Arnet & Arnet

Case [2021] FamCA 139

FAMILY COURT OF AUSTRALIA

Arnet & Arnet [2021] FamCA 139

File number(s): SYC 3638 of 2012
Judgment of: MCCLELLAND DCJ
Date of judgment: 19 March 2021
Catchwords: FAMILY LAW – COSTS –  Costs of Independent Children’s Lawyer – Where both parties oppose the Independent Children’s Lawyer’s Application – Where the parties came to a consent position at the conclusion of the evidence at final hearing – Where both parties contend that they would experience financial hardship if an order was made for them to each pay the costs of the Independent Children’s Lawyer – Consideration given to the proportion of costs – Orders made for each party to pay the costs of the Independent Children’s Lawyer in equal shares.
Legislation: Family Law Act 1975 (Cth) s 117
Cases cited: CDJ v VAJ (No 2) (1998) 197 CLR 172
De Roma & De Roma [2013] FamCA 566
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Gahen & Gahen (No 2) [2013] FamCA 936
Lenova & Lenova (Costs) [2011] FamCAFC 141
Mallory & Mallory [2020] FamCAFC 62
Malloy & Stopford Malloy [2021] FamCAFC 23
Stoian & Flemming (Costs) [2014] FamCA 944
Number of paragraphs: 32
Date of last submission/s: 26 February 2021
Place: Sydney by written submissions

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ORDERS

SYC 3638 of 2012
BETWEEN:

MR ARNET

Applicant
AND:

MS ARNET

Respondent

LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS THAT:

1.That within six (6) months of the date of these orders, each party shall pay to Legal Aid NSW the sum of $7121, being equal shares of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Arnet & Arnet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McClelland DCJ:

INTRODUCTION

  1. This decision concerns an Application brought by the Independent Children’s Lawyer (“ICL”) for Mr Arnet (“the father”) and Ms Arnet (“the mother”) to pay, in equal shares, the costs of the ICL associated with their parenting proceedings.

  2. In those proceedings, the parties sought competing orders concerning their children, Y born in 2007 and X born in 2012 (collectively “the children”). Those proceedings were listed for hearing over a period of seven (7) days, being 25-26 August 2020, 9-10 September 2020, 18 December 2020, and 11-12 February 2021. Commendably, the parties were ultimately able to come to a final agreement prior to…

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Arnet & Arnet [2021] FamCA 139
Case
[2021] FamCA 139
Decision Date

CaseChat Overview and Summary

In the matter of *Arnet & Arnet*, heard in the Family Court of Australia, the applicant father and respondent mother both opposed the Independent Children’s Lawyer's (ICL) application for costs. The parties ultimately reached a consent position regarding parenting orders at the conclusion of the final hearing. Both parties contended that they would experience financial hardship if ordered to pay the full costs of the ICL.

The central legal issues before the court were how to exercise its discretion under section 117(3) of the *Family Law Act 1975* (Cth) regarding the apportionment of the ICL's costs, and whether to consider the parties' financial circumstances and conduct under section 117(2A) of the Act. Specifically, the court had to determine if either party's conduct had unreasonably prolonged the proceedings, and to what extent their respective financial positions should influence the cost order.

McClelland DCJ considered the relevant factors under section 117(2A), including the conduct of the parties and their financial circumstances. The court found that neither party was wholly successful in their initial applications, and that their diametrically opposed positions, which were resolved after hearing evidence from a single expert, did not result in an unreasonable prolongation of the proceedings. While both parties raised financial hardship as a reason not to bear half the costs, the court noted the father's reliance on general knowledge of his employment and the impact of COVID-19, and the mother's provision of a financial statement.

Ultimately, the court was not satisfied that either party should bear a greater responsibility for the ICL's costs. Accordingly, the court ordered that each party pay the costs of the Independent Children’s Lawyer in equal shares, amounting to $7,121 each.

Orders

Orders of the court

SYC 3638 of 2012

BETWEEN:

MR ARNET

Applicant

AND:

MS ARNET

Respondent

LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS THAT:

1. That within six (6) months of the date of these orders, each party shall pay to Legal Aid NSW the sum of $7121, being equal shares of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is incumbent upon the Court, in the exercise of its discretion, to consider and apply those provisions set out in s 117(2A). However, there is nothing to prevent any factor being the sole foundation for any order for costs being made: see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [130]. EVIDENCE The father relies upon the following:(a)Written submissions filed 26 February 2021; and(b)Costs memorandum of the father dated 11 February 2021. The mother relies upon the following: (a)Written submissions filed 26 February 2021; (b)Costs notice of the mother dated 16 February 2021; and (c)Financial Statement dated 26 February 2021. CONSIDERATION I have considered each of the paragraphs contained in s 117(2A) of the Act and have determined that the factors most relevant to my decision are those set out at paragraphs (a), (c) and (e). Conduct of the parties and wholly unsuccessful It is not contested that the parties were able to come to an agreement based largely on the recommendations and oral evidence of the Single Expert, following evidence being presented at final hearing including cross examination by the Independent Children’s Lawyer of the Single Expert. The mother, however, contends that due to the conduct of the father, including the father agitating for certain orders, such as a relocation of one of the children to his primary care, she was put in a position where she had no alternative but to resist the father’s application. Accordingly, she contends that she, therefore, should not be liable for half of the ICL’s costs. Respectfully, I agree with the submission of the father that “neither party was wholly successful in relation to their applications”. In that respect, at final hearing, the mother sought that the children continue living with her and the father spend five (5) days per fortnight with X and time as agree with Y. Comparatively, the father sought that X relocate into his primary care and spend time with the mother for five (5) days per fortnight and for Y to remain living with the mother and spend time with him as agreed. Ultimately, with the consent of the parties, orders were made for Y to remain living with the mother and spend time as agreed with the father and for X to live with the parents in an equal time arrangement. In circumstances where by both parties held diametrically opposed positions until they received the benefit of the oral evidence of the Single Expert, I do not find that the conduct of one or either of the parties resulted in the unreasonable prolonging of the proceedings. Financial circumstances I note that a consideration of the parties financial circumstances, pursuant to s 117(2A)(a), necessarily overlaps with the concept of financial hardship as referred to in s 117(4), which I have set out. Both parties substantially rely on this factor as the basis upon which they should not be required to pay half of the ICL’s costs.

Decision

Reasons for decision

In respect to the proportion of the costs of the ICL, I note that s 117(3) of the Act provides a broad discretion in respect to how the court apportions costs. I am not satisfied, for the reasons outlined above, that either party should bear a greater responsibility of the costs of the ICL. I will, therefore, make an order for costs in favour of the ICL for the father and mother to pay in equal shares, in the sum of $7,121 each, the costs of the ICL.CONCLUSION Accordingly, for these reasons, I make the orders as set out at the commencement of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

The mother relies upon the following: (a)Written submissions filed 26 February 2021; (b)Costs notice of the mother dated 16 February 2021; and (c)Financial Statement dated 26 February 2021. CONSIDERATION I have considered each of the paragraphs contained in s 117(2A) of the Act and have determined that the factors most relevant to my decision are those set out at paragraphs (a), (c) and (e). Conduct of the parties and wholly unsuccessful It is not contested that the parties were able to come to an agreement based largely on the recommendations and oral evidence of the Single Expert, following evidence being presented at final hearing including cross examination by the Independent Children’s Lawyer of the Single Expert. The mother, however, contends that due to the conduct of the father, including the father agitating for certain orders, such as a relocation of one of the children to his primary care, she was put in a position where she had no alternative but to resist the father’s application. Accordingly, she contends that she, therefore, should not be liable for half of the ICL’s costs. Respectfully, I agree with the submission of the father that “neither party was wholly successful in relation to their applications”. In that respect, at final hearing, the mother sought that the children continue living with her and the father spend five (5) days per fortnight with X and time as agree with Y. Comparatively, the father sought that X relocate into his primary care and spend time with the mother for five (5) days per fortnight and for Y to remain living with the mother and spend time with him as agreed. Ultimately, with the consent of the parties, orders were made for Y to remain living with the mother and spend time as agreed with the father and for X to live with the parents in an equal time arrangement. In circumstances where by both parties held diametrically opposed positions until they received the benefit of the oral evidence of the Single Expert, I do not find that the conduct of one or either of the parties resulted in the unreasonable prolonging of the proceedings. Financial circumstances I note that a consideration of the parties financial circumstances, pursuant to s 117(2A)(a), necessarily overlaps with the concept of financial hardship as referred to in s 117(4), which I have set out. Both parties substantially rely on this factor as the basis upon which they should not be required to pay half of the ICL’s costs. The father has not introduced any sown evidence of his financial situation and contends that the Court has knowledge of the following: a.Each of the parties is in paid employment; b.Each of the parties was privately represented during the hearing; and c.Each of the parties briefed Counsel at the hearing. …a.The father currently works as a self-employed allied health professional and relies on the income received through his personal exertion; b.The father lives in a household which includes three dependants, including two adult children and one child from his relationship with [the mother]; andc.The Court would be aware that COVID-19 has affected a number of industries, particularly those involving physical contact.