Polec and Staker and Anor (SSAT Appeal)
[2012] FMCAfam 19
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POLEC & STAKER & ANOR (SSAT APPEAL) | [2012] FMCAfam 19 |
| CHILD SUPPORT – Application for costs following successful appeal from SSAT – no costs certificate available under Federal Proceedings (Costs) Act 1981 – Child Support Registrar to pay costs. |
| Family Law Act 1975, s.117 Child Support (Registration & Collection) Act 1988, ss.105, 110B Federal Proceedings (Costs) Act1981 |
| Applicant: | MR POLEC |
| First Respondent: | MS STAKER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 9305 of 2010 |
| Judgment of: | Hughes FM |
| Hearing date: | 7 October 2011 |
| Date of Last Submission: | 7 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 18 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Langham |
| Solicitors for the Applicant: | Maddens Lawyers |
| First Respondent: | In person (via telephone-link) |
| Counsel for the Second Respondent: | Mr Boughton |
| Solicitors for the Second Respondent: | Australian Government Solicitors |
ORDERS
The Child Support Registrar shall pay the applicant’s costs in the sum of $8,630.
IT IS NOTED that publication of this judgment under the pseudonym Polec & Staker & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
MLC 9305 of 2010
| MR POLEC |
Applicant
And
| MS STAKER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for costs following the applicant’s successful appeal to this Court from a child support decision of the Social Security Appeals Tribunal.
The applicant and the first respondent are the parents of a child who is now an adult but who was previously the subject of an administrative assessment of child support. The applicant was the liable parent pursuant to the assessment and the first respondent was the parent entitled to child support.
The second respondent is the Child Support Registrar.
Given his successful appeal, the appellant might reasonably have expected to be granted a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981. However, that Act has not been amended to cover appeals to the Federal Magistrates Court from a decision of the Social Security Appeals Tribunal, notwithstanding the significant amendments to the Child Support scheme in 2006 which provided for the Social Security Appeals Tribunal to review certain decisions of the Child Support Registrar and for appeals from the Tribunal to be heard by the Court, amongst others.
In those circumstances, the applicant seeks to recover his costs from one or both of the respondents.
Background
Until December 2009 the child of the applicant and the first respondent lived with his mother in (omitted), Victoria. In December he moved to (omitted) and lived with various friends and family members. In January 2010, he commenced a full-time apprenticeship.
The applicant advised the Child Support Agency in January 2010 that the child was no longer living with his mother. He argued that the move to (omitted) constituted either a child support terminating event or, at least, a reduction in the percentage of care provided to the child by the mother which would warrant a reduction in the amount of Child Support payable by him.
The Child Support Registrar decided in February 2010 not to change the administrative assessment. The applicant unsuccessfully objected to that decision and then applied to the Social Security Appeals Tribunal for a review of the decision. The Social Security Appeals Tribunal confirmed the original decision on 17 August 2010. The applicant’s appeal from that decision was successful in this Court. Reasons for decision were given on 9 September 2011 and the matter was remitted to the Social Security Appeals Tribunal for re-hearing.
The appeal to this Court was made pursuant to section 110B of the Child Support (Registration and Collection) Act1988. Costs in relation to those proceedings are governed by the Family Law Act1975.[1] The general rule is that each party bears their own costs.[2] However, the Court may make an order for costs if it is satisfied there are circumstances that justify it doing so.[3] In making that determination, the Court is required to consider the matters set out in section 117(2A) of the Act as follows:
[1] Section 105, Child Support (Registration and Collection) Act1988
[2] Section 117(1), Family Law Act 1975
[3] Section 117(2), Family Law Act 1975
(a) The financial circumstances of each of the parties to the proceedings;
There was no direct evidence before the Court in relation to the financial circumstances of the parties. A child support assessment for the period of 1 March 2010 to 20 August 2010 indicated the taxable income of the applicant in 2009 was $100,000 and of the first respondent, $60,000. Counsel for the applicant said from the bar table that the financial circumstances of the applicant had deteriorated since 2009 and that his consultancy business currently generated gross income of approximately $700-$800 per week.
Counsel for the appellant told the Court the appellant owns three properties. The first is a home and shop in Property M in which he and his partner live. Their equity in the property is approximately $33,000. The applicant’s partner runs a business from the shop on the premises from which she derives an income of approximately $25,000 per annum. She has a 13 year old son who lives with her and the applicant.
