FRISWELL & CHILD SUPPORT REGISTRAR (No.2)
[2016] FCCA 1545
•28 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRISWELL & CHILD SUPPORT REGISTRAR (No.2) | [2016] FCCA 1545 |
| Catchwords: COSTS – Application for costs – where substantive Application was summarily dismissed – where no submission made as to why Applicant should not pay the costs of the Child Support Registrar. |
| Legislation: Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001 (Cth), Sch.1, pt.2, div.1 |
| Cases cited: Friswell & Child Support Registrar [2016] FCCA 869 |
| Applicant: | MS FRISWELL |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | WOC 521 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2016 |
REPRESENTATION
| Applicant: | No Appearance |
| Solicitor for the Respondent: | Ms Taah |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Applicant is to pay the costs of the Respondent Child Support Registrar fixed in the sum of $5,251.50.
The Applicant is allowed three (3) months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Friswell & Child Support Registrar (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 521 of 2007
| MS FRISWELL |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
Application for Costs
This is an Application for costs by the Child Support Registrar, arising from the summary dismissal of the Applicant’s Application on 19th April 2016 (Friswell & Child Support Registrar[1]). Order (2) made on that date was:
(2)Within twenty-one (21) days of the date of these Orders, the Applicant may file and serve a written submission showing cause why an Order should not be made requiring her to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 to the Rules.
[1] [2016] FCCA 869
No written submission has been filed or served. The Applicant has not given any information to the Court as to why an order for costs should not be made.
Costs in Child Support Proceedings
Costs in proceedings under the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) are dealt with in the same was as family law proceedings, which means that the Court considers the matters set out in s.117 of the Family Law Act 1975 (Cth).
If the Court makes an Order for costs, those costs will be calculated on the basis of the scale of costs set out in Division 1 of Part 2 of Schedule 1 to the Federal Circuit Court Rules 2001.
Consideration
The Child Support Registrar, in a written submission dated 17th February 2014 and filed in Court on 18th March 2014, submitted that the substantive Application should be dismissed and costs should be payable in accordance with Schedule 1 to the Rules.
In the decision of 19th April 2016 dismissing the Application, I considered the operation of s.117 of the Family Law Act 1975, and specifically considered the matters referred to in s.117(2A) of the Act at paragraphs [84] to [92]:
84.There is no evidence of the Applicant’s financial circumstances. It is unnecessary to inquire as to the financial circumstances of the Respondent, as it is an agency of the Commonwealth Government.
85.There is no evidence that any party is in receipt of a grant of legal aid.
86.There is nothing untoward about the conduct of the parties to the proceedings. Whilst the Applicant has made much of the fact that the Respondent’s written submissions were late, no injustice arises from that fact.
87.There is no evidence of a failure by either party to comply with a previous order of the Court.
88.The Applicant has been wholly unsuccessful in the proceedings.
89.The Respondent did make a written offer of settlement early in the proceedings. On 23rd January 2014 the solicitor then acting for the Respondent wrote an open letter to the Respondent about her claim, challenging the contentions in her Application and attempting to address what the Registrar understood to be her concerns. The letter forms Annexure “N1” to the affidavit of Mr N affirmed 28th January 2014.
90.The offer is contained in the final paragraph of the letter, paragraph 14, which says:
We also invite you to discontinue the Application. Should you do so on or before the next court date (28 January 2014(, the Registrar will not pursue his costs.
91.Prima facie, it would appear that the Respondent has made out a case for an order for costs. It is established that there only needs to be one factor established in s.117(2A) to allow the Court to form an opinion that there are circumstances that justify the Court to make an order for costs. In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish & Anor[2], the Full Court of the Family Court held at [41]:
…Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.[3]
92.Here, there are two factors which support the Registrar’s contention that an order for costs should be made against the Applicant. The Applicant will be given an opportunity to file and serve a written submission as to why an order for costs should not be made against her.[4]
[2] (2005) 33 Fam LR 123; [2005] FamCA 158
[3] (2005) 33 Fam LR 123 at 130 [41] per Kay, Warnick & Boland JJ
[4] [2016] FCCA 869 at [84]-[92]
No written submission has been filed or served. The Order made on 19th April 2016 gave the Applicant 21 days to file and serve a submission and that time has long passed.
I propose to make an order for costs against the Applicant in favour of the Child Support Registrar.
When the decision was handed down on 19th April 2016, Ms Taah, who appeared for the Child Support Registrar, submitted a memorandum of costs prepared in accordance with the Schedule. The costs were claimed on the following basis:
a)Item 1 up to completion of the first court date $2,157.00
b)28 January 2014 – Short Mention $269.00
c)Advocacy loading $134.50
d)18 March 2014 – Half Day Hearing $987.00
e)Advocacy loading $493.50
f)9 December 2014 – Short Mention $269.00
g)Advocacy loading $134.50
h)18 December 2014 – Short Mention $269.00
i)Advocacy loading $134.50
j)19 April 2016 – Short Mention $269.00
k)Advocacy loading $134.50
Total $5,251.50
The costs claimed are in accordance with the scale contained in Division 1 of Part 2 of Schedule 1 to the Rules. I will order that the Applicant is to pay the costs of the Respondent Child Support Registrar fixed in the sum of $5,251.50.
The Applicant has not provided any details of her current financial circumstances. I note the amount of the costs ordered, which exceed $5,000.00 and I will allow three months to pay.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 28 June 2016