Henricksen & Janz (No.3)

[2008] FMCAfam 1343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HENRICKSEN & JANZ (No.3) [2008] FMCAfam 1343

CHILD SUPPORT – Application to set aside binding child support agreement – meaning of exceptional circumstances – evidence required to be adduced.

FAMILY LAW – Application to summarily terminate application to set aside binding child support agreement – principles discussed.

Child Support Assessment Act 1989, ss.100, 136(2)(d), 136(4)(b)
Child Support (Registration and Collection) Act 1988, s.116(2)
Family Law Act 1975, s.117(1), (2), (2A)
Federal Magistrates Act, s.17A
Federal Magistrates Court Rules, r.13.10

Bigg & Suzi (1998) 22 Fam LR 700
Bryant & Bryant (1996) FLC 92-690
Barrett & Benningfield [2008] FMCAfam 754
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gyselman & Gyselman (1992) FLC 92-279
Henricksen & Janz (No. 2) [2008] FMCAfam 1081
Hides v Hatton (1997) FLC 92-759
Jacobs & Vale [2008] FMCAfam 641
Nikac & Ors v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65
Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No.2) [2008] FMCA 947
Pelerman v Pelerman (2000) 26 Fam LR 505
Re Glendon Lane Pty Ltd and Australian Fisheries Management Authority (1995) 36 ALD 376
Re O'May and Australian Fisheries Management Authority (1999) 57 ALD 181
Re Secretary, Department of Family and Community Services and Selke (1993) 31 ALD 770 ; 18 AAR 457
Re Secretary, Department of Family and Community Services and Tran (1991) 23 ALD 449 ; 13 AAR 346

Applicant: MS HENRICKSEN

Respondent: MR JANZ

File Number: BRC 2587 of 2007

Judgment of: Wilson FM

Hearing date: 5 December 2008

Date of Last Submission: 5 December 2008

Delivered at: Brisbane

Delivered on: 12 December 2008

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Hirst & Company

Counsel for the Respondent:

Solicitors for the Respondent: Mylne Lawyers

ORDERS

1. The husband’s application filed 14 October 2008 be dismissed pursuant to s.17A Federal Magistrates Act, and rule 13.10 Federal Magistrates Court Rules.

2. The husband pay to the wife within 28 days the sum of $40,124.78 pursuant to the binding and registered child support agreement

   
   

   made between the parties dated 29 March 2006, and owing as at

   
   28 November 2008

   .

3. The husband pay the wife’s costs of and incidental to the wife’s applications filed 11 September 2008 and 28 November 2008, and the husband’s application filed 14 October 2008, to be taxed pursuant to Chapter 19 of the Family Law Rules on the party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Henricksen & Janz (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 2587 of 2007

MS HENRICKSEN

Applicant

And

MR JANZ

Respondent

REASONS FOR JUDGMENT

1. On 14 October 2008, the father filed an initiating application in this Court, by which he sought the following relief by way of final and interim orders:

   Final Orders:

   a)That pursuant to s.136(d) of the Child Support Assessment Act1989 as amended, the Binding Child Support Agreement between the parties dated 30/3/2006 be set aside;

   b)That any arrears be discharged; and

   c)That the applicant pay child support as assessed by the Child Support Agency from the arrears discharge date forward less any he may have already paid as at the date of the discharge order.

   Interim Orders:

   a)That the Binding Child Support Agreement dated 30/3/2006 be suspended pending the final decision of this application;

   b)That in the interim the applicant father pay child support at the rate assessed by the Child Support Agency; and

   c)That the obligation to pay any accrued arrears be suspended pending a final decision of this application.

2. By response filed 28 November 2008 the mother sought the following orders:

   a)

   That pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 the husband’s initiating application filed on

   
   

   14 October 2008 be dismissed;

   b)That if the wife’s application pursuant to paragraph 1 is unsuccessful that the husband’s application and his and the orders sought by him in his response filed on 10 October 2008 to be dismissed;

   c)That by way of enforcement the Child Support Agreement entered into by the parties dated 29 March 3006 the husband forthwith pay to the wife the sum of $40,124.78;

   d)That the husband pay the wife’s costs of and incidental to the application on an indemnity basis; and

   e)Such further or other order as this Honourable Court deems necessary.

