Jarman v Glenham (No 2)
[2023] FedCFamC2G 302
•24 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jarman v Glenham (No 2) [2023] FedCFamC2G 302
File number(s): BRG 460 of 2021 Judgment of: JUDGE TONKIN Date of judgment: 24 April 2023 Catchwords: CHILD SUPPORT-Application for costs – whether costs should be awarded – Order made for applicant to pay first respondent’s costs Legislation: Administrative Appeals Tribunal Act 1975 s 44AAA
Bankruptcy Act1966
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Family Law Act 1975 s117
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Circuit and Family Court of Australia Act 1999 ss 7, 214
Cases cited: Irwin v Lee [2022] FedCFamC2G 3
Oshlack v Richmond River Council (1998) 193 CLR 72
Vanstone v Clark (2005) FCAFC 189
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 1 November 2022 Date of hearing: 24 October 2022 Place: Brisbane Counsel for the Applicant: Ms Dart Solicitor for the Applicant: Ruhl Family Law Centre Counsel for the First Respondent: Mr Fellows Solicitor for the First Respondent: Resolute Legal Counsel for the Second Respondent: Ms Spottiswood Solicitor for the Second Respondent: Mills Oakley ORDERS
BRG 460 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JARMAN
Applicant
AND: MS GLENHAM
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
24 APRIL 2023
THE COURT ORDERS THAT:
1.The applicant pay the first respondent’s costs fixed in the sum of $16,380.67 within 30 days in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym Jarman v Glenham (No 2) is approved pursuant to s110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
On 5 September 2022, the Court made orders refusing the applicant leave to extend time to file a Notice of Appeal (Child Support) seeking to appeal the decision of the Administrative Appeals Tribunal (AAT) under s 44AAA of the Administrative Appeals Tribunal Act 1975 (AAT Act). The respondents were ordered to file written submissions as to costs within 28 days and the applicant to file written submissions in reply within a further 14 days.
There has been some delay in finalising this matter. On 27 September 2022, costs as between the applicant and the Child Support Registrar were resolved by way of consent orders on the basis that the parties bear their own costs. As such the Registrar did not file any written submissions.
On 29 September 2022, the first respondent filed written submissions seeking costs calculated in accordance with r 22.09 and Schedule 2. The first respondent made reference to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (General Federal Law Rules).
On 13 October 2022, the applicant filed written submissions in reply relying on the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules) arguing that the issue of costs be determined in accordance with section 117 of the Family Law Act1975.
The Registrar sought and was granted leave to file written submissions in circumstances where the applicant and first respondent made conflicting submissions on the power of the Court to make orders as to costs in an appeal instituted under s 44 of the AAT Act.
Costs in child support appeals under s 44AAA
Section 214 of the Federal Circuit and Family Court of Australia Act 1999 (FCFCOA Act) provides the Court with a broad discretion in relation to the award of costs. That section does not apply to family law or child support proceedings. The discretion "must be exercised judicially and in the context of the relevant Court rules": Irwin v Lee [2022) FedCFamC2G 3 at [74) applying Oshlack v Richmond River Council (1998) 193 CLR 72; [1998) HCA 11 at [65).
As pointed out by the Registrar the term “family law or child support proceedings” is defined as proceedings in respect of which Division 2 of the Court has original jurisdiction under s 132 of the FCFCOA Act: s 7(1) of the FCFCOA Act.
Section 132 of the FCFCOA Act provides:
(1)The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction:
(a)with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975;
(b)with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act; or
(c)with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning:
(i)the adoption of children; or
(ii)the property of the parties to a marriage or either of them, being matters between those parties referred to in the definition of matrimonial cause in the Family Law Act 1975; or
(iii)the rights and status of a person who is an ex-nuptial child, and the relationship of such a person to the person's parents'
(d)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by:
(i) the Child Support (Assessment) Act 1989; or
(ii) the Child Support (Registration and Collection) Act 1988.
Though an appeal instituted under s 44AAA of the AAT Act may arise out of decisions previously made under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 (Collection Act), the appeal itself is not a proceeding that may be instituted under those Acts. Appeals are proceedings instituted under the AAT Act, which expressly confers jurisdiction on Division 2 of the FCFCOA under s 44AAA. As such the applicant’s appeal pursuant to s 44AAA of the AAT Act does not fall within the meaning of family law or child support proceedings.
In Carrell v Mayne [2021] FedCFamC2G 162 Judge Brown observed at [156]-[157]:
The proceedings were commenced pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975. Accordingly, pursuant to the definition provided by section 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) they are not family law or child support proceedings. In the circumstances, the legal provisions relating to costs under section 117 of the Family Law Act 1975 (Cth), section 100 of the [Child Support (Assessment) Act 1989], and section 105 of the [Child Support (Registration and Collection) Act 1988] do not apply.
I concur. I adopt the comprehensive submissions of the Registrar confirming Judge Brown’s analysis (above) which is consistent with the following:
(a) Section 131(1)(a)(i) and (2) of the FCFCOA Act provides that the Court has such original jurisdiction as is vested in it by express provision including any jurisdiction vested in it to hear and determine appeals from decisions of person, authorities or tribunals other than courts; and
(b) The legislative intent behind the Tribunal Amalgamation Act 2015 which conferred jurisdiction to hear child support appeals on the former Federal Circuit Court of Australia and the Federal Court of Australia, removed the jurisdiction of the Family Court of Australia and transferred the jurisdiction to hear any further appeals to the Full Court of the Federal Court.
Do the Family Law Rules apply?
