Wilder and Child Support Registrar (No. 2)
[2009] FamCAFC 168
•7 September 2009
FAMILY COURT OF AUSTRALIA
| WILDER & CHILD SUPPORT REGISTRAR (NO. 2) | [2009] FamCAFC 168 |
| FAMILY LAW – APPEAL – Application in an Appeal - appropriate matter to quantify the amount of costs - amounts claimed are reasonable - established justifying circumstances – Father to pay costs |
| Family Law Act 1975 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) |
| Hendy & Deputy Child Support Registrar and Another (2001) 27 FamLR 641 |
| APPLICANT: | CHILD SUPPORT REGISTRAR |
| RESPONDENT FATHER: | MR WILDER |
| FILE NUMBER: | SYC | 1997 | of | 2008 |
| APPEAL NUMBER: | EA | 86 | of | 2009 |
| DATE DELIVERED: | 7 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 7 September 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 June 2009 |
| LOWER COURT MNC: | [2009] FamCA 742 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Fusitu’a, solicitor |
| SOLICITOR FOR THE APPLICANT: | Australian Government Solicitor |
| THE RESPONDENT: | Mr Wilder in person |
Orders
The Respondent Father pay the costs of the Child Support Registrar of and incidental to the proceedings concluded by me by Judgment of
3 September 2009.
That the costs referred to in the preceding order be assessed in the amount of the $1048.91.
That the amount ordered in the preceding order be paid from the proceeds of sale of the property owned by the Respondent Father situated at and known as [the Blue Mountains property].
IT IS NOTED that publication of this judgment under the pseudonym Wilder & Child Support Registrar (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 86 of 2009
File Number: SYC 1997 of 2008
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR WILDER |
Respondent
REASONS FOR JUDGMENT
Before me for hearing is an oral application by the Child Support Registrar seeking an order for costs of and incidental to proceedings which were concluded by me today. Today I made an order that an application in an appeal filed on 10 August 2009 on behalf of the Father be dismissed. In the application the Father had sought an extension of time within which to file an application for leave to appeal against orders that were made by Fowler J on 24 June 2009. His Honour had dealt with an application for review of orders which were made by Judicial Registrar Johnston on 24 March 2009.
I do not propose in these brief reasons to set out any more than what I have already said in relation to the proceedings which were concluded by me today. It is sufficient to say that they related to the enforcement of a child support debt and that the proceedings have been on foot for many years.
The amount of costs which is sought by the Child Support Registrar is a total of $1048.91. I was provided with a detailed schedule of how that amount is made up (Exhibit A) and I understand, and accept, that it does not include any costs of the appearance before me today for the purpose of taking judgment.
In brief submissions I was referred by the solicitor for the Child Support Registrar to a decision of the Full Court in Hendy & Deputy Child Support Registrar & Another (2001) 27 Fam LR 641 (“Hendy”) and, in particular, at paragraphs 112 to 118 inclusive.
Section 117(1) of the Family Law Act 1975 (Cth) provides that subject to subsection (2) each party to proceedings under this Act shall bear his or her own costs.
These are proceedings under the Child Support (Registration and Collection) Act 1988 (Cth), although the power to award costs in proceedings under the Family Law Act in the circumstances in which orders may be made are governed by s 117 of the Family Law Act.
Section 117(2) of the Family Law Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A) make such order as to costs as the court considers just.
In summary, it is necessary for an applicant for costs to establish justifying circumstances.
Section 117(2A) of the Family Law Act provides that in considering what order (if any) should be made under subsection (2), the court shall have regard to the matters set out in paragraphs (a) to (g) inclusive.
In this case I had some evidence of the financial circumstances of the Father and I have referred to that evidence in my reasons delivered today. The Father also appeared before me without legal representation.
The matters of particular relevance in the current proceedings are paragraph (c) and also paragraph (e) of s 117(2A). In my reasons delivered on 7 September 2009 I dealt with, at some length, the history of the proceedings. As well, as is apparent from the orders that I have made, the Father has been wholly unsuccessful in those proceedings.
I also observe that in Hendy the Full Court at paragraph 115 referred to various matters which were identified by the trial Judge in that case as being relevant to the exercise of the discretion on the costs issue. I will not repeat all of the matters that were discussed. However, there are some matters that I observe.
First, the trial Judge in that case said that it could be argued that the proceedings were necessitated by the failure of the respondent in that case to comply with previous requirements relating to administrative assessments. In this case the Father has been pursued for recovery of a child support debt.
The trial Judge also said that the proceedings could more properly be perceived as being civil proceedings between the Commonwealth as a third party and the respondent as a citizen rather than as between parties to a marriage or parties to a relationship governed by the general philosophy of the Family Law Act which is to the effect that each party should bear their own costs. In my view, the remarks made by the trial Judge in that case are apposite to the proceedings before me.
The trial Judge also observed that costs orders are frequently made in a civil arena when there is no apparent immediate capacity in the parties to meet the orders for costs. In this case I have referred to the financial circumstances of the Father. The evidence that he gave, which is in a Financial Statement that he swore and filed, reveals that he would have the capacity to pay.
In Hendy the trial Judge continued that it would be inappropriate if a taxpayer was required to bear the entire burden of the exercise. Again, in my view, the remarks by the trial Judge in that case are apposite to the circumstances before me.
In summary, I have come to the conclusion that an order should be made. I have taken into account matters that I have identified in these brief reasons and am of the view that the Child Support Registrar has established justifying circumstances.
As to the quantum of the costs, as I indicated on an earlier occasion in discussion, given the history of the litigation, my preference would be to quantify the amount in the event that an order was made rather than make an order requiring the parties to agree within a specified time on an amount and, failing such an agreement, the amount be taxed.
In this case, in my opinion, it is an appropriate matter for me to quantify the amount of costs rather than put the parties and, of course, the taxpayer to the possibility of further costs and expense that would necessarily be incurred in a taxation process.
I have considered the schedule of costs put forward by the Child Support Registrar and, in my view, in all the circumstances, the amounts claimed are reasonable. Accordingly, I propose to make an order and to assess the quantum of the costs to be paid in the sum of $1048.91.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Appellate Division of the Family Court of Justice O’Ryan.
Associate:
Date: 15 September 2009
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