Hopkins & Shorley
[2023] FedCFamC1F 534
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Shorley [2023] FedCFamC1F 534
File number(s): TVC 539 of 2011 Judgment of: BAUMANN J Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – COSTS – Long running litigation – Applicant files Notice of Discontinuance – In the unique circumstances of this case a costs order is not justified – Application for costs dismissed Legislation: Administrative Decision (Judicial Review) Act 1977 (Cth)
Child Support (Assessment) Act 1989 (Cth) s 100
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Butler v Child Support Registrar [2022] FedCFamC2G 491
Dixon v Child Support Registrar [2017] FCCA 1540
Hopkins & Shorley & Anor (SSAT Appeal) [2014] FCCA 158
Paxton & Child Support Registrar & Anor (Costs) [2016] FamCAFC 158
Penman & Child Support Registrar [2018] FamCA 252
Division: Division 1 First Instance Number of paragraphs: 27 Date of last submission/s: 27 October 2022 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second Respondent: Litigant in person ORDERS
TVC 539 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOPKINS
Applicant
AND: CHILD SUPPORT REGISTRAR
First Respondent
MS SHORLEY
Second Respondent
order made by:
BAUMANN J
DATE OF ORDER:
30 June 2023
THE COURT ORDERS:
1.That the First Respondent’s costs application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hopkins & Shorley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The parties in this matter have been involved in litigation in Courts exercising family law/child support jurisdiction for over 28 years. Their two children are both approaching their 30th birthdays.
Since at least June 2011, when the father commenced fresh parenting proceedings when a child was over 16 years of age, and after his parenting applications were dismissed by O’Reilly J on 2 July 2012, the ongoing conflict has essentially involved child support issues.
This initial phase of child support proceedings ended on 17 February 2014 when Judge Coates dismissed two child support appeals.
The background to the Application filed by the Applicant, Mr Hopkins, on 16 July 2019 (amended 13 May 2020), is summarised as follows:
(a)The Applicant sought final orders as follows:
1.That the undertakings dated 4/6/2004 are longer valid and do not apply.
2.That pursuant to sec[t]ion 7 of the Administrative Decisions (Judicial Review) Act 1977 I apply to the Federal Circuit Court for an order of review in respect of the failure of the Child Support Agency to make the decision within that required period (60 days) to the objection made in the letter dated 19/02/2019.
3.That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave is granted to depart from assessments of child support payable by the applicant [Mr Hopkins] to the respondent [Ms Shorley] for the child [C] born […] 1995 for the period from 23rd August 2012 to 15th November 2013. Pursuant to section 118 of the Child Support (Assessment) Act 1989.
4.That for the period 23rd August 2012 to 15th November 2013, the child support income of the applicant [Mr Hopkins] be set at $320 as set by Sec 66 “Minimum annual rate of child support”.
(b)The Child Support Registrar characterised the relief sought as:
(i)the Application for release from the 2004 undertakings;
(ii)the Child Support (Assessment) Act 1989 (Cth) (“the Child Support (Assessment) Act”) s 112 leave Application; and
(iii)the departure Application for the period of 23 August 2012 to 15 November 2013.
(c)The Court transferred the Administrative Decision (Judicial Review) Act 1977 (Cth) Review (“ADJR”) Application to the Federal Circuit Court of Australia (as it was then known) on 23 October 2020 having formed the view that the Family Court of Australia (as it was then known) did not have original jurisdiction to entertain the Application. The other Applications then remaining before the Court, including a cross-Application by the Respondent mother, Ms Shorley, filed 29 May 2020, that the Applicant be declared a vexatious litigant were all adjourned for final hearing to 3 February 2021.
(d)The Applications were the subject of submissions on 3 February 2021, however during the period Judgment was reserved, the Applicant filed a Notice of Discontinuance. The Respondent mother did not press for her cross‑Application to be determined and on 1 September 2022 the Court made the following procedural Orders:
1.That the Court noting Judgment has been reserved and since being reserved the father has, on 26 July 2022, filed a Notice of Discontinuance:
a.the Initiating Application filed 16 July 2019 (transferred to the Family Court of Australia (as it was then known) on 8 October 2019) be dismissed by reason of the Notice of Discontinuance filed on 26 July 2022;
b.if the First Respondent or Second Respondent wish to pursue an application for costs, such application be made by way of written submissions filed and served by 4.00pm on 29 September 2022 (with such submissions to cover both liability for costs and quantum of costs); and
c.if such costs application is pursued, then the Applicant father shall file and serve by no later than 4.00pm on 27 October 2022 any written submissions in response.
