not had paid employment for about 15 years. His submission disregards that she was then undertaking librarian studies, which were undertaken to enable her to earn an income upon graduation.
I agree with Senior Case Officer P's analysis of the respondent's earning capacity. He said:
“Mr EW raised the question of Mrs JW's earning capacity during the hearing. He agreed that she has not done paid work for about 15 years, but says that she would be able to obtain work as a domestic in hotels at least every second weekend when he has the children with him. Ms JW says that she has started a bed and breakfast in her home to earn some money and is completing a degree in library studies. She says that once she completes her studies, she will be looking for part-time work in local libraries.”
The applicant said that the respondent could have earned an income by tenanting either Y or Z. There was no evidence as to the nett return that either of these properties may have returned. This submission ignores that the respondent needed to buy a home as well as pay significant debts. The manner in which she structured her and the children's living arrangements was appropriate and has stood them in good stead. In these circumstances I am not persuaded that her decision to sell the properties was unreasonable. I am not satisfied that the applicant has demonstrated that the respondent had an earning capacity greater than her actual income earned in 1995/1996.
Neither party suggests that either child had any income, earning capacity, property or financial resources during 1995/1996.
It has been difficult for the parties to give precise details about aspects of their financial circumstances during 1995/1966. As it concerns circumstances eight years ago this is not surprising. The respondent put considerably greater effort into trying to do so than the applicant. Excluding the capital gain made from the sale of properties, the applicant's actual income in 1995/1996 was considerably greater than the respondent's actual income. The respondent had property that was more valuable than the applicant’s, the extent of which is somewhat uncertain. In my opinion, the circumstances of this matter are akin to Carey (1994) FLC 92-489. In that case, Kay J determined that special circumstances were made out because the Child Support Registrar assessed as income a one-off retrenchment package. The analogy, in my opinion, is apposite. The applicant carried the onus of proving the facts that would establish a ground for departure. Because he waited so many years before bringing his departure application this task was difficult. A difficulty of his own making. In these circumstances, when I compare the comparative positions of the applicant's income, property and superannuation with the respondent's income and property the applicant has not established that the administrative assessment resulted in an unjust and inequitable determination of the level of child support.
Is it just and equitable to make a departure order?
Had the applicant been able to establish a ground for departure he would then have needed to demonstrate that it was just and equitable to make a departure order. To the extent that I was able to, I have already made findings about the parties' financial circumstances in 1995/ 1996 and do not repeat them.
Neither child had any income, property or financial resources of their own. Presently M is studying overseas and although the respondent has no legal obligation to do so she contributes to her support. O is still at school and overwhelmingly financially reliant upon the respondent.
Both parties have completed financial statements which material is not subject to challenge. I accept their evidence as to their current financial positions.
The applicant works as a student nurse and lives in the former matrimonial home. He has exhausted his savings and has a debt of about $60,000 to the Child Support Agency. His home is subject to an order for sale which order it seems may be given effect to in the not-too-distant future. The applicant emphasises that he is in a poorer financial situation than the respondent. I accept his submission. However I am comfortably satisfied that the applicant’s current financial difficulties arise because he conducted a well-orchestrated campaign to minimise the payment of child support. He emphasised that the respondent owns her own home and has secure well paid employment. By comparison he earns a lower income and his home is under threat of sale by the trustee. Thus he claims that refusing the application will result in hardship. The respondent submits that granting the application will cause her hardship.
The parties’ current circumstances result from the following:
a)The respondent focussed upon providing financially for herself and the children.
b)She undertook further studies to enhance her earning capacity.
c)The respondent managed assets wisely so that she did not jeopardise home ownership
d)She ensured that she and the children lived within her means.
e)The applicant tried to avoid child support.
f)He took redundancy, acting on the advice of a financial adviser, that this was an opportunity for him to reduce his future child support liability.
g)He failed to pay child support as assessed and has built up a large child support debt.
For other reasons it may be that taking redundancy was reasonable. When he took redundancy the applicant also saw an opportunity to avoid child support. However, the applicant was aware from at least early 1997 that he would be required to make a proper contribution to his children's support during their minority. It appears to me that he has done everything within his power to ensure that he did not meet that obligation to any reasonable degree. I am satisfied that because the applicant’s reduced income and limited assets is likely to directly result from his determination not to pay adequate child support that refusing his application does not amount to hardship to him.
The respondent has worked hard to acquire skills that would enable her to produce an income that meets her own needs and enabled her to contribute to the children’s expenses. She has drawn down to a considerable extent on her capital resources in order to meet the children's day to day living expenses during the years that the applicant made paid minimal child support. Granting the applicant’s departure application will result in a manifestly disproportionate contribution by her to the children’s expenses. In circumstances where she has spent the child support on the children and ordered her affairs in anticipation that child support payable in subsequent years will eventually be paid as assessed, it would cause her hardship if the application were granted.
The objects of the Act are important when determining justice and equity. I am satisfied that in the circumstances of this case, a just and equitable result is that both parties contribute meaningfully to the costs of the children for the 1995/1996 year. The amended child support assessment delivered this result. Granting the application would cause hardship to the respondent.
Is it otherwise proper to make a departure order?
I will consider nonetheless whether it would be otherwise proper to make a departure order. The answer to that in the circumstances of this case is unarguably no. Both parties have an obligation to maintain the children. The assessment as it operated during 1995/1996 resulted in an outcome whereby both parties contributed in a meaningful way from their income and property to the support of their children that year.
