Allred & Allred (No 6)
[2023] FedCFamC1F 522
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allred & Allred (No 6) [2023] FedCFamC1F 522
File number(s): PAC 2506 of 2020 Judgment of: BERMAN J Date of judgment: 28 June 2023 Catchwords: FAMILY LAW – COSTS – Circumstances justifying order – Where the ICL seeks an order for costs – Where the quantum of costs is not disputed – Where the mother is in receipt of a grant of legal aid – Consideration of whether if the order was made, the father would suffer financial hardship – Consideration of s 117 of the Act – No Order made. Legislation: Family Law Act 1975 (Cth) ss 117(2A), 117(3), 117(4), 117(4)(b) Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 16 March 2023 Place: Adelaide via MS Teams Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Inner West Solicitors Pty Ltd Counsel for the Respondent: Mr Iuliano Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
PAC 2506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLRED
Applicant
AND: MS ALLRED
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
28 June 2023
THE COURT ORDERS THAT:
1.The Application of the Independent Children’s Lawyer for costs against Mr Allred and Ms Allred, be dismissed with no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Allred (“the father”) and Ms Allred (“the mother”) are the parents of X born 2005 and Y born 2010 (collectively “the children”).
The parties married in 1993 and moved to Australia in or about 1998. The parties separated on 11 February 2020.
The father commenced the proceedings by Initiating Application on 28 May 2020.
The children have not spent time with the father since 11 February 2020. X will soon be 18 years of age. The mother concedes that X is able to make his own arrangements in terms of the extent to which he would wish to communicate and/ or spend time with his father.
The mother seeks orders that Y spend no time with the father but concedes that at some point, if Y sought to communicate with the father, then she would facilitate the same.
The mother alleges that the father had perpetrated entrenched and ongoing family violence over the 25 years of their relationship. The father denied the mother’s allegation and for his part considers that the mother has adopted a strategy to disrupt the children’s relationship with him.
The proceedings involved an Independent Children’s Lawyer (“ICL”).
At the commencement of the proceedings, the ICL proposed orders that would provide for the children to live with the mother and spend no time with the father.
The ICL also relied upon the report of Dr C (“Dr C”) attached to his affidavit of 10 March 2021.
The matter proceeded by way of an undefended hearing on 16 March 2023. Judgment was reserved.
The substantive judgment is delivered contemporaneously with this judgment. The final Orders provide for the mother to have sole parental responsibility for the children, that they live with her and spend no time with the father.
At the conclusion of the undefended hearing, the ICL sought costs in the sum of $13,713.45. The application is that each of the parties pay one half namely, $6,856.72.
An order was made that required the parties to each prepare a Financial Statement setting out their income, assets and liabilities.
The question to be considered is whether each of the parties would suffer financial hardship if ordered to pay one half of the ICL’s costs.
HOW SHOULD THE ICL’S COSTS APPLICATION BE DETERMINED?
I have regard to the provisions of ss 117(3) and (4) of the Family Law Act 1975 (Cth) (“the Act”). A determination as to whether a costs order should be made is to be determined by the application and the provision of s 117(2A) of the Act.
Accordingly, it is necessary to consider the financial circumstances of each of the parties to ascertain the extent to which the orders, as sought by the ICL, would create hardship.
The father filed a Financial Statement dated 31 March 2023. He sets out that his income is as a professional with a weekly income of $1,480. The Financial Statement is difficult to understand in that in Part D, the father has added the words:-
MOTHER LIED TO COURT ON HER FINANCIAL STATEMENT DATED 1/7/22, AS FATHER HAS ALWAYS BEEN PAYING CHILD SUPPORT.
(As per original)
Part E and Part F have been crossed out and in Part G, the father lists his weekly personal expenditure as $575 in respect of mortgage/ rent, $190 in repayment of the mother’s personal loans and $130 to N Bank in respect of an allegation that the mother used the Visa credit card to pay for her sister’s boyfriend’s holiday in 2018.
At Part K, the father sets out the following liabilities:-
LIABILITY AMOUNT Loan to N Bank $29,200 Credit Card liability to N Bank $9,800 Loan for solicitors $24,000
The Part N expenses disclose the following liabilities:
LIABILITY AMOUNT Food $200 Household supplies $180 Gas $50 Electricity $90 Telephone $50 Chemist and Pharmaceutical $25 TOTAL (including rent) $1,170
In addition, the father contends that he pays $320 per week to N Bank.
If there can be confidence in the veracity of the information included by the father in his Financial Statement, then his expenditure is more than his income.
Whilst I have a concern as to the accuracy of the information included by the father in his Financial Statement, there is insufficient evidence to go behind the content of the document and there was no suggestion by the ICL that there was to be any challenge to the reported income and/or expenditure by the father.
The mother is in a similar position and in respect to the proceedings, she is in receipt of a grant of Legal Aid. As such, a costs order cannot be made.
While I accept that the broad principle is that a cost order sought by the ICL should usually be considered favourably, if the order sought would place the parties in significant hardship then pursuant to s 117(4)(b) of the Act, a cost order should not be made.
I consider that there is likely to be significant hardship caused to each of the parties should they be required to meet the costs of the ICL.
I make orders as appear at the commencement of these reasons.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 28 June 2023
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