FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRISWELL & CHILD SUPPORT REGISTRAR (No.3) | [2016] FCCA 1609 |
| Catchwords: 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 |
| 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 19th 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…
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- Case
- [2016] FCCA 1609
- Decision Date
CaseChat Overview and Summary
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
1.
The oral Application made by the Applicant to reopen the proceedings for an Order for costs is dismissed.
2.
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.
3.
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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