SCVG & KLD (DECEASED) AND ANOR

[2020] FamCA 409

FAMILY COURT OF AUSTRALIA

SCVG & KLD (DECEASED) AND ANOR [2020] FamCA 409

FAMILY LAW – CHILD SUPPORT – where the Applicant seeks to be set aside the decision for the Child Support Registrar be excused from attendance until judgment – where the Applicant seeks an order for the Child Support Registrar to file responses in the litigation – where the application is a misconceived frolic – where the application is dismissed.

FAMILY LAW – Costs –where the Applicant has been wholly unsuccessful — where a costs order of a specific amount is made.

Child Support Assessment Act 1989 (Cth) ss 98C, 98L, 111, 117, 118, 145 and 188
Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 1.04, 1.06, 9.01

APPLICANT: Mr SCVG

1st RESPONDENT: The Estate of KLD (Deceased)

2nd RESPONDENT: Child Support Registrar

FILE NUMBER: SYC 5956 of 2016

DATE DELIVERED: 18 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE 1ST RESPONDENT: Mr Stenhouse

SOLICITOR FOR THE 1ST RESPONDENT: Macphillamy's

SOLICITOR FOR THE 2ND RESPONDENT: Sparke Helmore Lawyers

Orders

1. Mr SCVG’s Application in a Case filed on 8 May 2020 is dismissed.

2. I direct that Mr SCVG pay by way of costs to the Registrar of the Child Support Agency the sum of $2,500 within a period of six weeks of today. 

3. I direct that Mr SCVG pay to the solicitors for the Estate of KLD in relation to costs the sum of $1,612 within a period of six weeks of today's date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 5956 of 2016

Mr SCVG

Applicant

And

The Estate of KLD (Deceased)

1^st Respondent

And

Child Support Registrar

2^nd Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. In these matters, application in general terms is made for the Child Support Registrar to appear on two sets of proceedings and to take various steps in those proceedings.  Those proceedings are described as the Child Support Departure Order proceedings and the SSAT Scarlet Matter proceedings.  The Child Support Registrar has previously been excused from attendance until judgment. 

2. The first application made by Mr SCVG, being the first of those two applications, is styled as seeking an order pursuant to sections 111 and 118 of the Child Support Assessment Act 1989 (Cth) such that for the period between 15 July 2011 and 5 December 2015, he should be assessed to pay child support at a particular rate, being a rate varied from that at which he has previously been assessed. That application was filed on 27 July 2018 and the Child Support Registrar was named by the Applicant on that application.

3. The second of the two applications that was filed on 11 December 2017 seeks the setting aside of orders made by Judge Scarlett on 30 April 2015 being orders affirming a decision of the Social Security Appeals Tribunal of 20 March 2013.  In those proceedings, the Child Support Registrar was named by Mr SCVG as the Second Respondent.  Mr SCVG seeks to set aside various orders which he says were procured by a fraud committed by the late Ms KLD. 

4. The Child Support Registrar has to date effectively entered a submitting appearance on these matters.

5. Mr SCVG seeks leave to have the decision for the Child Support Registrar not to participate to be withdrawn.  At present, I am unable to discern an order made in those terms but he clarifies his position saying he now seeks the order that the Child Support Registrar be excused from attendance until judgment be set aside.  He seeks that the Child Support Registrar file various responses in the litigation.

6. By s 145 of the Child Support Assessment Act (Cth) the Child Support Registrar is entitled to intervene and argue in cases. As has been correctly identified by Mr SCVG, a consequence of the Registrar's intervention pursuant to s 145(2) is that if the Registrar intervenes in a proceeding under this Act, the Registrar is taken to be a party to the proceeding with all the rights, duties and liabilities of a party.

