Matthew William Board and Family Court of Western Australia

[2013] AATA 350

[2013] AATA  350

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0830
Re	Matthew William Board
APPLICANT
And	Family Court of Western Australia
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	28 May 2013
Place	Perth

The Tribunal affirms the decision under review.

(Sgd) G.D.Friedman..................................

G. D. Friedman, Senior Member

COURT FEES – Exemption from payment of setting-down fee - whether financial hardship exists

Administrative Appeals Tribunal Act 1975 s 34J
Family Law (Fees) Regulation 2012 Paragraph 2.05

REASONS FOR DECISION

G. D. Friedman, Senior Member

28 May 2013

1. Matthew Board applied for exemption from payment of setting-down and hearing fees in the Family Court of Western Australia.  On 12 February 2013 the Registrar of the respondent refused the application on the grounds that Mr Board had adequate income to meet the fees after his reasonable day-to-day living expenses and liabilities had been taken into account so as not to cause financial hardship.  Mr Board applied to the Tribunal for review of the decision. 

2. With the consent of the parties the Tribunal has determined this matter in the absence of the parties and without conducting a hearing, under s 34J of the Administrative Appeals Tribunal Act 1975.

3. In a letter to the Tribunal dated 6 May 2013 the Registrar of the respondent stated that the amount originally payable by Mr Board was a setting-down fee of $765.00 (which covered the listing of the case for trial and the first hearing day) and a hearing fee of $765.00 (which was intended to cover an anticipated second day).  The Registrar stated that ultimately the case proceeded on 8 April 2013 in Kalgoorlie and concluded on the first listed day.  Consequently the amount owing by Mr Board is the setting-down fee of $765.00.

ISSUE    

1. The issue is whether Mr Board should be exempted from payment of the setting-down fee of $765.00 on the basis of financial hardship.

EVIDENCE

1. In his application to the respondent for exemption from Court fees Mr Board noted that he is employed and earns $5033.85 per fortnight before tax (about $131,000 per year) and receives rent or board in the amount of $1120.00 per fortnight, giving a gross income of $6123.85 per fortnight, or $4659.85 after tax.  He estimated his living expenses per fortnight as $4450.00, comprising food ($800.00), mortgage ($2000.00), gas, electricity, telephone etc. ($550.00), car/travel ($200.00), clothing, medical and other expenses ($200.00) and children’s expenses ($700.00).

2. Mr Board listed the value of his assets as $540,021.95, comprising a house worth $540,000.00 and $21.95 in a bank account.  He said that his liabilities total $506,982.53, comprising a mortgage of $407,054.76, a credit card debt of $5983.06, a loan/lease of $88,542.28, and other personal loans and an outstanding debt from BHP of $5402.43. 

3. Mr Board stated that in addition he is required to collect the children from Kununurra each school holidays and pay air fares to and from Perth at a cost of $1300 to $1800.  He said that he might also be required to meet part of the costs of the children’s mother to attend Court in Kalgoorlie.      

CONSIDERATION

1. Paragraph 2.05 of Family Law (Fees) Regulation 2012 states:

   2.05 Persons exempt from paying fee—financial hardship

   (1) If:

   (a) a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) is payable by an individual in relation to a proceeding; and

   (b) in the opinion of a Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual;

   the Registrar or authorised officer may exempt the individual from paying the fee.

   (2) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day‑to‑day living expenses, liabilities and assets.

2. In considering Mr Board’s financial situation the Tribunal takes into account that on his own estimation his fortnightly income exceeds his expenses (including mortgage repayments) by $209.85.  Although he has other loans and a credit card debt, plus air fares for the children during school holidays that might place a strain on his financial resources at times, the level of his regular income suggests that he has the capacity to meet these commitments. 

3. On balance, having regard to Mr Board’s income, day-to-day living expenses, liabilities and assets the Tribunal is of the opinion that payment of the setting-down fee of $765.00 would not cause financial hardship to him. The Tribunal concludes that he should not be exempted from paying the fee.

DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

(Sgd) D.A Chapman...............................................

Associate

Dated 28 May 2013

Date of hearing Not applicable: decision on the papers