3. The mother had previously filed an application, on 11 September 2008, seeking monies allegedly owing under the child support agreement.

4. On 25 November 2008, I made the following orders:

   a)That any application by the wife to summarily dismiss the husband’s application be filed and served by 28 November 2008, so as to be returnable at 2.00pm on 5 December 2008.

   b)That the applications filed 12 September 2008 and 14 October 2008 together with any application filed in accordance with order 1, be set down for final hearing with an estimated duration of half a day not before 2.00pm on 5 December 2008 in the Federal Magistrates Court of Australia at Brisbane.

5. When the applications came before me the parties’ legal representatives agreed that it was appropriate for the court to deal, first, with the mother’s application to dismiss the father’s application; secondly, with the father’s application to set aside the child support agreement; and, thirdly, with the mother’s application to enforce compliance with the child support agreement. As to the third matter, the solicitor for the father foreshadowed an application for an adjournment to put on further evidence. I will deal with that matter in due course.

6. On the hearing of the applications, the parties relied on the following evidence:

   a)The mother:

   i)Initiating application filed 11 September 2008;

   ii)Affidavit of the mother filed 11 September 2008;

   iii)Response filed 28 November 2008;

   iv)Affidavit of Wife filed 28 November 2008;

   v)Affidavit of Ms A filed 28 November 2008;

   vi)

   Transcript of father’s evidence before the Court on

   
   

   25 September 2008;

   vii)

   Letter mother’s solicitors to father’s solicitors dated

   
   

   26 November 2008 (exhibit 1).

   b)The father:

   i)Response filed 10 October 2008;

   ii)Application filed 14 October 2008;

   iii)Affidavit of father filed 10 October 2008;

   iv)Affidavit of father filed 14 October 2008;

   v)Financial Statement of father filed 10 October 2008;

   vi)Affidavit of father filed 24 November 2008;

   vii)Affidavit of father filed (in part) by leave 5 December 2008.

7. I have set out the material relied upon so that there is no uncertainty, given the large volume of material filed by both parties throughout the course of their various contests with each other. At the outset of the hearing I ruled two paragraphs of the husband’s affidavits inadmissible: paragraph 3 of the affidavit filed 14 October 2008, and paragraph 4 of the affidavit filed 10 October 2008 (with the exception of exhibit TJJ2 thereto). I also refused the father leave to rely on paragraphs 6 and 7 of his affidavit sought to be filed by leave on the date of the final hearing.

8. I also set out the material relied upon because it demonstrates that the father has had the opportunity, since 14 October 2008, to put on whatever evidence he wished to rely on in his application to set aside the child support agreement, or to oppose the mother’s principal application and has in fact put on four affidavits. That puts in context the father’s application for an adjournment of the mother’s principal application to enforce compliance with the child support agreement.

9. In her response, the mother makes specific reference to Federal Magistrates Court Rule 13.10, which provides:

   “The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b)    the proceeding or claim for relief is frivolous or vexatious; or

   (c)    the proceeding or claim for relief is an abuse of the process of the Court.”

10. Reference should also be made to s.17A Federal Magistrates Act 1999, which provides:

    “(1)  The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)  the first party is prosecuting the proceeding or that part of the proceeding; and

    (b)  the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

    (2)  The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)  the first party is defending the proceeding or that part of the proceeding; and

    (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

    (3)  For the purposes of this section, a defence or proceeding or part of a proceeding need not be:

    (a)  hopeless; or

    (b)  bound to fail;

    for it to have no reasonable prospect of success.

    (4)  This section does not limit any powers that the Federal Magistrates Court has apart from this section.”