The second property owned by the applicant is a property on Property P which has an equity of approximately $20,000. The property is rented out for $235 per week gross, which does not cover the mortgage and other outgoings.
The third property owned by the applicant is a property in Property R which has an equity of $150,000. The property generates gross rental income of $1,900 per month which exceeds the outgoings on the property.
In addition, the applicant has $160,000 in superannuation and a car.
Other than the child support assessment which indicates the first respondent’s taxable income in 2009 was $60,000, there is no information about her financial circumstances.
The Child Support Agency is funded by the taxpayers of Australia.
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid;
None of the parties are in receipt of a grant of legal aid for the proceedings.
(c) The conduct of the parties to the proceedings.
No complaint about the conduct of any of the parties was made in these proceedings.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
This is not a relevant consideration in this case.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The Child Support Registrar and the respondent mother were wholly unsuccessful in defending the appeal.
The appeal from the Social Security Appeals Tribunal decision was successful because the Tribunal declined to make any findings of fact, except those which were agreed, despite the availability of evidence which could (and should) have been analysed to determine whether or not there had been a change to the level of care provided by the mother for the child. The mere fact that the child was living away from home and engaged in a full time apprenticeship for which he received an independent income suggests, as a matter of common sense, that there has been some change to the level of care. The finding of no change without any analysis of the evidence about it amounted to an error of law.
The Child Support Registrar could have conceded the appeal. In that case the decision would have been remitted to the Tribunal for a re-hearing and the costs of the appeal in this Court would have been saved. Counsel for the Child Support Registrar argued that, even if the Registrar had conceded the appeal, the respondent mother may not have. I do not accept that. The respondent mother was unrepresented throughout the proceedings. She deferred to the expertise of counsel for the Child Support Registrar and simply adopted the position of the Registrar. She made no submissions contrary to those of the Registrar. It seems likely that she would also have conceded the appeal had the Registrar done so, rather than pressing on alone to defend the appeal.
Counsel for the Child Support Registrar argued that the Registrar ought not to be liable for costs because the appeal highlighted a real problem in the lack of a statutory definition of the level of care of a child and resulted in some judicial guidance being provided to the Tribunal and to the Registrar about that issue. There is, however, no reason why the appellant, as an individual, should bear the cost of dealing with that issue. As was emphasised by counsel for the appellant, the Child Support Scheme is not optional. Once one parent applies to the Child Support Agency for an administrative assessment, the other parent cannot opt out, except with the agreement of the first parent. The appellant is obliged by law to comply with the administrative assessment or run the risk of serious consequences, including financial penalties. The only way to challenge a decision is through the administrative and judicial processes provided by the legislation. The appellant followed those processes and was successful.
It is very difficult for any unrepresented person to prove that the Tribunal has erred in law. It was reasonable for the appellant to obtain legal representation for the appeal. It is also reasonable for him to recover the costs of that representation.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
There is no evidence of any offer in writing to resolve the proceedings.
Conclusion
The applicant spent more than $8,000 appealing the decision of the Social Security Appeals Tribunal which confirmed the original decision of the Child Support Registrar. There is no reason why he should be out of pocket and, in circumstances where a costs certificate is not available, I am satisfied the Child Support Registrar should meet those costs.
The amount originally sought by the applicant was $8,793 comprising solicitor’s costs of $5,163 and counsel’s fees of $3,630. This amount did not include preparation for and attendance at Court for the costs argument on 7 October 2011.
However, during submissions, counsel for the applicant conceded that it would be appropriate for any costs order to be made in accordance with the Federal Magistrates Court scale applicable at the date of hearing of the appeal, 1 July 2011. The result is very similar. The costs in accordance with that scale would be as follows:
Work performed
Family law
amount ($)Stage 1: Initiating or opposing application up to completion of first court day Lump sum
Plus: Court attendance for a short mention1 760.00
240.00Stage 5: Preparation for final hearing For a 1 day matter: Lump sum 3 750.00 Stage 6: Final hearing costs Plus: full‑day hearing fee
Plus: advocacy loading
Attendance at Court for costs argument
1 760.00
880.00
240.00
Total $8 630.00
I will order accordingly.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hughes FM
Date: 18 January 2012
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