Banks and Smythe

[2020] FamCA 296

FAMILY COURT OF AUSTRALIA

BANKS & SMYTHE [2020] FamCA 296

FAMILY LAW – COSTS – Application for costs order by the Independent Children’s Lawyer – Where the father narrowed the issues in dispute which halved the proceedings – Where the father has capacity to meet some, but not all of the amount sought by the Independent Children’s Lawyer – Ordered the father pay one third of the half share sought from him.

Family Law Act 1975 (Cth), s 117

APPLICANT: Mr Banks

RESPONDENT: Ms Smythe

INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

FILE NUMBER: NCC 1359 of 2013

DATE DELIVERED: 29 April 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: In chambers

JUDGMENT OF: Cleary J

HEARING DATE: 5 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Ramsland Laidler Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

Orders

1. That the father pay to the Legal Aid Commission the sum of $1,244.00 with six months allowed to pay that amount.

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 Banks & Smythe 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 NEWCASTLE

FILE NUMBER: NCC 1359 of 2013

Mr Banks

Applicant

And

Ms Smythe

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was determined by the Court on 5 November 2019.

2. A costs application was made by the Independent Children’s Lawyer (“ICL”) on behalf of the Legal Aid Commission (copy annexed to Order).

3. The sum sought from the father was $3,732.90 being a one half share of total costs.  The father expressed the mistaken view[1] that his half share was $1,866.45.  It was not.

   [1] Affidavit of Mr Banks filed 5/12/2019, para 25.

4. The Court made an order that the father file relevant financial information within 28 days.

5. The father filed an affidavit on 5 December 2019 which was slightly out of time, but accepted by the Court.

6. The father was legally represented at trial by counsel provided through Legal Aid under the Family Violence Cross-Examination Scheme.

The Law

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) states:

   (1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

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

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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 answer 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.

   Costs of Independent Children's Lawyer

   (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.

2. The ICL is required to seek contribution from parties.

3. The father put forward at trial a proposal which narrowed the issues in dispute.  The trial was completed in one of the two days allocated.

4. I take that matter into account.

5. Financially, the father was earning $1,546 net per week.

6. He was paying child support of $828.50 per month which by now would have increased to $1,065 per month.[2]

   [2] Affidavit of Mr Banks filed 5/12/2019, para 6.

7. He was paying rent for himself and the two older late teenage children of the parties’ relationship of $610 per week.

8. Accordingly, he had about $670 to meet all other household expenses.

9. It is the case that the father was unrepresented before he became the beneficiary of a grant of Legal Aid (s 102NA cross-examination restrictions).

Conclusion

1. The father has some capacity to contribute to the costs of the ICL [total $7,465.80] but I accept that the full half share would cause hardship.

2. Accordingly there will be an order for the father to pay one third of the half share sought from him.  That is $1,244.00.

3. An order is made accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary made in chambers on 29 April 2020.

Associate: 

Date:  29 April 2020