SOMERS & SOMERS (No.2) - [2014] FCCA 760

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERS & SOMERS (No.2)

[2014] FCCA 760

Catchwords:
CHILD SUPPORT – Child support agreement – enforcement summons – enforcement of child support agreement.

COSTS – Application for costs – whether either party wholly unsuccessful – consideration of parties’ financial circumstances – whether Applicant seeks costs for matters already decided – costs awarded on a party and party basis – where the Applicant is herself a (occupation omitted).

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.90G, 90KA

Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, Sch. 1, Part 2, Div. 1

Cases cited:
In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92-127
Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123
In the Marriage of Kelly (No.2) (1981) 7 Fam LR 762; FLC 91-108
Penfold v Penfold (1980) 144 CLR 311
Somers & Somers [2014] FCCA 128
Somers & Somers [2013] FCCA 162
Somers & Somers (No.2) [2013] FCCA 1992

Applicant:

MS SOMERS

Respondent:

MR SOMERS

File Number:

SYC 3026 of 2008

Judgment of:

Judge Scarlett

Hearing date:

11 March 2014

Date of Last Submission:

11 March 2014

Delivered at:

Sydney

Delivered on:

15 April 2014

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondent:

Ms Donnelly

Solicitors for the Respondent:

KDB Holmes Solicitors

ORDERS

The Respondent is to pay the Applicant’s costs fixed in the sum of $6,480.13.
The Respondent is allowed one (1) month to pay.

IT IS NOTED that publication of this judgment under the pseudonym Somers & Somers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3026 of 2008

MS SOMERS

Applicant

And

MR SOMERS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for costs arising out of an application to enforce a child support agreement. On 28^th January 2014 an order was made that the Respondent was to pay to the Applicant the sum of $7,256.00 by way of monies due under the child support agreement (Somers & Somers[1]). The Applicant seeks an order that the Respondent should pay her costs in a total amount of $8,133.13.
[1] [2014] FCCA 128
The Respondent submits that there is no basis for an order for costs to be made and seeks that the Application should be dismissed. The Respondent contends that there are no “justifying circumstances”[2] warranting the making of an order for costs in favour of the Applicant against the Respondent.
[2] Penfold v Penfold (1980) 144 CLR 311 at 315

Background

The history of litigation between the parties was set out in some detail in Somers & Somers[3] at [23]-[48] and, more briefly in an earlier costs decision, Somers & Somers (No.2)[4] at [5]-[19] and the decision earlier this year in which the Respondent was ordered to pay the sum of $7,256.00 under the child support agreement, Somers & Somers[5] at [3]-[16].
[3] [2013] FCCA 162

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SOMERS & SOMERS (No.2)

Details

AGLC: Somers and Somers (No.2) [2014] FCCA 760
Case: [2014] FCCA 760
Decision Date: 15 April 2014

CaseChat Overview and Summary

In *Somers & Somers (No.2)*, Judge Scarlett of the Federal Circuit and Family Court of Australia considered an application for the enforcement of a child support agreement and an associated application for costs. The dispute concerned the respondent's alleged failure to comply with the terms of the agreement.

The primary legal issue before the court was whether the respondent had breached the child support agreement, thereby necessitating enforcement action. A secondary issue arose regarding the entitlement to and quantum of costs, specifically whether the applicant had been wholly unsuccessful in her applications and whether the parties' financial circumstances warranted any deviation from the usual costs order.

Judge Scarlett found that the respondent had indeed failed to comply with the child support agreement. In relation to costs, the court determined that the applicant had not been wholly unsuccessful, and therefore, an order for costs was appropriate. The court considered the financial circumstances of both parties in fixing the quantum of the costs awarded.

The court ordered that the respondent pay the applicant's costs, fixed at $6,480.13, with one month allowed for payment.

Orders

Orders of the court

The Respondent is to pay the Applicant’s costs fixed in the sum of $6,480.13.

The Respondent is allowed one (1) month to pay.

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

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