The Registrar contends that the Family Law Rules do not apply to an appeal instituted under s 44AAA of the AAT Act. Rule 2.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 provides:
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (other than rules 1.01 to 1.03), as modified in accordance with these Rules, apply to the exercise of the Court's jurisdiction in family law or child support proceedings as if the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 were provisions of these rules.
The Registrar submits to the extent that Rules 1.05 and 1.13 purport to apply to an appeal instituted under s 44AAA of the AAT Act they are directly inconsistent with the definition of family law or child support proceedings under s 7(1) of the FCFCOA Act. Rule 1.05 of the Family Law Rules defines a child support proceeding as including an appeal under s 44AAA of the AAT Act and Rule 1.13 purports to set out how the Family Law Rules apply.
In Vanstone v Clark [2005) FCAFC 189 at [120) Weinburg J stated:
It has been fairly standard practice, in the past, for empowering provisions to provide that regulations may be made that are "not inconsistent with this Act". As a matter of basic principle, such statutory limitations are probably unnecessary. Subject to one qualification, to which I shall return shortly, courts have always accepted that subordinate legislation will be invalid if it contradicts, or is repugnant to, the statute under which it is made.
…
As a general proposition, regulations will be invalid where they attempt to widen the purposes of the Act, to add new or different means of carrying them out, or depart from or vary the plan which the legislature has adopted to attain its ends: Shanahan at 250. There are, of course, numerous examples of delegated legislation having been set aside under the broad purview of repugnancy: see for example Hamzy v Tricon International Restaurants (2001] FCA 159; (2001) 115 FCR 78 where a regulation under the Workplace Relations Act 1996 (Cth) was struck down on this basis. It would, however, be rare for a subordinate instrument to directly contradict a provision contained in an empowering Act. Nonetheless, it has happened. See for example Marcris v Lucas (1971] SASR 329.
The Registrar contends that the FCFCOA Act, and in particular the provisions affording the Chief Justice and Chief Judge with power to make the Rules of court, does not fall within the qualification. Accordingly, the Registrar submits that rr 1.05 and 1.13 of the Family Law Rules to the extent that they purport to apply to an appeal under s 44AAA of the AAT Act are inconsistent with s 7(1) of FCFCOA Act and are invalid. I accept that submission. These appeal proceedings fall within the meaning of a general federal law proceeding and the General Federal Law Rules govern the practice and procedure to be applied: see 1.05 and 1.06 of the General Federal Law Rules. The Court's power to award costs in the appeal is pursuant to s 214 of the FCFCOA Act and Part 22 of the General Federal Law Rules.
Approach to costs under section 214 of the FCFCOA Act
Subsections 214 (2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 provide as follows:
...
s.214
(2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
Part 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides the Court with a broad discretion as to costs and the manner of their calculation. Sub rule 22.02 (2) provides in making a costs order the Court may:
(a)set the amount of costs;
(b)set the method by which costs are calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules; or
(d)set a time for payment of the costs.
Under section 214 of the FCFCOA Act and the Rules the Court retains a broad discretion whether to make an order for costs. Sub rule 22.09 provides that unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to (a) costs in accordance with Schedule 2 and (b) disbursements properly incurred. Schedule 2 is applicable in calculating costs.
The rationale for making a costs order is not to penalise an unsuccessful litigant but to compensate a successful litigant for expenses that might otherwise have been avoided. Judge Brown in Carrell (supra) at [161] noted that in civil proceedings costs follow the event. In Irwin v Lee [2022] FedCFamC2G 3 at [77] Judge Baird observed that the default position is that, when ordered, costs will be assessed in accordance with the event-based scale found at Schedule 2 to the General Federal Law Rules.
The first respondent contends that costs should follow the event. The applicant raised numerous grounds of appeal including an application to adduce further evidence. The appeal was lodged out of time. Leave to extend time to appeal was refused. The applicant was wholly unsuccessful. The first respondent seeks compensation for expenses incurred that may have been otherwise avoided had the applicant not sought leave to appeal.
The applicant relied erroneously on provisions under section 117 of the Family Law Act regarding costs assessment (discussed above). Though the Court has a broad discretion as to costs and the manner of calculation, costs fall to be determine in proceedings under section 44AAA of the Administrative Appeals Tribunal Act 1975 pursuant to subsections 214 (2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 and sub rule 22.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The applicant sought the Court exercise its discretion in making no order as to costs or alternatively the applicant be provided with time to pay any costs order. The applicant in submissions sought to traverse the facts as found by the Tribunal and continued to express dissatisfaction with the Tribunal’s decision. The applicant argued in submissions that “it is open to the Court to find the first respondent’s income has increased”[1] and submitted that the Court was required to consider the impact of any costs order on the applicant.
[1] Applicant’s submissions [16]
The applicant placed reliance on the Registrar’s concession there was an error of law though accepted that the error made no material difference to the assessment. Though the Registrar conceded the Tribunal made a mistake about whether the applicant’s invalidity pension was tax free or a component of the pension was tax free the Court found that the error was “an immaterial error” once the Tribunal’s statutory function under section 98C of the Assessment Act was properly understood. Moreover the appeal with respect to the Tribunal’s failure to refer to the decision in Douglas had little utility. As a result of the decision in Douglas the impact of that decision on the applicant was that in respect of his invalidity pension a proportion of that income was no longer subject to tax and as a result the applicant had more money available to him from his invalidity pension not less.
Conclusion
I am satisfied that the applicant was wholly unsuccessful in the appeal and that costs follow the event. The first respondent seeks costs fixed in the sum of $16,380.67. I find those costs reasonable. I order in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 that the applicant pay the first respondent’s costs in the fixed amount of $16,380.67 within 30 days.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 24 April 2023
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