FRISWELL & CHILD SUPPORT REGISTRAR (No.3) - [2016] FCCA 1609

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRISWELL & CHILD SUPPORT REGISTRAR (No.3)

[2016] FCCA 1609

Catchwords:
CHILD SUPPORT – Costs of Child Support Registrar.

COSTS – Whether refusal of offer of settlement warrants an order for costs – financial circumstances of Applicant – where financial circumstances relevant to consideration of matters under Family Law Act 1975 (Cth), s.117(2A) – impecuniosity of a party not necessarily a bar to costs order – where financial circumstances of party relevant to order for time to pay.

PRACTICE AND PROCEDURE – Application to reopen costs Application – where Applicant failed to comply with direction to file a submission within 21 days or at all – where oral application made on day judgment due to be delivered.

Legislation:

Family Law Act 1975 (Cth), ss.117, 117C

Cases cited:

Bixby & Bixby [2015] FCCA 816

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v

Fish & Anor (2005) 33 Fam LR 123[ [2005] FamCA 158

Friswell & Child Support Registrar [2016] FCCA 869

Friswell & Child Support Registrar [2016] FCCA 1545

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Robinson & Higginbotham (1991) FLC 92-209

Applicant:

MS FRISWELL

Respondent:

CHILD SUPPORT REGISTRAR

File Number:

WOC 521 of 2007

Judgment of:

Judge Scarlett

Hearing date:

28 June 2016

Date of Last Submission:

28 June 2016

Delivered at:

Sydney

Delivered on:

28 June 2016

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Mr Dean

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The oral Application made by the Applicant to reopen the proceedings for an Order for costs is dismissed.
Order (2) made in proceedings [2016] FCCA 1545 and handed down today allowing the Applicant three (3) months to pay the costs of $5,251.50 is discharged.
The Applicant is allowed twelve (12) months to pay the costs referred to in the above Order.

IT IS NOTED that publication of this judgment under the pseudonym Friswell & Child Support Registrar (No.3) 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

This is an oral Application by the substantive Applicant to reopen costs proceedings. The Application has been brought at the eleventh hour, as it was made immediately prior to the handing down of a decision as to whether the Applicant should pay the costs of the Child Support Registrar and, if so, the quantum of those costs.
The Application was opposed by Mr Dean for the Child Support Registrar.

Background

The circumstances of the matter that are relevant are that on 19^th April 2016, I made a decision whereby an application filed by the Applicant was summarily dismissed. In arriving at the decision, I had considered submissions made by the Respondent, the Child Support Registrar, about why an order for costs should be made if the application was to be summarily dismissed and I considered submissions by the Applicant…

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: [2016] FCCA 1609
Decision Date: 28 June 2016

CaseChat Overview and Summary

This matter concerned an application by the Applicant to reopen proceedings for an order for costs, following a previous decision by Judge Scarlett of the Federal Circuit Court of Australia. The dispute centred on the Applicant's failure to comply with a court direction to file submissions within a specified timeframe, leading to an oral application being made on the day judgment was due.

The primary legal issue before the Court was whether the Applicant's oral application to reopen the costs proceedings should be granted, particularly in light of their failure to comply with a court direction. A secondary issue, arising from the substantive costs order, concerned the relevance of the Applicant's financial circumstances, including potential impecuniosity, to the court's discretion in awarding costs and in setting terms for payment.

Judge Scarlett dismissed the Applicant's oral application to reopen the costs proceedings, finding that the Applicant had failed to comply with a clear direction from the Court. The Court also discharged the previous order allowing the Applicant three months to pay the costs of $5,251.50. Instead, the Applicant was allowed twelve months to pay these costs, indicating that while financial circumstances are relevant to the ability to pay, they do not necessarily preclude a costs order or the imposition of payment terms.

Orders

Orders of the court

The oral Application made by the Applicant to reopen the proceedings for an Order for costs is dismissed.

Order (2) made in proceedings [2016] FCCA 1545 and handed down today allowing the Applicant three (3) months to pay the costs of $5,251.50 is discharged.

The Applicant is allowed twelve (12) months to pay the costs referred to in the above Order.

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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