7. By ss 98C, 98L and 117(2) of the Child Support Assessment Act 1989 (Cth), Mr SCVG asserts that the Child Support Registrar thereby has an obligation to pursue in these proceedings just and equitable orders. Those provisions do not impose such an obligation upon the Registrar. Even if the Registrar is a respondent, as here, the Rules only require the Registrar to file a response if the Registrar seeks to oppose the orders being made or to seek different orders (see rule 9.01(1) of the Family Law Rules 2004 (Cth)).

8. As noted, effectively what has occurred here is the Registrar has entered a submitting appearance.  The Registrar seeks no orders and seeks no different orders.  That is, what is sought by Mr SCVG is the application of obligations that fall outside the rules. 

9. In considering the Rules, it is important to always bear in mind rule 1.04 - the main purpose of the Rules.  The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.  Rule 1.06 deals with matters concerned with promoting the main purpose the rules which include at

   (g) considering whether the likely benefits of taking a step justify the cost of that step;

   …

   (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents. 

10. The Affidavit in support of Mr SCVG’s application is replete with submissions and otherwise irrelevant material.  He gives no adequate justification for the Court to take a course which conflicts with the terms of the Rules and the main purpose of the Rules.  The imposition of an obligation on the Registrar to participate in the proceedings conflicts with the main purpose of the rules to ensure that the proceedings are undertaken in a timely manner and at a cost to the parties and the Court that is reasonable in the circumstances of the case.  There is no obligation on the Registrar to advocate a particular position.  The Registrar has effectively filed a submitting appearance and awaits judgment to submit to the terms of the judgment in so far as that may impact on the Registrar. 

11. The application made by Mr SCVG is utterly misconceived and a waste of the Court’s and the parties’ resources.  The application is dismissed.

Costs

1. In this matter, costs are sought on behalf of the Child Support Registrar in a fixed sum of $2,500. 

2. Costs are sought on behalf of the Estate of Ms KLD in the fixed sum of $1,612. 

3. The amount sought by the Child Support Registrar is a discount from the true legal costs of $3,600 and relates to an amount pertaining to documents being filed and served upon the Registrar, clarification of the content of those documents due to legibility, exchanges with the various parties, review of the documents, preparation for and attendance at Court. 

4. For the Estate of Ms KLD, costs are sought for the reviewing of material, replying to correspondence, clarification of matters, necessary telephone correspondence with solicitors, attendance at Court, reading of material, four hours at scale at $1,602. 

5. It is well-established pursuant to s 117 of the Family Law Act 1975 (Cth) that the starting point in relation to costs is that each party should bear his or her own costs. That starting point may be departed from with the justification arising from s 117(2)(a).

6. Mr SCVG opposes the costs and the cost in the sum being made pointing to having used a printout from the portal as forming the basis for the service of material.  He says that if there was any legibility problem, then it lies with the portal.  However, it is incumbent on Mr SCVG to ensure that the parties have clarity as to what it is that he is seeking in Court and should there be an issue with legibility of material that is being served, it is incumbent upon him to resolve that issue. 

7. Mr SCVG also raises a point previously raised in the proceedings that as these proceedings are grounded in the notion of fraud, that any issue as to costs should be reserved to the finalisation of the matters such that if it is determined that these whole proceedings have been brought about by fraud perpetrated by Ms KLD, then Mr SCVG should not have to carry the burden even in cases where he has been unsuccessful.

8. In this matter, Mr SCVG has been unsuccessful.  He has been unsuccessful as he has pursued a matter which was entirely misconceived.  It is a frolic that is not justified in any sense by the path of litigation that he has undertaken in pursuit of Ms KLD for fraud.  Even if it were the case that these proceedings are grounded on what is ultimately found to be Ms KLD’s fraud, this application would still remain a misconceived frolic on his part.  He has been wholly unsuccessful, the application was utterly misconceived, it conflicted with an earlier determination that the Registrar would be excused, it has been wasteful, it has imposed upon the parties a needless appearance and the filing of needless material without arguable cause.  Costs will be awarded.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of 18 May 2020.

Associate: 

Date:  19 May 2020