Atkinson & Atkinson (No 2)

[2019] FamCA 437

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON (NO. 2) [2019] FamCA 437

FAMILY LAW – COSTS – Costs application made by the Independent Children’s Lawyer – Consideration of applicable principles – Where defended parenting proceedings ultimately determined on an undefended basis – Where significant issues for determination – Where orders ultimately made as contended for by Independent Children’s Lawyer and the mother – Ordered that the father pay by way of contribution to the Independent Children’s Lawyer’s costs the sum of $3,551.35.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 10.11(4), 19.18(1)

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Parke & the Estate of the Late A.Parke (2016) FLC 93-748

APPLICANT: Ms Atkinson

RESPONDENT: Mr Atkinson

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyers

FILE NUMBER: PAC 4343 of 2013

DATE DELIVERED: 4 July 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received 18 June 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Fay Rose Legal

SOLICITOR FOR THE RESPONDENT: Self- represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyers

Orders

1. That within one month from this date the father Mr Atkinson pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the sum of $3,551.35 subject to any waiver granted by Legal Aid NSW.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkinson & Atkinson (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4343  of 2013

Ms Atkinson

Applicant

And

Mr Atkinson

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the application by the Independent Children’s Lawyer (ICL) in these proceedings for an order for costs of and incidental to the ICL’s engagement in these proceedings. Such order is sought against the father.

2. These proceedings relate to an Initiating Application filed by the wife in April 2017 seeking final parenting orders in relation to the child X born in 2013.  These proceedings form part of a long history of litigation between the parties in the Federal Circuit Court of Australia and Family Court of Australia dating back to November 2013.

3. The mother has three older children from a previous marriage, Ms W aged 20, P aged 16 and T aged 13. These children live with the mother.

4. The father has three older children from a previous marriage, Mr Q aged 21, R aged 16 and S aged ten. The father did not spend time with his older children during his relationship with the mother.

5. The child has lived with the mother and had spent supervised time with the father since May 2017 although it appears that the father disengaged from supervised time with the child in or around the time that the expert report was released.

6. On 20 February 2018 during a case management list the father told the Court that he would not be taking any further part in the proceedings, however, his solicitor continued to engage in the proceedings.

7. In June 2018 it was ordered, with the consent of the parties, that an expert be appointed to provide the Court with an Expert Report. The parties were interviewed and observed by the expert in October and November 2018.

8. The Expert Report was released to the parties on 27 February 2019.

9. On 18 March 2019 trial directions were made to ready the matter for final hearing.

10. On 16 May 2019 a compliance check was conducted and the father had not filed documents in compliance with trial directions. On this date the father filed a Notice of Discontinuance. Rule 10.11(4):

    If a party discontinues a case, another party may apply for costs within 28 days after the Notice of Discontinuance is filed.

11. The ICL applies for costs against the father.

12. Final orders were made today on an undefended basis as follows:

    (1)That the mother have sole parental responsibility for the child X born … 2013 (“the child”).

    (2)That the child live with the mother.

    (3)That the child spend no time with and have no contact with the father.

    (4)That the father is restrained from contacting or approaching the child in any way.

    (5)That the father be restrained from approaching any school, child care facility or extra-curricular activity on which the child may attend from time to time.

    (6)That the mother be entitled to travel outside of the Commonwealth of Australia with the child X, male, born … 2013 without the consent of the father.

    (7)That the mother may apply for an Australian travel document (passport) for X born … 2013 without first obtaining the consent of the father.  

ICL and Costs

1. The ICL seeks an order that the father pay one half of the ICL’s costs in the sum of $3,551.35 

2. The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.

3. Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.

4. The relevant considerations in relation to an order for costs are set out in s 117(2A).

5. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:

   a)The financial circumstances of each of the parties to the proceedings;

   b)Whether any party has legal aid and the terms of any grant of aid;

   c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

   d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g)Such other matters as the Court considers relevant.

6. Section 117(3) provides:

   To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.

7. Section 117(4) provides:

   However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

   (a)a party to the proceedings has received legal aid in respect of the proceedings; or

   (b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

   The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

8. Section 117(5) provides:

   In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

9. A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, because that terminology is susceptible to ambiguity.

10. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:

    (a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or

    (b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.

11. In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.

12. The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.

13. The law is well settled that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).

14. The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:

    Method of calculation of costs

    (1)      The court may order that a party is entitled to costs:

    (a)      of a specific amount;

    (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

    (c)to be calculated in accordance with the method stated in the order; or

    (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

15. It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.

16. In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

17. Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:

    If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

18. The ICL in May 2017 by letter put the father on notice as to his obligation to contribute to the ICL’s costs. There has been no application for waiver by the father nor has the ICL been put on notice that the father is in receipt of a grant of legal aid.

19. The ICL has provided a schedule of his costs totalling $7,102.70.

20. There is little evidence as to the financial capacity of the father. It is inappropriate that the ICL be left unfunded to the effect that the burden falls on the public purse where both or either of the parties have capacity to meet the ICL’s costs even if on terms. There is reference by the father in the context of the Single Expert report to him owning real estate. However, any issue of hardship is addressed by the form of order sought by the ICL as to the order being subject to any grant of waiver by the legal aid authority.

21. There will be an order that the father pay by way of contribution to the ICL’s costs the sum of $3,551.35 subject to any waiver granted by Legal Aid NSW.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 July 2019.

Associate: 

Date:  4 July 2019