Labeck & Calandros (No 6)

[2021] FCCA 1713

FEDERAL CIRCUIT COURT OF AUSTRALIA

Labeck & Calandros (No 6) [2021] FCCA 1713

File number:	DNC 115 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	27 July 2021
Catchwords:	FAMILY LAW – costs – where the father seeks costs against the mother – where the father was successful on 3 of 5 counts of contravention – where the father has a significant child support debt – Court satisfied an order for the mother to pay 60% of the father’s costs is appropriate – execution of the costs order stayed until the father’s child support debt is no more than the amount of the costs order
Legislation:	Family Law Act 1975 (Cth), s 70NFB
Number of paragraphs:	5
Date of last submissions:	28 May 2021
Date of hearing:	14 April 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Farmer of Withnalls Lawyers
Solicitor for the Respondent:	Ms Bowen of Bowen Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Tregear of Arafura Legal

ORDERS

DNC 115 of 2020

BETWEEN:

MR LABECK

Applicant

AND:

MS CALANDROS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	27 JULY 2021

THE COURT ORDERS THAT:

1.The respondent mother is to pay the applicant father’s costs in the fixed sum of $6,923.40.

2.The execution of order 1 be stayed until the applicant father’s child support debt is no more than $6,923.40.

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 under the pseudonym Labeck & Calandros (No 6) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. On 15 January 2021 the applicant father filed a contravention application alleging that the respondent mother contravened orders made on 3 September 2020. The applicant father alleged the respondent mother contravened order 1(b)(i) on 9 September 2020, order 1(c)(i) on 7 October 2020, 9 December 2020 and 30 December 2020, and order 1(c)(ii) on 25 December 2020.

2. On 17 May 2021 I found the respondent mother guilty of the contraventions alleged to have occurred on 9 September 2020, 7 October 2020 and 9 December 2020. I gave the applicant father 14 days to make any submissions in relation to the quantum of his costs and provided the respondent mother an opportunity to respondent within a further 7 days.

3. The applicant father filed written submissions concerning the quantum of his costs on 28 May 2021. The respondent mother did not file any written submissions in response.

4. I intend to make a costs order against the respondent mother pursuant to s 70NFB(2)(g) of the Family Law Act 1975 (Cth). My view is that the order should be for 60% of the applicant father’s costs recognising that he was successful in only 3 of the 5 counts. The applicant father submitted the total of his costs in relation to the contravention application was $11,539. Therefore, 60% of the applicant father’s costs would be $6,923.40.

5. However, the applicant father is in arrears of more than $17,000 for child support payments to the mother. He has entered into an arrangement with the Child Support Registrar to pay these arrears by relatively small amounts over time.  In the circumstances, it does not seem just to me to make an order against the mother which is immediately enforceable. The father says it is not his intention to immediately enforce the order but to apply to the Child Support Registrar to set-off the amount against his child support arrears, however, it seems to me that he is not necessarily bound by that present intention. I am not aware of any formal mechanism by which I can order costs be set-off of against a child support debt. I propose to make an order staying execution of the costs order until the child support debt is reduced to no more than $6,923.40. That may have the same effect.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate: 

Dated:       27 July 2021