Bernard and Bernard (Costs)

[2009] FamCA 1259

FAMILY COURT OF AUSTRALIA

BERNARD & BERNARD (COSTS) [2009] FamCA 1259

FAMILY LAW – COSTS – Oral application for costs made by the Independent Children’s Lawyer – Application for costs is dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Bernard

RESPONDENT: Mr Bernard

INDEPENDENT CHILDREN’S LAWYER: Ms Wooi

FILE NUMBER: NCC 2769 of 2008

DATE DELIVERED: 10 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 9 & 10 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Powe, as agent for Halletts Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wooi, Krstina Wooi Lawyer

Orders

1.The Court entertains the oral application for costs made by the Independent Children’s Lawyer.

2.The application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bernard & Bernard (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2769  of 2008

MS BERNARD

Applicant

And

MR BERNARD

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.These proceedings concern parenting orders that relate to five children born to the relationship between the applicant mother and the respondent father.

2.The proceedings have been on foot for quite some time.  The final hearing commenced on Wednesday, 9 December 2009, and concluded today, Thursday, 10 December 2009.  I have already indicated to the parties and the Independent Children’s Lawyer that I will reserve my decision in the matter.

3.As is customary, the Independent Children’s Lawyer has made an Application for Costs as against both parties.  I am informed by learned counsel appearing for the Independent Children’s Lawyer that although the mother has paid her initial contribution of $1,500.00 towards the Independent Children’s Lawyer, the father has not.  The father does not seem to dispute that proposition.

4.As a consequence of the payment made already by the mother, the Independent Children’s Lawyer seeks a Costs Order against her quantified at $1,657.00.  Because of the father’s failure to pay his initial contribution of $1,500.00, the Independent Children’s Lawyer seeks costs against the father quantified at $3,157.00.

5.The solicitor appearing for the mother submits from the bar table that the mother is not the recipient of a grant of legal aid.  However, her sole form of income is social security paid to her by Centrelink together with some small amounts of child support that she receives from the father via the Child Support Agency.  The Independent Children’s Lawyer does not take issue with the accuracy of those submissions.

6.For the father’s part, he has been unrepresented in these proceedings for quite some time.  He is clearly not in receipt of a grant of legal aid.  He has obviously seen fit not to allocate any of his resources to the payment of legal representation.  The father submits from the bar table that he earns on average $500.00 net per week.  He owns his own unencumbered parcel of real estate but he is indebted to the Australia Taxation Office for an amount estimated in the vicinity of $30,000.00.  The Independent Children’s Lawyer does not seek to challenge those assertions by the father.

7.Although the father’s financial position seems to be superior to that of the mother, I am cognizant that these proceedings have been resolved well inside the three day estimate allocated to the hearing.  The hearing will have been concluded within approximately one and a half days.

8.One of the reasons that the hearing has been concluded in such shortened time is the manner in which the father has conducted his case.  He has not sought to prolong the litigation by protracted cross-examination of witnesses on issues of limited relevance.  For that he ought be accorded some credit.

9.I also take heed of the fact that the proceedings have not been necessitated by a failure of the father to comply with previous orders of the Court.  The father has tactically conducted the litigation on a basis which recognises the futility of an application being maintained by him for an order that the children live with him.  At the commencement of the trial, the father indicated his abandonment of any order to that effect conceding that the orders, so far as he was concerned, ought be confined to consideration of the amount of time the children were to spend with him and the circumstances under which that should occur.

10.The application made by the Independent Children’s Lawyer for costs against the mother is dismissed.  I am satisfied that the mother would suffer financial hardship if she was called upon to bear any further costs of the Independent Children’s Lawyer.  In those circumstances s 117(4)(b) of the Act requires dismissal of the application.

11.The situation of the father is somewhat different.  His financial circumstances may well permit his contribution towards the legal costs of the Independent Children’s Lawyer.  However, by reason of the other factors to which I have adverted, on balance I am not persuaded to invert the ordinary rule which applies under s 117(1) of the Act providing that each party to the proceedings bears his or her own costs.  For that reason, the Application for Costs made as against the father is also dismissed.

12.For those reasons I make the following orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  10 December 2009