2.That unless otherwise ordered, any costs application, if pursued, will be considered on the papers in chambers.
In compliance with the directions I have read and considered:
(a)submissions filed 29 September 2022 by the Child Support Registrar seeking that the Applicant pay their costs fixed in the amount of $12,615.10 within 30 days;
(b)submissions filed 21 October 2022 by the Applicant seeking an order that the costs Application be dismissed;
(c)the mother filed no submissions and seeks no order as to costs; and
(d)no submissions in reply were filed, or leave to do so sought.
PRINCIPLES
The principles to be applied when a Court is asked to make an order for costs is well settled. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings generally each party shall bear their own costs. It has been settled principle that proceedings under child support legislation are also subject to the legislative pathway under s 117 (see s 100 of the Child Support (Assessment) Act. In this case, there are both Applications under the Act (the 2004 undertakings issue) and the child support legislation.
If, in the Court’s opinion, the circumstances justify an order for costs (effectively departing from the usual rule) then after consideration of the s 117(2A) factors as relevant, the Court may make such orders as to costs, including indemnity costs as the Court deems to be just. Under r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court can consider fixing costs, rather than imposing upon the parties a further obligation to have costs assessed or taxed.
With these principles in mind, I make the following findings in respect of the relevant s 117(2A) considerations.
Financial circumstances
The Registrar is a statutory office holder responsible for the administration of the child support scheme. The Applicant’s current financial position is not clear on the evidence, however in his submissions he says he is unemployed and has been since 2020 and is aged 64 years. In support of his Application for departure, at paragraphs 11 to 14 of his submissions filed 13 November 2020, he says his taxable income for the 2019/2020 tax year was $22,272. Although the Applicant’s modest financial circumstances is a relevant consideration, the impecuniosity of a litigant does not mean a costs order should not be made (see Penman & Child Support Registrar [2018] FamCA 252 at [100]).
Neither of the parties are in receipt of legal aid.
The conduct of the parties
The Registrar submits at paragraphs 18 to 22 that the Applicant’s conduct in bringing an unmeritorious Application that substantially sought to agitate issues previously determined, weighs in favour of a costs order being made. In support of that submission, reference is made to earlier Judgments, in at least child support proceedings where:
(a)Judge Coates in Hopkins & Shorley & Anor (SSAT Appeal) [2014] FCCA 158 characterised the Applicant’s Application as being that he “simply appears to using the procedure to abuse her” when dismissing two appeals from decisions of the Australian Administrative Tribunal (AAT);
(b)Judge Cassidy in Dixon v Child Support Registrar [2017] FCCA 1540, refused leave to commence an application for judicial review out of time, referring to the Applicant’s continual persistence in challenging “almost every decision made by the Registrar… dating back to 1995”;
(c)Judge Tonkin in Butler v Child Support Registrar [2022] FedCFamC2G 491 where her Honour dismissed a Notice of Appeal (Child Support) filed by the Applicant on 5 January 2022 (which was after the proceedings before this Court were filed in July 2019), on the basis that it was an abuse of the Court’s process, finding (at [27]) that the Applicant sought to “re-litigate previous matters to serve a collateral purpose of perpetuating litigation”.
In respect of each of the above Court decisions, only in the matter reported as Dixon v Child Support Registrar [2017] FCCA 1540, was the Applicant ordered to pay costs (in a sum of $6,948). I have no evidence about the payment or otherwise of those costs – although I note that attached to the Applicant’s submissions is a Child Support Account Statement issued September 2022 claiming a current debt of $62,039.91 is owed by him. How such a debt (which likely already includes previous costs orders) is capable of enforcement is unknown.
