Jarman v Glenham (No 2) - [2023] FedCFamC2G 302

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jarman v Glenham (No 2)

Details

AGLC: Jarman v Glenham (No 2) [2023] FedCFamC2G 302
Case: [2023] FedCFamC2G 302
Decision Date: 24 April 2023

CaseChat Overview and Summary

In the matter of Jarman v Glenham (No 2), the applicant sought costs from the first respondent following an appeal against a child support assessment. The Federal Circuit and Family Court of Australia presided over the case, with the primary focus being on whether the applicant was entitled to costs despite his unsuccessful appeal. The applicant argued that the Family Court Tribunal had erred in its assessment of his invalidity pension, specifically regarding its tax-free status. The Registrar conceded an error had been made but found it to be immaterial to the overall assessment.

The legal issues before the court included the impact of the Tribunal’s error on the child support assessment and whether the applicant’s appeal had any merit. The court needed to determine if the error in the assessment was significant enough to warrant a different outcome and whether the appeal had any useful purpose. The court also examined the relevance of the decision in Douglas to the applicant's case and its effect on the invalidity pension.

Upon review, the court found that the error in the Tribunal's assessment was immaterial because it did not affect the overall child support calculation. The court also concluded that the appeal, particularly in relation to the Douglas decision, lacked substantial utility as it did not result in a negative impact on the applicant. The court accepted the first respondent’s claim for costs, finding the requested amount of $16,380.67 to be reasonable. Consequently, the court ordered the applicant to pay the first respondent's costs within 30 days.

The court ordered that the applicant pay the first respondent’s costs in the fixed amount 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) Rules 2021.

Orders

Orders of the court

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) Rules 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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