Warren and Child Support Registrar and Anor (Costs) - [2011] FamCAFC 118

FAMILY COURT OF AUSTRALIA

WARREN & CHILD SUPPORT REGISTRAR AND ANOR (COSTS)

[2011] FamCAFC 118

FAMILY LAW - COSTS – Where the father’s appeal was wholly unsuccessful – Where neither the father’s financial circumstances nor any other matters raised by him would disincline the Court to award costs in favour of the Child Support Registrar (CSR) – Father ordered to pay the CSR’s costs.

Family Law Act 1975 (Cth) s 117(2A)

APPELLANT:

Mr Warren

FIRST RESPONDENT:

Child Support Registrar

SECOND RESPONDENT:

Mrs Warren

FILE NUMBER:

111

2010

APPEAL NUMBER:

PAC

2802

2010

DATE DELIVERED:

31 May 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

18 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 August 2010

LOWER COURT MNC:

[2010] FMCAfam 975

REPRESENTATION

REPRESENTATION FOR THE APPELLANT:

Self represented

COUNSEL FOR THE FIRST RESPONDENT:

B.D. Kaplan

SOLICITOR FOR THE FIRST

RESPONDENT:

Australian Government Solicitor

REPRESENTATION FOR THE SECOND RESPONDENT:

No appearances

Orders

That the appellant pay the Child Support Registrar’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 111 of 2010