The applicant drew on his income in order to do so whilst the respondent needed to draw on assets. The circumstance whereby during the year the respondent had greater cash assets than the applicant did, does not mean that she should retrospectively make a disproportionately greater contribution to the children's expenses. In some cases, this may be reasonable. This is not one of them.
The 1995/1996 child support year appears to be one of the few years where the applicant actually paid the child support that he was liable to pay. True it is, this involved the Child Support Agency intercepting moneys due to him. The respondent spent all of the paid child support on the children. The orders sought by the applicant in my opinion would result in the respondent meeting the entirety of the children's costs that year without contribution by him. That would not be a proper outcome and is inconsistent with the objects of the Act. I am satisfied for all of these reasons that his application should be dismissed. I take into account that the application is made eight years after the child support was assessed and paid. During intervening years the applicant sought to depart from later assessments and to some extent allowed the respondent to order her financial affairs on the basis that at least this year’s child support was free from challenge. This weighs heavily against granting the application.
Neither child received any payment of the type identified in s.117(5)(b)(i) or (ii).
Although there is no time statutory time limit that constrains departure applications years later, I can take delay into account. The catalyst for this application is the applicant’s last attempt to limit the consequences of his failure to pay assessed child support, fines for late payment and costs orders incurred in subsequent years. During earlier proceedings he indicated that he was content that the 1995/96 amended assessment had been appropriate and disavowed any intention to challenge it. In these proceedings he made it quite plain that he expects that the trustee will shortly move to sell his home and he thought that this was a way to limit the amount payable to the respondent. This reinforces my comfortable satisfaction that granting the application would not be proper. This case demonstrates that there ought to be some statutory barrier that limits the time within which a departure application can be started. It is very difficult for most respondents to try and reconstruct necessary financial records years after the end of the relevant child support period has expired. People in the position this respondent found herself in have to incur significant expense in order to do so. In my opinion the child support legislation ought to provide that an applicant for a departure order must challenge all earlier assessments that they wish to review at the same time. In this case the respondent, Child Support Agency and the court have twice applied considerable resources that should have been taken up once. The legislation ought not to accommodate challenges made to earlier assessments when later years have been similarly challenged.
Costs
The respondent asks that the applicant pay her costs of the proceedings. The applicant says that no order should be made. He emphasises that ordinarily parties will pay their own costs. When a Court is considering what order, if any, it should make on an application for costs, the Court must consider the matters contained in the s.117(2A).
Dealing with those matters seriatim. I have already made findings as to the parties' current financial circumstances and do not repeat them. The totality of the respondent’s financial circumstances is superior to the applicant's and the application of subparagraph (a) favours the applicant.
Section 117(2A)(b) does not arise.
Section 117(2A)(c) concerns the conduct of the parties. In my opinion, it is relevant that yesterday's hearing took much longer than it needed to. The applicant is an experienced litigant when it comes to child support departure applications, appeals and enforcement. He is familiar with the Child Support (Assessment) Act 1989 insofar as it relates to departure and enforcement proceedings. He knew that he carried the onus of proving special circumstances concerning the 1995/1996 financial year.
Time and again he attempted to traverse matters that were neither relevant, or at times appropriate during the hearing. I have no doubt that the proceedings were lengthened because of it. I take into account that the applicant represented himself. However, he went sufficiently beyond the bounds of reasonableness that I take into account the half day that I am satisfied he wasted.
Section 117(2A)(d) does not arise.
Section 117(2A)(e), this is the pivotal section as far as the respondent is concerned. The applicant, she submits, has been wholly unsuccessful in the proceedings. That is unarguably so. Relevantly, before the applicant started these proceedings he had completed departure applications for subsequent years, including not only administrative review procedures, but challenged the outcome in the courts. His familiarity with the relevant law should have been called upon as he contemplated taking this action. His past failures should have indicated the need to take legal advice before starting this action. He disregarded what he needed to prove even though familiar with the legislation. The subparagraph favours of the respondent.
Sub-paragraph (f) does not arise.
Section 117(2A)(g), I take into account that many of the issues, that is, the respondent's earning capacity and the fact that she had realised assets at a value greater than they were worth during 1993 had been the subject of departure applications in later years. The applicant had the opportunity to consider carefully the manner in which similar arguments had been dealt with by other tribunals. Apparently, he chose not to do so. If he wanted to challenge the 1995/1996 assessment he could have done so when he challenged later years. None of the facts that he relied on in this hearing arose after his later actions were completed. In all of the circumstances I am satisfied that the applicant should pay the respondent’s costs. The costs claimed accord with Schedule 1 of the Federal Magistrates Court Rules.
I must consider the time within which the order for costs is payable. The applicant asks that he have two years to pay the costs ordered. His approach reveals his disregard for the effect that his actions have on the respondent. I am not satisfied that it would be reasonable to have the respondent wait two years before the costs she has incurred are repaid. The applicant’s track record with respect to meeting his financial obligations, insofar as they relate to child support and associated costs, is regrettable. I accept that it is likely that the applicant will not pay these costs voluntarily and that the order will probably need to be enforced. In my opinion, the respondent should be in a position, sooner rather than later, to take such action as she may be advised to take in order to recover the costs due to her by the applicant. It is also reasonable that the Court recognise that because the moneys are unlikely to be paid other than through enforcement proceedings, that interest runs on those moneys at an appropriate rate from an appropriate time. I will make orders that give the applicant one month within which to organise his affairs so that he can realise capital assets, if he needs to do that, or otherwise, raise borrowings to support the repayment of the costs order.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 26 August 2003
0
0
0