11. In Pelerman v Pelerman (2000) 26 Fam LR 505 the Full Court of the Family Court considered that the power of summary dismissal would be rarely and sparingly used. To the same effect is the decision of that Court in Bigg & Suzi (1998) 22 Fam LR 700.

12. However, in Jacobs & Vale [2008] FMCAfam 641 at [13] Jarrett FM observed, correctly in my opinion, that the power conferred on this Court pursuant to the section and rule to which I have already referred, is much wider than that considered in Bigg and Pelerman. The power of summary dismissal there conferred extends to family law proceedings as well as proceedings in the Court’s general federal law jurisdiction.

13. There is some debate as to the way in which the court should exercise its jurisdiction to summarily dismiss a proceeding. In Ninatoca Pty Ltd & Anor v Kovari Professional Pty Ltd & Ors (No. 2) [2008] FMCA 947 I expressed the view that the legislation and rules now embraces a test that allows the court considerably more scope in all proceedings than the ‘traditional test’ in cases such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

14. In Ninatoca at [9], after reviewing the recent Federal Court decisions touching upon the proper construction of the Federal Court equivalent of s.17A of the Federal Magistrates Act, I said:

    “In my view, it is inappropriate on an application pursuant to s.17A of the FMC Act to embark upon a determination of any genuinely disputed questions of fact. A genuine dispute requires more than a bare denial of the opposing party’s facts. The court is permitted to resolve questions of law, where there is no dispute as to the facts, but may in the exercise of its discretion decline to do so if the resolution of the legal issue would be better informed by a trial of the facts. The court is permitted to resolve issues of fact in one party’s favour where the other party, despite having been given the opportunity to do so, has not offered any evidence to support its version of events. To do so invites a resolution on the undisputed evidence as it exists at the time of the application.”

15. It is common ground between the parties that there is currently a registered, binding, child support agreement made on 29 March 2006 and subsisting between the parties. A copy of the agreement is exhibit AEH1 to the affidavit of the mother filed 11 September 2008.

16. The father relies in his application to set aside the child support agreement on s.136(2)(d) Child Support (Assessment) Act 1999 which provides:

    “ in the case of a binding child support agreement that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.”

17. The solicitor for the mother relied on the decision of Jarrett FM in Barrett & Benningfield [2008] FMCAfam 754 at 58 where his Honour said:

    “Mr Benningfield does not demonstrate a significant change in his financial situation since the time the child support agreement was made.  To do so requires a demonstration of his circumstances at the time the agreement was reached and the demonstration of a change.  I am not satisfied that he demonstrates any change in his financial circumstances, at least for the worse.”

18. In my view authority is not needed to support the submission made. The statute is clear on its face. An applicant seeking to set aside a binding child support agreement under s.136(2)(d) of the Act must show, in addition to the existence of the binding agreement etc:

    a)The circumstances that prevailed at the time the agreement was entered into;

    b)The circumstances that prevail at the time the application is made to set the agreement aside;

    c)That exceptional circumstances have arisen between the two dates; and

    d)Because of such circumstances the applicant or the children will suffer hardship if the agreement is not set aside.

19. The solicitor for the mother submits that the father has failed to adduce evidence of subparagraph (a) just referred to. It follows, it is submitted, that the father cannot demonstrate any change in circumstances, nor that such change is exceptional.

20. In my view, in assessing that submission, I should have regard to the father’s evidence, taken at its highest, and any unchallenged evidence of the mother.

21. In his affidavit filed 10 October 2008, the father:

    a)Primarily responds to the mother’s affidavit filed 11 September 2008;

    b)Deals with the time that he has had care of the children;

    c)Asserts that the payment of $2167 per month (initially required by the child support agreement) is well in excess of the children’s needs;

    d)Accepts that he reduced child support payments to $225 per week;

    e)Says that he incurred monthly lease fees on a BMW motor vehicle that the mother refused to make available to him;

    f)Says that he paid lease payments on a laptop computer retained by the mother;

    g)Says that his cash flow and other obligations “preclude my making any extra payments”;

    h)Exhibits the financial statements of the [S] Trust for the financial year ended 30 June 2005 (with 2004 comparators);

    i)

