Waites and Lawson (SSAT Appeal) (No.2)
[2011] FMCAfam 293
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAITES & LAWSON (SSAT Appeal) (No.2) | [2011] FMCAfam 293 |
| CHILD SUPPORT – Costs – application for costs – no order. |
| Family Law Act 1975, s.117 |
| Waites & Lawson (SSAT Appeal) [2010] FMCAfam 42 |
| Appellant: | MR WAITES |
| Respondent: | MS LAWSON |
| File Number: | MLC 2311 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 21 January 2011 |
| Date of Last Submission: | 21 January 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Appellant: | Ms Hamill |
| Solicitors for the Appellant: | Thomas Egan |
| Counsel for the Respondent: | The Respondent appearing in person |
ORDERS
No order as for costs.
Direct that reasons for the costs order be transcribed.
Direct that the argument in relation to the costs order, made by Counsel for the applicant, be transcribed.
IT IS NOTED that publication of this judgment under the pseudonym Waites & Lawson (SSAT Appeal) (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2311 of 2008
| MR WAITES |
Appellant
And
| MS LAWSON |
Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
In this matter the appellant father seeks costs. The appellant has in his favour the fact that he succeeded on the appeal: see Waites & Lawson (SSAT Appeal) [2010] FMCAfam 42. However, that is not of itself an answer to the question of costs under s.117 of the Family Law Act. The Court must turn to the relevant factors under the legislative provision.
(a) The financial circumstances of the parties
The mother’s financial circumstances are certainly not strong. The father’s financial circumstances, on paper, appear weaker given that he has worked for a period of time for his current wife at well below proper wages.
However, taking the circumstances of the case as a whole, it seems that throughout the period the father had a capacity to earn the market rate for the types of activities that he undertook in the business. In all likelihood, the father would have been paid at the market rate if the option was either he continue in the business or work for another, which would have left his financial circumstances better than those of the mother.
(b) Whether any party is in receipt of legal aid
Neither party is in receipt of legal aid.
(c) Conduct of the parties in the proceedings
The proceedings before this Court have been conducted with appropriate care and alacrity. Both parties have complied with the trial directions, appeared in court and have argued their points neatly on the appointed day. In a general sense, both parties participated in the proceedings as they were requested to.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
There have been no wasted costs as a result of any non-compliance or failure by the parties to properly conduct these proceedings.
(e) Whether any party to has been wholly unsuccessful in the proceedings
The mother has been unsuccessful as a respondent in the appeal.
(f) Whether either party has made an offer in writing to the other party to settle
There is no formal offer that has been put in this case.
(g) Such other matters as the court considers relevant
As an appeal from the Social Security Appeals Tribunal (‘SSAT’), the circumstances leading up to the appeal to this Court should also be taken into account. Unlike other legal proceedings where an appeal follows a claim and trial before a trial court, the appeal here follows administrative proceedings before a tribunal after administrative steps were taken by the Child Support Agency (‘CSA’).
If one compares it to the traditional method of dealing with maintenance, some important factors become apparent. Traditionally, a person with the children’s care, such as the respondent, would apply to the court for a maintenance order and the court would assess the amount. Those proceedings would ordinarily not result in a costs order unless offers were made. That would usually then be the end of the matter unless there was an appeal. Under the child support scheme, administrative assessments take place relying on a formula. It is recognised that the formula will not always produce the right result and hence there are processes for seeking departure.
The formula relies heavily upon people lodging their tax returns in a timely fashion and upon assumptions that people will arrange their affairs in the usual manner one would expect were there not child support implications. In this case it is difficult to conclude that the father has arranged his affairs in the manner that he would have, but for the child support assessment. The father and his current wife operate a business, which is in her name. There would be taxation advantages to the current couple by wholly sharing the profits of the company. Instead the bulk of the profits either remain with the current wife or with the company. This is borne out by the table referred to by the SSAT. The income earned by the father appears far below what is appropriate for the role he performs in the company. In addition, the delays in lodging his tax returns have resulted in skewed child support assessments.
A departure proceeding was brought, but due to the lack of detailed information it was unsuccessful. The current circumstances are that the administrative process had resulted in the somewhat absurd or at least surprising outcome where the mother is now in debt to the CSA to repay the father approximately $10,000. On any reasonable outcome of the SSAT proceedings, the real question, on a practical level, is the extent to which there should be a child support contribution over and above that already paid by the father.
The SSAT in this case have made an error, which has resulted in the appeal being allowed. The Tribunal were not induced into this error by the mother. Due to the way in which this error has arisen, an appeal costs fund certificate would have been issued were this an appeal from a trial judge. However, the Government has not included the SSAT in the tribunals for which appeal costs fund certificates can be issued. Whether this is an oversight or a policy decision is not a matter that the Court should speculate upon. The result is that this Court cannot issue such a certificate. The question then arises as to whether the costs of these proceedings should be borne by the mother or by the father, or each bear their own costs.
Looking at the matter as a whole, it seems that if the father had arranged his financial affairs in the normal fashion, there would be no need to confront the problems that have arisen in the case and which have led to this appeal. It is also very likely that the father will ultimately have a liability to the mother for child support. The real question is that of quantum. When one looks at all of these factors it would not be appropriate to order that the mother pay any costs in respect to these proceedings. I therefore refuse the father’s application for costs.
I direct that the transcript of the argument and my reasons for the costs order be transcribed so that the SSAT can have the benefit of same should they be relevant in future proceedings.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 21 January 2011
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