Balcombe & Gaffey

[2021] FamCA 493

FAMILY COURT OF AUSTRALIA

Balcombe & Gaffey [2021] FamCA 493

File number(s):

SYC 648 of 2017

Judgment of:

HANNAM J

Date of judgment:

9 July 2021

Catchwords:

FAMILY LAW – COSTS – Where at final hearing the ICL sought an order for costs – Where ICL seeks that the parties pay costs in equal proportion – Where an order has already been made with the consent of the father that he pay half of the ICL’s costs – Where an order for costs would not cause the mother financial hardship – Where it is justified that the mother pay a contribution to the ICL’s costs.

Legislation:

Family Law Act 1975 (Cth) s117

Cases cited:

D & D (Costs) (No. 2) (2010) FLC 93-435.

Penfold v Penfold (1980) 144 CLR 311

Number of paragraphs:

35

Date of last submission/s:

25 February 2021

Date of hearing:

9 February 2021

Place:

Parramatta

Counsel for the Applicant:

Ms Petrie

Solicitor for the Applicant:

Keypoint Law

Solicitor for the Respondent:

Ryan & Seton Lawyers

Counsel for the Independent Children's Lawyer:

Ms Knight

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

SYC 648 of 2017

BETWEEN:

MS BALCOMBE

Applicant

AND:

MR GAFFEY

Respondent

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	9 JULY 2021

THE COURT ORDERS THAT:

1.That within 90 days of the date of these orders, the mother shall pay to the Legal Aid Commission of NSW the sum of $2887.90 on account of the costs of the Independent Children’s Lawyer, unless otherwise waived by the Legal Aid Commission of NSW.

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 Balcombe & Gaffey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

1. Following settlement of a parenting dispute between the parties (“the mother” and “the father”) by virtue of orders made with their consent, the Independent Children’s Lawyer (“the ICL”) seeks an order that the parties equally share the payment of the ICL’s costs in the proceedings. 

2. The father has consented to an order that he pay his half share of the ICL’s costs being $2887.90 but the mother opposes an order that she pay the same amount as sought by the ICL. 

3. The question for me to determine is whether there are circumstances that in my opinion justify an order that the mother pay her share of the ICL’s costs.

   BACKGROUND

4. The parenting proceedings related to the only child of the parties (“the child”), a daughter born in 2004 and aged 16 at the time of hearing.

5. The parties separated when the child was only a few months of age.  Following separation the child lived with the mother and spent regular time with her father.

6. In November 2007 orders for the child’s parenting were made with the consent of the parties that they equally share parental responsibility for the child, that she live with the mother and spend gradually increasing time with the father until the time increased to five nights per fortnight.  As I understand it, the child’s time with the father occurred in accordance with these orders for many years.

7. In 2009 the father began living with a woman who later became his wife and the following year the child’s half-sister (“the half-sister”) was born. Over the years, through spending time in the father’s household, the child also developed a relationship with her half-sister.

8. In 2017 the child began attending a private school and at around the same time the parental relationship began to significantly deteriorate.

9. The child last spent overnight time with the father in May 2017 when she was aged 13 and thereafter has spent limited time with the father and her half-sister. 

10. From around August 2017 the mother took the child to a number of therapists and contends that in October 2017 the child was first diagnosed with meeting the criteria for Autism Spectrum Disorder (“ASD”). Thereafter the child has being diagnosed with other conditions and has received therapy from various health professionals.

11. In August 2018 the mother filed an Initiating Application in the Federal Circuit Court seeking orders in relation to the future parenting arrangements for the child.

12. Early in the proceedings the parties consented to orders that provided from them to approach a family therapist to assist the family but by December 2018 it was apparent that the child declined to participate in this family therapy.

13. The father and paternal grandparents and half-sister spent a couple of hours with the child at Christmas time in 2018 and in May 2019.

14. The proceedings were transferred to this Court in December 2019.

15. Throughout 2020 the child occasionally spent time with her half-sister facilitated by the father’s wife but she remained unwilling to participate with family therapy.  There were ongoing disputes between the parties in relation to the child’s diagnosis with various conditions and appropriate treatment.

16. At the commencement of the first day of final hearing on 9 February 2021 the parties informed the Court that they had reached agreement and tendered proposed orders. After an exchange with the bench it became apparent that some amendments needed to be made to those proposed orders and time was given to allow the parties to reach agreement on those amendments.

17. Orders were subsequently made with the consent of the parties in accordance with their agreement. These orders provide that the mother has sole parental responsibility for the child and that she provides notice to the father of any medical, education and religious decisions that she makes in relation to the child as soon as reasonably practicable. Pursuant to these orders the child is to spend time with the father in accordance to her wishes and the father is permitted to attend any medical and educational appointments in relation to the child also in accordance with the child’s wishes. Orders were also made facilitating the child spending time with her half-sister and ensuring the child has access to her own personal mobile telephone to communicate with the father and her half-sister.