    Exhibits a letter from Accountants for Free Enterprise dated

    
    

    28 August 2008 which states that the father’s 2006 taxable income was $51,155 and 2007 taxable income was $47,620; and that the Trust ‘total tax profit’ for 2006 was $52,699 and for 2007 $52,943;

    j)Exhibits a copy of the Trust tax return for 2006 that curiously omits page 2, but which on page 3 states an income identical to that referred to in the accountant’s letter;

    k)Says, at paragraph 9:

    “Given the factors applicable in the Child Support formula now my assessment may well be below the $225 per week. In the short term, irrespective of the outcome of my applications to the court to vary the Agreement or to offset the debt, I cannot pay any lump sum for anything at this time and, as indicated, cannot afford to pay at the rate of that agreement”.

22. The father does not state his financial position as at the date the child support agreement was entered into. He does not provide a copy of his own 2006 tax return. At best I can glean from the father’s evidence that he was operating a business through the Trust, and in the financial year in which the binding child support agreement was signed (towards the end of that financial year) his own income was $51,155, and the Trust income was $52,699.

23. I would not regard the matters referred to in subparagraphs (e) and (f) as constituting exceptional circumstances. If the father incurred liabilities on behalf of the mother that he can seek recourse for, there are remedies available to him. The matters referred to in subparagraphs (b), (c) and (d) are irrelevant to the applications before me.

24. The first affidavit of the father is long on assertion and short on detail. He says his cash flow and other obligations preclude him from making further payments. He does not descend to any detail of what is his cash flow, how it is derived, or whether it is stable or declining. He does not descend to any detail of his ‘obligations’ including the amount thereof, the nature of the obligation, when it was incurred, whether it can be suspended or any other details.

25. In his affidavit filed 14 October 2008, the father states:

    a)The tax returns for the Trust show a decrease in profitability between the 2003/4 and 2004/5 years when compared to the 2005/6 and 2006/7 years;

    b)The business cannot pay him a salary in excess of $51,000 per year and he cannot afford the child support payments on the money he receives be it by salary or drawings;

    c)That due to a combination of factors including the stress incurred with the ongoing court cases, the vendor re-entering the market under his own name, the market needs changing due to the current financial downfall and his own poor health, he has ceased trading as [S] Pty Ltd. The husband says he can no longer handle the stress associated with managing and directing a company;

    d)When he recommences working it will be for [P] Pty Ltd at a wage commensurate with the income he can produce.

26. The child support agreement was executed towards the end of the 2005/6 financial year. It is therefore beside the point that the Trust was performing less well in that financial year compared to the previous two. The father who was operating the business entered into the child support agreement with the ability of knowing how the business was performing. If he made the agreement in the expectation that the business would improve that is not a matter that should be visited on the mother. It would be a case of the father being disappointed with the bargain he made, because matters did not turn out as he had hoped. That is not a basis for setting aside a child support agreement: Bryant & Bryant (1996) FLC 92-690.

27. The father’s second affidavit is again short on detail. He does not set out in any detail his financial circumstances, which include his income but also his assets and liabilities, and demonstrate any change thereto. He does not provide any medical evidence of ill health.

28. In so far as the father asserts that he had ceased trading as [S] Pty Ltd by his affidavit of 14 October 2008, and will work as a wage earner for [P], the evidence of Ms A casts doubt on the veracity of the father’s evidence. It was largely unchallenged, although the father responded to it in his affidavit filed 5 December 2008, and changed some of his earlier evidence as a result. It demonstrates that the father remains a director of the company as at 26 November 2008, and that the company remains registered. The company [P] Pty Ltd has the same registered address as where the father and his partner are living, although the father was evasive about this in his evidence on 25 September 2008. [P] is a business operated by the father’s partner, and uses his expertise and connections. Internet searches performed by Ms A certainly strongly support an inference that there is a relationship between the business conducted by the husband through [S] Pty Ltd and [P] Pty Ltd. No financial information as to the performance of [P] Pty Ltd has been forthcoming.