File Number: PAC 2802 of 2010

Mr Warren

Appellant

And

Child Support Registrar

First Respondent

And

Mrs Warren
Second Respondent

REASONS FOR JUDGMENT (Revised)*

COSTS

On 28 April 2011, for reasons which it then published, the Court dismissed the appeal of Mr Warren (“the appellant”) against orders made by Federal Magistrate Henderson in proceedings between himself, his former wife Mrs Warren (“the mother”) and the Child Support Registrar (“the CSR”).
The Court then reserved the CSR’s costs of the appeal and afforded the unsuccessful appellant the opportunity to make submissions in opposition to the CSR’s costs application.
On 17 May 2011 written submissions were received from the appellant pursuant to the Court’s orders of 28 April 2011.
The appellant raised a number of matters under the headings “Child’s best interests paramount consideration in making a parenting order”, “Reparation for certain losses and expenses relating to children” and, later “The mother has failed to comply with Orders for Access made in The Family Court of Australia by His Honour Justice Baker 22^nd October 1993”.
None of those matters can assist the appellant’s opposition to the making of an order for costs against him if the Court is otherwise, having considered the matters made relevant in that regard by s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), of the opinion that the circumstances of the case justify the making of an order for costs against him.
Quite apart from the absence of any factual basis for them, the submissions in relation to the children of the appellant’s former marriage have no relevance to the present costs application. To read the appellant’s submissions in relation to the topics which the Court has identified is to realise why that is so.
As the Court suggested in its reasons for dismissing the appeal, given that the appellant was wholly unsuccessful, and was always going to be wholly unsuccessful, the only basis upon which he might realistically have hoped to avoid an order for costs would be that of hardship if it were established.
In its Reasons for Judgment of 28 April 2011, the Court relevantly said:
39.The Court will however order that the appellant have leave to file and serve submissions in opposition to the making of a costs order against him and a verified financial statement disclosing his assets and liabilities, income and fixed expenditure. A period of 21 days in which to file any such submissions and/or affidavit of financial circumstances would be reasonable in the circumstances.
The appellant has not filed a verified financial statement. That failure is significant. It is one thing to make assertions in submissions, another altogether to pledge on oath or affirm that representations thus made are true and correct. Given his experience with litigation and his intelligence, it is difficult to accept that the failure to adopt on oath or affirmation the financial matters referred to in his submissions can have been an oversight on the part of the appellant.
As will be seen, even if the Court accepts, which it will for the purpose of these Reasons, that the matters asserted by the appellant are true, that does not change anything. It is also significant that the appellant has chosen to make no disclosure whatsoever of his assets and liabilities, notwithstanding the clear wording of the Court’s earlier judgment in the paragraph set out above.
There is no evidence before this Court that the CSR has “far more assets” than has the appellant, but even accepting the appellant’s assertion would not change anything. The CSR is a publicly funded body, performing statutory duties.
To the extent that the appellant seeks to rely upon his assertion that “The CSA [sic] has far more assets that [sic] the unfortunate father in this case”, the Court does not accept that to be a legitimate basis for declining to exercise the discretion to award costs against the appellant if it is otherwise properly enlivened in favour of the CSR.
Where, as here, the CSR has been wholly successful, before both the learned Federal Magistrate and this Court, in circumstances where the appellant raised the same arguments in both courts, to decline to award costs on this basis, if it were otherwise appropriate to do so, would be tantamount to countenancing an abuse of the Court’s processes. If the CSR is entitled to an order for costs then any financial superiority the CSR has over the appellant would not disincline the Court to award costs in favour of the CSR.
Quite apart from the fact that they are unverified, even accepting the financial information which the appellant has chosen to present does not establish hardship. The appellant asserts that his weekly costs “as variable and estimated” exceed his “income weekly” by approximately $130.00. How that asserted shortfall is met is not even hinted at by the appellant. Either the appellant has a greater weekly income than he has disclosed, or he does not incur the weekly costs which he asserts he does.
Significantly, the appellant has not disclosed the source of his “income weekly”. It might safely be assumed, he having not asserted it, that the appellant is not dependent upon social security benefits. The Court struggles to accept that the failure to provide any verification of the source of his weekly income or to disclose any information which could conceivably lead to that source being identified was inadvertent. It is however consistent with an intention to render recovery of the appellant’s unmet Child Support obligations more difficult than would otherwise be the case.
Notwithstanding that the appellant has not disclosed the ownership of any assets, his claimed weekly expenses are consistent with his owning real estate and a motor vehicle. Were it otherwise, the appellant would not assert that he pays “Land Rates” of $34.40 or “H2O”, which presumably is a reference to water rates, of $16.60 per week. He would be also unlikely to be paying “House (Insurance+)” of $27.45 per week.
Significantly, the appellant has not asserted that he pays rent or mortgage instalments. It can thus be inferred that the appellant owns real estate and that such real estate as he owns is unencumbered. Again, significantly, no clue is provided by the appellant as to the location or address of the real estate which he evidently owns. This can hardly have been inadvertent, and is consistent with an intention to render recovery of his unpaid Child Support obligations more difficult than would otherwise be the case.
The appellant asserted that he pays “Car (Insurance+)” of $99.00 per week. No vehicle or vehicles has or have been disclosed by the appellant, notwithstanding the fact that he asserts that he pays in excess of $5000.00 per annum by way of car insurance.
How the appellant comes to incur weekly expenditure of $44.00 “Volunteering” is not clear and has not been explained by the appellant.
Having failed to make anything resembling a full and frank disclosure of his true financial position, and having regard to a number of the items which he has disclosed, the appellant has not demonstrated that a costs order against him would cause hardship. To the extent that, however inadequately disclosed or verified his living expenses might be, the appellant could not meet a costs order out of income, that would not advance his cause. Although the appellant may not realise it, the Court is entitled to have regard to assets when determining a costs application.
The clear implication arising from the appellant’s financial disclosures in this case is that there is unencumbered real estate. Nothing to which the Court has been referred establishes that the appellant ought not be obliged to pay any costs awarded against him, and his arrears of Child Support, out of the capital represented by his undisclosed real estate holdings.
Nothing raised by the appellant would disincline the Court to award costs to the CSR if it were otherwise appropriate to do so by reason of his financial position, or the impact of any order for costs against him on it.
The appellant asserted that “Their [sic] have been numerous visits and consultations with legal aid to endeavour to understand and resolve this case”. Whether or not that assertion is true, that is not a matter which ought disentitle the CSR to an order for costs if the CSR establishes an entitlement to such an order.
Ironically, one of the matters relied upon by the appellant in relation to this topic is “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court”, in reliance upon the mother’s asserted failure to comply with access orders made more than seventeen years ago. The more relevant failure of a party to comply with previous orders of the Court is that of the appellant in relation to his Child Support obligations. At its highest, nothing raised by him in relation to this topic can assist the appellant’s cause.
As the Court’s primary Reasons for Judgment make clear, the appellant chose, as was his right, to prosecute a hopeless appeal. Unsurprisingly in those circumstances, the appellant was wholly unsuccessful.
The Court is of the opinion that the circumstances justify an order for costs as sought by the CSR. To decline to award costs to the CSR would, in the circumstances of this case, be tantamount to condoning an abuse of the Court’s processes.
The Court perceives that the CSR seeks costs on a party and party basis. Had the CSR sought costs on an indemnity basis, the discretion to award them may well have been enlivened. No criticism of the CSR in not seeking costs on an indemnity basis is intended by these remarks. Rather, the Court seeks to make clear to the appellant that he is perhaps fortunate in only being obliged to pay the CSR’s costs on a party and party basis, rather than on the more substantial basis of solicitor and client.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 31 May 2011.

Associate:

Date: 31.05.11

* A typographical error in paragraph 9, last sentence, has been corrected by correction of the word “cannot” by the word “can”.