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

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

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

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.
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.
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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atkinson & Atkinson (No 2)

Details

AGLC: Atkinson & Atkinson (No 2) [2019] FamCA 437
Case: [2019] FamCA 437
Decision Date: 4 July 2019

CaseChat Overview and Summary

In *Atkinson & Atkinson (No 2)*, Foster J of the Family Court of Australia considered an application for costs made by the Independent Children’s Lawyer (ICL). The proceedings concerned parenting matters between the parents, Mr and Mrs Atkinson, which were ultimately determined on an undefended basis. Despite the undefended nature of the final determination, the court acknowledged that significant issues had been before it for consideration.

The central legal issue before the court was the application of the principles governing costs in family law proceedings, specifically in relation to the ICL's entitlement to recover their costs. The court was required to determine whether the circumstances warranted an order for one party to contribute to the ICL's costs, and if so, on what basis and to what extent.

Foster J applied the principles relevant to costs in family law, noting that while costs are not generally awarded as of right, they may be ordered in accordance with the court's discretion. In this instance, the court found that the significant issues that had been before it, coupled with the fact that the final orders made were consistent with the positions advocated by the ICL and the mother, justified an order for the father to contribute to the ICL's costs.

Consequently, the court ordered that 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 within one month from the date of the order, subject to any waiver granted by Legal Aid NSW.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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