1. In his third affidavit filed 24 November 2008 the father exhibits his personal tax return for the year ended 30 June 2008 and for the Trust. The financial statements for the trust show a profit in the 2007 financial year of $52,942.71 and for the 2008 financial year of $30,475.84. There are a number of expenses that the solicitor for the mother questioned but that is beyond the purview of the application for summary dismissal. The financial statements show that the trust has almost $30,000 in cash and an inventory of $73,565.49. If it has ceased trading as the father contends, there was no explanation as to why these funds and assets would not be available to the father. The trust also has motor vehicles of significant value. The father is entitled to $66,585.71 as a beneficiary of the trust.

2. The financial statements of the trust for the 2005 and 2006 financial years have not been put into evidence. The father’s 2006 tax return has not been put into evidence. No affidavit evidence has been adduced of the father’s financial circumstances as at the date the child support agreement was executed.

3. In my view, the absence of such evidence makes it very difficult to conclude that exceptional circumstances have occurred since 29 March 2006, because the starting point is not known.

4. Further, even if the father demonstrated that the financial circumstances had changed, he has to show two additional matters to enliven the discretion in s.136(2)(d) Child Support (Assessment) Act. The first is that the change of circumstances was exceptional. Neither party referred to any judicial or other authority as to what this term meant. The word commonly means unusual or out of the ordinary. It is curious that the word ‘exceptional’ is used in s.136(2)(d) of the Act, whereas ‘special circumstances’ is used in s.117. That phrase has attracted judicial interpretation in cases such as Gyselman & Gyselman (1992) FLC 92-279 and Hides v Hatton (1997) FLC 92-759. Ordinarily consistency in the interpretation of terms in a statute is a fundamental construct of statutory interpretation. The use of a different term would signify that the draftsman of the legislation in s.136(2)(d) intended not to use the concept of special circumstances but rather something different. That view is reinforced by the language of s.136(4)(b), which presupposes a two step process: first, the proof of exceptional circumstances, so as to set the earlier agreement aside; and, secondly, the proof of special circumstances to fix a new method or amount of child support.

5. The Administrative Appeals Tribunal has considered the meaning of “exceptional circumstances” in a number of cases where such a term is used in other Commonwealth legislation (see, for example, Re O'May and Australian Fisheries Management Authority (1999) 57 ALD 181, Re Glendon Lane Pty Ltd and Australian Fisheries Management Authority (1995) 36 ALD 376, Re Secretary, Department of Family and Community Services and Selke (1993) 31 ALD 770 ; 18 AAR 457 and Re Secretary, Department of Family and Community Services and Tran (1991) 23 ALD 449 ; 13 AAR 346). In each case the facts were examined to see whether they were exceptional rather than any useful generic guidelines being offered. Indeed as Wilcox J said in Nikac & Ors v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 at 81:

   “Like beauty, “exceptional circumstances” lies in eye of the beholder.”

6. A diminution in earnings of the father’s business would not, without more, be exceptional. The father suffering from a medical condition could amount to exceptional circumstances, depending on the severity of the condition and its effect on the father’s ability to generate an income. A collapse of the father’s business could constitute an exceptional circumstance depending on how it came about.

7. Unfortunately, the father’s evidence taken at face value does not permit the court to find exceptional circumstances in this case. The absence of medical evidence supporting a finding that the father would be unable to generate income commensurate with that he was capable of earning at the date the child support agreement was made, the absence of evidence to demonstrate that a reduction in earnings of the business was irreversible and caused by matters outside the father’s control, and the absence of evidence to show the father’s earning capacity in other areas leaves the court with no alternative but to find that on the evidence as presented the father cannot demonstrate exceptional circumstances.

8. The second matter the father would have to establish is that a continuation of the existing child support agreement obligations will cause him to suffer hardship. The father does not swear to that fact. The potential availability of resources referred to above tends to undermine the conclusion that it would.

