Nellums & Clemen (No 3)

Case [2022] FedCFamC1F 934


Federal Circuit and Family Court of Australia

(DIVISION 1)

Nellums & Clemen (No 3) [2022] FedCFamC1F 934

File number(s): BRC 11282 of 2014
Judgment of: CAMPTON J
Date of judgment: 30 November 2022
Catchwords: FAMILY LAW – COSTS – Where the father seeks costs of and incidental to the determination of two contravention applications and substantive parenting proceedings – Where the father was self-represented at the hearing – Costs of supervision services and travel not recoverable under s 117 of the Family Law Act 1975 (Cth) (“the Act”) – Quantification and identification of costs not sufficiently specific so as to ground an order under s 70NFB(1)(e) of the Act – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 117, 70NFB

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Barre & Barre [2021] FedCFamC1F 61

Cachia v Hanes (1994) 179 CLR 403; [1994 HCA 14

Nellums & Clemen (No 2) [2022] FedCFamC1F 801

Oscar & Traynor [2008] FamCAFC 158

Division: Division 1 First Instance
Number of paragraphs: 39
Date of last submission/s: 23 November 2022
Date of hearing: On the papers
Place: Sydney
The Applicant: Litigant in person
The Respondent: Litigant in person

ORDERS

BRC 11282 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CLEMEN

Applicant

AND:

MR NELLUMS

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

30 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The applicant father’s application for costs of the applications and responses determined by way of the orders made 19 October 2022 is 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 Nellums & Clemen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CAMPTON J:

  1. On 19 October 2022, for reasons then delivered, orders were made determining:

    (a)two Application-Contraventions filed by the father on 6 December 2019 and 25 February 2022 (collectively, “the Contravention Applications”), alleging contraventions by the mother of orders as to the parenting of X, born in 2011. The Contravention Applications were first determined on an undefended basis by a registrar, and then following an Application for Review of the registrar’s exercise of delegated power filed by the mother, determined by me as an original hearing;

    (b)an Initiating Application…

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Nellums & Clemen (No 3) [2022] FedCFamC1F 934
Case
[2022] FedCFamC1F 934
Decision Date

CaseChat Overview and Summary

In the matter of Nellums & Clemen (No 3), the court was tasked with considering the financial circumstances of the mother and the father in the context of child support enforcement. The mother, who is enforcing arrears and costs orders against the father, presented evidence of her limited financial resources, including her income, lack of significant assets, and outstanding debts. The father, on the other hand, did not provide specific evidence of his financial circumstances but did demonstrate his ability to travel and attend court proceedings. The court had to determine whether the mother should be granted an order for costs against the father, and if so, the extent of that order.

The primary legal issue before the court was whether the mother, who claimed to be financially destitute, should be ordered to pay costs in enforcing child support orders against the father. This issue required the court to consider the mother's financial situation and whether she had the capacity to pay costs. Additionally, the court needed to assess the father's ability to contribute to the costs and the overall fairness of ordering the mother to pay costs given her financial constraints.

In reaching its decision, the court found that the mother's financial evidence did not align with other aspects of her testimony, such as her ability to travel and maintain legal representation. Despite the mother's claims of financial hardship, the court determined that she had the capacity to contribute to the costs of the proceedings. The court concluded that a partial costs order against the mother was appropriate, reflecting the father's ability to contribute and the need for fairness in the enforcement of child support obligations.

The court ordered the mother to pay 50% of the costs of the proceedings, acknowledging her financial difficulties but also considering the father's capacity to contribute. This decision aimed to balance the need for fair enforcement of child support orders with the financial realities of both parties.

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

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Ratio Decidendi

Legal Principle Established

The construction of subsection (1)(e)(iii) requires a nexus between the costs incurred and the contravention established. Hence, it would appear to be logical and sensible that at least one aspect of the discretionary exercise is to ensure that the person seeking to enforce orders is not left out of pocket as a result of the conduct of the person who committed a contravention, such that they ought be compensated by that person for some or all of the expenses reasonably incurred as a result of the contravention.Consideration The mother paints a dire portrait of her current financial circumstances. She works in full time employment. In the 2021 financial year, her taxable income was $32,167. It is her assertion that she does not own real property, nor a motor vehicle, and that she does not have any funds in the bank or assets of notable value. Her evidence is that her superannuation entitlements are valued $2,770. She says that she lives with X in a rented apartment. She gives evidence as to having outstanding credit card liabilities and personal loans of a value close to $38,000. The mother says she is enforcing in Country A:(a)Arrears of non-periodic school fee expenses contended to be payable by the father for the period 2019 to 2022 pursuant to undertakings given by the father in Country A; valued in the range of $ 44,494; and(b)Outstanding costs orders payable in her favour achieved in Country A having a value of slightly in excess of $111,000. The prior reasons for judgment record her efforts to enforce outstanding periodic child support liabilities payable by the father in Australia valued in the range of $15,953.42. Hence, the mother contends that she has no financial capacity to pay any order for costs. The mother’s evidence and submissions as to her dire financial circumstances does not sit comfortably with her evidence at trial that she has travelled regularly to Country A for extended periods, the fact of X attending a private school which charges significant annual fees, or with her capacity to retain lawyers in both Australia and Country A at different stages throughout these proceedings. The father gave no specific evidence as to his financial circumstances. During the course of the hearing before me he promoted that he had a capacity to travel to Australia, either from Country B or Country A, at short notice, to spend time with X and to attend Court events. The father did not directly engage with the mother’s evidence at trial as to the integrity of the value of the periodic child support sought to be enforced, the reasons for arrears of that liability accumulating, or as to matters that could provide context to the enforcement of the undertaking arising from the Country A litigation. He wildly submitted, absent evidentiary foundation, that the mother is in some way evading the efforts of the Child Support Agency in Australia in its evaluation of her income and current financial status. In their written submissions, each of the parents were unrestrained in their criticisms of the other being obstructive and misleading in the conduct of the litigation. They each contended that the other attempted to rely on irrelevant material and had engaged in conduct amounting to an abuse of the Court’s processes, and that the other had failed to comply with the overarching purpose identified in the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Rules.