Hopkins & Shorley

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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:

  1. 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.

  2. 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.

  3. This initial phase of child support proceedings ended on 17 February 2014 when Judge Coates dismissed two child support appeals.

  4. The background to the Application filed by the Applicant, Mr Hopkins, on 16 July…

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Details
Case
[2023] FedCFamC1F 534
Decision Date

CaseChat Overview and Summary

The matter of Hopkins & Shorley came before the Family Court of Australia. The Applicant, seeking to conclude proceedings, made an application for costs under the Family Law Act. The Registrar opposed the application, arguing that the Applicant's persistent and protracted litigation had consumed significant judicial resources. The Applicant, who had been involved in ongoing child support disputes, argued that the Registrar had no basis for opposing the costs application. The court had to determine whether the Applicant's application for costs should be dismissed under the discretion provided by section 117(1) of the Family Law Act.

The legal issue before the court was whether the Applicant's application for costs should be dismissed due to the persistent and protracted nature of the litigation, as argued by the Registrar. The court considered the lengthy history of litigation between the parties, the extensive resources expended by the Registrar, and the Applicant's ongoing interest in the disputes. The court also evaluated the merits of the Applicant's case and the potential impact of granting or denying the costs application.

The court found that the Applicant's case was not strong, and the litigation was driven by a deep-seated emotional agenda rather than a legitimate legal dispute. The court acknowledged the significant costs and time devoted by the Registrar to the case and noted that further litigation regarding costs was almost inevitable. The court exercised its discretion under section 117(1) of the Family Law Act and dismissed the Applicant's application for costs. The court concluded that the circumstances did not justify a departure from the statutory provision, effectively ending all proceedings in the Family Court of Australia.

In conclusion, the court dismissed the Applicant's application for costs and noted that it was hard to envisage any future jurisdiction in the Court that could be exercised under the Act or child support legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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