Arnet & Arnet

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.