18. Following the making of parenting orders the ICL pressed her application for an order that the mother contribute to the costs of the ICL in the sum of $2887.90 and made some limited oral submissions in support of this application. The ICL’s application was opposed by the mother and it was then agreed it would be appropriate for the matter to be determined in chambers on receipt of written submissions by the mother.

    THE LAW & DISCUSSION

    ICL Costs

19. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 ("the Act") sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that in the opinion of the Court justify such an order.

20. The High Court in the matter of Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

    [1] (1980) 144 CLR 311

21. The Act makes specific provision in section 117 for orders as to the costs of an ICL:

    (3)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.

    (4)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.

    (5)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.

22. The Court is conscious of the restrictions provided in section 117(4) of the Act that the Court must not make an order against a party in favour of an ICL if the party has received legal aid in the proceedings, or if the Court considers the party "would suffer financial hardship" as a result of an order to bear a proportion of the ICL’s costs.

23. It is the mother’s case that she will suffer financial hardship if an order is made that she bear a proportion of the ICL’s costs.

24. The mother has no significant assets and is currently working part time in an administrative position earning approximately $500 per week. The mother deposes that she and the child are living in rental accommodation, paying rent of $700 per week of which the mother contributes $100 and borrows $600 from her mother to cover this expense. The mother deposes that the rent will be increased shortly and she will need to move to more affordable accommodation.

25. The mother holds sole parental responsibility and deposes to being almost entirely responsible for financially supporting the child. The mother submits that the father provides minimal financial contribution towards supporting the child other than child support payments of $405 per month as assessed by the Child Support Agency to whom he was in significant arrears until 2020.

26. Despite the father agreeing to the child’s enrolment in a private school in 2017 the mother submits that she has been solely responsible for paying those school fees which are in the sum of approximately $7,000 per year. The mother deposes that she has funded the child’s schooling by borrowing money from her mother and withdrawing funds from her superannuation of which she includes evidence of two withdrawals of $10,000 in 2017 and 2019.

27. The mother deposes to owning a motor vehicle worth approximately $8,000 and superannuation interest in the sum of $229,225. She currently has a balance of $37,500 in a bank account however she deposes that these funds are funds borrowed from her mother and that they must be repaid. The mother contends that she owes to her mother $197,000 in total. She also states that she owes $4,700 to the child’s school.

28. The ICL chose not make written submissions in support of her application for costs and relevantly submitted at final hearing that the mother had previously sought a waiver from the Legal Aid Commission on the basis of financial hardship which was rejected. The mother has made a further application to the Legal Aid Commission for a waiver on the basis of financial hardship and counsel for the ICL contended that in circumstances where the Legal Aid Commission has not thus far accepted the application, it can be assumed the mother does have the financial capacity to make a contribution to the ICL’s costs. Counsel for the ICL also highlighted that the costs being sought by the ICL were by no means excessive.

29. I accept the submission of the ICL that the decision of the Legal Aid Commission to not grant the mother’s application for a waiver on the basis of financial hardship should be given some weight and does indicate that the mother has some financial capacity to contribute to the ICL’s costs. I also find the sum being sought by the ICL to be very reasonable in the context of these proceedings.

30. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. The relevant matters will be considered and balanced below, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.

31. The financial position of the mother has been dealt with earlier in these Reasons. I do not consider that the mother would suffer financial hardship if an order was made that she contribute to the ICL’s costs in the sum of $2,887.90. In any event, even if the mother has limited financial resources financial impecuniosity is no bar to the making of an order for costs.[2]   

    [2] D & D (Costs) (No. 2) (2010) FLC 93-435.

32. The mother has not been in receipt of Legal Aid.

33. In written submissions for the mother it was relevantly highlighted that final parenting orders made in the proceedings were consistent with final orders sought by the mother in her Initiating Application filed in August 2018. Although the final orders made in the proceedings in respect of parental responsibility and the child’s time with the father were consistent with those orders sought by the mother, it cannot be said that the mother was wholly successful in the parenting proceedings as the totality of the orders made do not completely reflect her position as at the commencement of the final hearing. The final orders made in the proceedings include additional orders which were not sought by the mother at any time, including an order which facilitates the child spending time with her half-sister.

34. Balancing the relevant matters that I have set out, I am satisfied that it is appropriate for both parties to contribute to the costs of the ICL in equal proportions. The father has already consented to an order that he be required to do so. In circumstances where I find that such an order would not cause the mother to suffer financial hardship I am satisfied that an order that the mother be also required to pay her share of the ICL’s costs is justified.

35. Accordingly an order is made that the mother contribute to the costs of the ICL in the sum of $2887.90

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       9 July 2021