9. The father’s evidence, taken at its highest, does not enable me to conclude that he will suffer financial hardship if the child support agreement continues.

10. In the circumstances, I conclude that the husband’s application to set aside the child support agreement has no reasonable prospects of success and should be summarily dismissed.

11. That leaves two outstanding matters for determination: first, the mother’s application for enforcement of the child support agreement, and, secondly, the question of costs.

12. Annexed to the mother’s affidavit filed 11 September 2008 was a certificate from the Child Support Agency pursuant to s.116(2) Child Support (Registration and Collection) Act1988, which stated that $33,706.28 was then owing. That was the amount sought in the mother’s application filed 11 September 2008.

13. Annexed to the wife’s affidavit filed 28 November 2008 was a further certificate that provides:

    “I hereby certify that the sum of $40124.78 is due and payable by MR JANZ and remains unpaid as at 27 November 2008 in respect of registered maintenance liabilities to the payee, MS HENRICKSEN, being:

    Child support debt of $40,124.78

    This amount is payable to the Commonwealth in relation to a registrable maintenance liability under section 30 (child support debt) of the Child Support (Registration and Collection) Act 1988.”

14. Section 116(2) of the Act provides:

    “The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.”

15. There is therefore prima facie evidence that the father owes $40124.78. The father’s solicitor sought an adjournment to put on further evidence regarding the amount owing. The father wanted to check the correctness of the calculations of the Child Support Agency. The solicitor for the mother opposed that course

16. In circumstances where the father has had every opportunity to put on whatever evidence he wanted to so as to challenge the mother’s claim over a period of almost three months, and where the father has been able to put on four affidavits including one of the day of the final hearing, and where it was clear from my orders that the matter was proceeding to a final hearing, I would not be prepared to grant the adjournment sought.

17. Accordingly, in the absence of any meaningful evidence to contradict the prima facie evidence adduced by the mother, I would make the order she seeks.

18. The mother seeks the costs of the applications before me. As the proceedings were brought under the Child Support legislation, s.100 of the Child Support (Assessment) Act is relevant. It provides:

    “(1)  The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act - this_act(other than proceedings under paragraph 79(a)) as if:

    (a)  the proceedings were proceedings under Part VII of that Act; and

    (b)  the proceedings were proceedings instituted under Part VII of that Act; and

    (c)  a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and

    (d)  a decree made in the proceedings were a decree made under Part VII of that Act; and

    (e)  matters arising in the proceedings were matters arising under Part VII of that Act; and

    (f)  any other necessary changes were made.

    (2) Without limiting subsection (1), Division 13A of Part VII (Consequences of failure to comply with orders, and other obligations, that affect children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court), of the Family Law Act 1975 apply to any decree made by a court under this Act as if the decree were a decree made by a court under Part VII of that Act.

    (3)  Where any difficulty arises in the application of subsection (1) or (2) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.”

19. That makes applicable ss.117(1), (2) and (2A) Family Law Act which provide:

    “1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

    (2)  If, proceedings under this Act, the court - court is of opinion that there are circumstances that justify it in doing so, the court - court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

    (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)  the financial circumstances of each of the parties to the proceedings;

    (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)  such other matters as the court considers relevant.”

20. In Henricksen & Janz (No.2) [2008] FMCAfam 1081 I discussed the principles attendant on the awarding of costs in general and indemnity costs in particular. I have had regard to the matters in s.117(2A) of the Act, particularly that the father has been wholly unsuccessful in his application, and in his resistance to the wife’s applications, and consider that an order for costs is appropriate. Neither party is in receipt of legal aid. I do not consider that an order for indemnity costs is appropriate. The circumstances of the present case do not have the features referred to by Sheppard J at paragraph 24.5 in the Colgate-Palmolive case to which I made extensive reference in my earlier judgment.

21. Accordingly there will be orders as set out at the commencement of these reasons.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:      Beverley Schmidt

Date:              12 December 2008