Newbeld & Newbeld and Anor (Costs)

[2007] FamCA 1650

FAMILY COURT OF AUSTRALIA

NEWBELD & NEWBELD & ANOR (COSTS) [2007] FamCA 1650

FAMILY LAW – APPEAL – EVIDENCE - FURTHER EVIDENCE ON APPEAL – Application in a Case to adduce further evidence in relation to the wife’s current income – evidence would make no difference to the outcome – leave not granted

FAMILY LAW - COSTS – Appeal dismissed – Appellant to pay the Child Support Registrar’s costs – No order for costs in relation to the first respondent

Family Law Act 1975 (Cth)
CDJ v VAJ (1998) FLC 92-828

APPLICANT: MR NEWBELD

FIRST RESPONDENT:

SECOND RESPONDENT:

MRS NEWBELD

THE CHILD SUPPORT REGISTRAR

FILE NUMBER: BRM 7806 of 2002

APPEAL NUMBER: NA 56 of 2007

DATE DELIVERED: 13 December 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 2 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Newbeld appears on his own behalf

SOLICITOR FOR THE FIRST 

RESPONDENT:

Ms Tosh

SOLICITOR FOR THE SECOND

RESPONDENT:

Mr Schulte

Orders

1. The appeal is dismissed.

2. That the appellant pay the costs of the second respondent, The Child Support Registrar, to be assessed and that otherwise there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Newbeld & Newbeld & Anor (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRM 7806 of 2002
APPEAL NUMBER: NA56 of 2007

MR NEWBELD

Applicant

And

MRS NEWBELD

First Respondent

THE CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application for further evidence on appeal

1. The husband wishes to file an application seeking to adduce what he describes as fresh evidence in the application.  The appeal was heard on 2 November 2007, so that this application is made after the time provided for written submissions, and the oral arguments have been completed.  The affidavit of the husband makes various assertions based on some annexed documents in relation to the wife's current income.  He says that her income is currently $US606 per month, rather than $250 being what was said, he contends, to the Federal Magistrates Court. 

2. The application is opposed by each of the other parties.  The solicitor for the first respondent submits that although this document purports to be from some authority in America, the US Social Security Administration, it is not signed by anyone and the information could be unclear and misleading.  She further submits that the document should be properly attested.  The solicitor, who appears for The Child Support Registrar, refers to the relevance of this document and its cogency.  His submission also was that the evidence would make no difference to the outcome.

3. Section 93A(2) confers on the Full Court an express power to receive further evidence upon questions of fact.  In CDJ v VAJ (1998) FLC 92-828, which was a parenting case, the High Court said of the admission of further evidence under the heading of s 93A(2) at par104:

   In the exercise of the discretion conferred by a power such as s 93A(2) the critical factor is the subject matter of the proceedings with which the appeal is concerned.  This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry.  Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.

   And in par 109:

   One consideration in construing s 93A(2) is its remedial nature.  Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.  The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures.  A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

   And in par 111, and I quote in part from that paragraph:

   The power to admit the further evidence exists to serve the demands of justice.  Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial.  Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

4. In this case the Federal Magistrate made orders that relate to the parties' current financial circumstances in that his Honour discharged the order from 31 May 2005.  Consequently, the purpose for which this evidence is intended to be placed before the Court would make no difference to the outcome and the wife's current income is largely irrelevant. 

5. In par 8 the husband also said that he could not comply with the order being the arrears.  That is the very matter with which the judgment largely deals and upon which the husband appeals. Reference to this is contained in the judgment to be given by the Court in relation to the appeal.  Leave will not be given to file the application in a case.

Costs

1. At the conclusion of this matter after giving judgment, an application for costs was made on behalf of the first respondent, the wife in these proceedings and the second respondent, The Child Support Registrar.  It was submitted by the solicitor for the Child Support Registrar that the costs should be paid by the appellant by reason of the obligation, in effect, of The Child Support Registrar to be involved in this matter because of the issues raised by the appellant. Further, that I should consider that the appellant did not seem to appreciate the previous decisions, including that of Warnick J, in relation to his own income because he did not present evidence that was verified in any way, that leading to the impossibility of the success of the appeal.

2. I raised the question as to the appellant's capacity to meet an order for costs.  The solicitor for the Child Support Registrar submitted that very issue is still the subject of an enforcement summons and that there may be sources from which costs orders can be met. This includes litigation with a person with which the appellant once had a relationship […]; the possibility of his daughter owing him money; and whether he might receive retirement benefits or income from other sources.  The solicitor for the first respondent supported those submissions and referred to the fact that the wife has been supported by Legal Aid in Sweden and she believes it may be necessary to repay part or all of those moneys.

3. The provisions of the Act provide that for an order for costs to be made, there must be reasons that would justify such an order.  In this case there are some quite obvious ones:

   (1)    that the appeal has been entirely unsuccessful; and

   (2)    the history of the litigation itself as referred to in my judgment. 

4. However it seems to me that the considerations of costs are different as between the two respondents.  In relation to The Child Support Registrar it is correct that they have represented the Registrar in this case, as they were obliged to do, and those costs should be met by the appellant because of that necessary role. 

5. However as to the costs of the wife, as I mentioned she has been supported by Legal Aid Sweden who may or may not require that she repay the funds.  However, that also involves some comparison of the parties' financial circumstances.  It seems that the wife's financial circumstances are relatively poor, although it may be that she now receives some income from a pension fund in America. 

6. The husband tells me today that his financial circumstances are also poor.  He says he has no property.  He has an income of $44,000 per year.  Bearing in mind the comparison of their two financial positions and the nature of this litigation, it seems to me appropriate that the appellant be required to pay the costs of The Child Support Registrar but not the costs of the first respondent.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.

Associate: 

Date:  21.02.08