The Registrar submits that as the Applicant failed to put on any of the evidence relevant to a consideration of whether he should be released from the 2004 undertaking (as identified by Judge Cassidy), his current Application in respect of that undertaking “would have enjoyed no greater prospects of success”.
In response to this argument, the Applicant submits that:
(a)at paragraphs 10 to 22, the Applicant continues to assert that the Registrar failed to comply with the objection process; incorrectly assessed him to pay child support at a rate equal or greater than the Newstart Allowance; failed to properly record the change of his circumstances and the liability to reflect him receiving Newstart allowance; and in failing to properly record his receipt of Newstart allowance he was not automatically assessed to pay the minimum annual rate of child support.
In respect of the Application for child support departure, he asserts that after bringing the Application on 15 November 2019, the Child Support Agency (“CSA”) formally published a decision on his objection/review, which I understand he has accepted. He submits that the decision by him to file for departure only was made because the CSA had failed to comply with time limits as imposed by the Child Support (Assessment) Act. In summary, at paragraph 21 the Applicant contends that he:
has every right to refuse to accept the assessment as made by the Registrar/CSA, when the Registrar/CSA have clearly failed to comply with their legal obligations to ensure the applicant has the capacity to pay the child support debt…
…and that the correct method of assessment has been used.
Although not articulated in response (but made more in anticipation) the Registrar reminded the Court of the decision in Paxton & Child Support Registrar & Anor (Costs) [2016] FamCAFC 158 where, in that case, the Court concluded that the Registrar should not be required to bear the costs of reasonably defending an unreasonable attack.
In respect of the Application to discharge the 2004 undertakings, again the position advanced by the Registrar is such that an application had been run previously without success and the fate of this Application was likely to be the same.
At paragraphs 23 to 37, the Applicant makes submissions about his Application relating to the undertakings given in 2004. He is correct to distinguish the child support Application, per se, when as I accept he properly asserts, no child support applications were alive. The undertakings were in respect of a suit of parenting Orders made – which parenting Orders expired in 2013.
As the Court was relieved of the need to publish any reasons for the disputed issues heard on 3 February 2021 (because of the Applicant’s filed Notice of Discontinuance), I do not regard it as either necessary or helpful to offer some form of preliminary view about the utility of the husband’s Application in respect of the undertakings which more concerned the previous interests of the mother than the Registrar.
NOTICE OF DISCONTINUANCE
Strictly, the filing of a Notice of Discontinuance is not the same as a determination that a party’s application has been wholly dismissed. However, the effect in some ways is the same. By commencing the Application as he had, forced the Registrar and the mother to incur costs, which would not have been incurred if the Application had not been filed. No evidence is offered as to why the Applicant filed a Notice of Discontinuance when he chose to do so.
It is fair to acknowledge that the Court had not delivered Reasons in a timely manner as the parties were entitled to expect. Whilst it is proper to express regret for the delay, there was no obligation, it seems to me, for the Applicant to file a Notice of Discontinuance.
CONCLUSION
The Court can only imagine the extensive costs and time devoted by the Registrar to defending and/or responding to so many applications launched by the Applicant – not only in Court but in the review and objection processes available under the child support legislation.
The submissions of the Registrar present a principled basis for considering exercising a discretion to make an order for costs. Although not strictly relevant, further litigation around an order for costs is almost inevitable considering the almost 30 years of litigation and numerous applications and appeals.
Although the Applicant’s case was, in my view, far from strong – his enmeshed interest in child support issues and the legislation meant he had the capacity to argue his case other than on a totally misconceived basis, as sometimes occurs where the agenda behind child support disputes has its foundation in a total breakdown in a relationship between a parent (who is liable to maintain a child) and the child or children. That level of hurt, anger, frustration and disappointment that an intelligent person can carry for so long (and even when the children are long past their infancy) is capable of continued litigation-based motivation, defies logic and common sense.
Considering all of the relevant facts as set out, I have reached a conclusion, in this unique and longstanding case at this time, that the circumstances, in the exercise of the discretion I have, do not justify a departure from s 117(1).
I will dismiss the Application for costs – which effectively means all proceedings in this Court are at an end.
It is hard to envisage now any jurisdiction in a Court exercising powers under the Act or child support legislation, being capable of being enlivened in the future.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 June 2023
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