BERNE & HUME

[2017] FamCA 53

FAMILY COURT OF AUSTRALIA

BERNE & HUME [2017] FamCA 53

FAMILY LAW – COSTS – Child representative – Where both parties have the capacity to contribute towards costs – Where neither party has the benefit of a grant from Legal Aid – Where the Applicant was not entirely unsuccessful – Ordered the parties make equal contribution to the costs of the Independent Children’s Lawyer

FAMILY LAW – COSTS – Between parties – Where there has been lengthy litigation in the United Kingdom relating to the subject child – Where the Applicant was unable to enforce the Orders made in the United Kingdom in this jurisdiction – Where the Court was unable to hear and determine the matter – Where neither party has been entirely unsuccessful – Decided it would be unjust to make a costs order – Ordered the application is dismissed

Family Law Act 1975 (Cth), s 117

APPLICANT: Mr Berne

RESPONDENTS:	Mr and Ms Hume
INDEPENDENT CHILDREN’S LAWYER:	Foat Roberts Lawyers

FILE NUMBER: (P)NCC 3053 of 2013

DATE DELIVERED: 9 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Leckie Law

SOLICITOR FOR THE RESPONDENTS: Coffs Coast Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

1. The Applicant pay the sum of $2,205.00 to the NSW Legal Aid Commission for costs of representation by the Independent Children’s Lawyer within six months of the date of these orders.

2. The Respondents together pay the sum of $2,205.00 to the NSW Legal Aid Commission for costs of representation by the Independent Children’s Lawyer within six months of the date of these orders.

3. The oral application of the Respondents made on 22 December 2015 for costs is dismissed.

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 Berne & Hume 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: (P)NCC3053/2013

Mr Berne

Applicant

And

Mr and Ms Hume

Respondents

REASONS FOR JUDGMENT

Introduction

1. These are applications for costs arising from the dismissal of a parenting application first filed in the Federal Circuit Court at Newcastle on 3 December 2013 and subsequently transferred to the Brisbane and later the Newcastle Registry of this Court.

2. There is an application for costs by the Respondents against the Applicant.

3. There is an application by the Independent Children’s Lawyer (“ICL”) for her costs to be contributed to by each of the other parties.

Brief History of Relevant Facts

1. The Respondent parents are Ms and Mr Hume, the mother and psychological father of the subject child B, now aged 10 years.

2. The Applicant is Mr Berne, the biological father of the subject child.

3. On 11 May 2015 the parenting application was set down for three days hearing in this Court commencing Wednesday 28 October 2015.

4. On 7 October  2015 the ICL  applied to relist the proceedings on the basis that she had been provided with a medical report by the Applicant which gave rise to the inference that the Applicant would be unwell and unable to attend the hearing.

5. On 12 October 2015 the matter was listed before me.

6. On that day an application for adjournment was made on behalf of the Applicant father and that application was adjourned to 14 October 2015.

7. The medical report provided to the ICL became part of Exhibit 1.

8. On the adjourned day the Applicant was granted leave to file and serve an affidavit in relation to medical evidence.  He was represented at Court by a solicitor but has at all times remained outside Australia.

9. On 27 October 2015 the matter came back before the Court.  On that day the application to adjourn was dismissed.  Leave was granted for the Applicant to give evidence in the final hearing from the United Kingdom.  Video link facilities were identified as available through barristers’ chambers.

10. The Applicant wished to take up the opportunity raised by the Court to use software to connect with the Court from his home computer.

11. The Respondent raised concerns and opposition to that course but the issue was overtaken by subsequent events.

12. Early in the morning of 27 October 2015 the Court was advised that the Applicant “was rushed to hospital yesterday after collapsing with a pulmonary embolism” and would be in hospital for at least a week.

13. A second application for adjournment of the trial was made based on that evidence.

14. At 9.45 am and again at 4.00 pm on 27 October 2015 [the day before the trial] the matter was relisted.  Orders and directions were made including vacation of the hearing dates, an order for provision of medical evidence and a further date for directions.

15. On 22 December 2015 the material produced on behalf of the Applicant was considered and deemed to be inadequate justification for delaying the trial.

16. The Initiating Application filed 3 December 2013 was dismissed with ex tempore reasons given. 

17. Leave was granted to the Respondents and the ICL to file and serve material in support of Costs Applications and for relevant Responses by the Applicant. 

18. All such material was filed in a timely way.

The Application Of The Independent Children’s Lawyer

1. On behalf of the ICL it was submitted that each party had the capacity to and should contribute to her costs in the total sum of $4410.

2. This is a matter where there had been considerable involvement by the ICL since the order for appointment was made on 10 February 2014.

3. Previously (on 22 August 2014) when certain interim applications were dismissed it was ordered there be no order as to costs.

4. The costs now sought were for the defined period 22 August 2014 to date of submissions.

Financial Circumstances

1. It is apparent from the submission of each party that they have the capacity to contribute to the costs of the ICL.

2. The Applicant submits that he, at 61, is unlikely to find further paid employment but appears to have assets.

3. The Respondents are both supported by Mr Hume who also supports the subject child but he has a reasonable level of income.

4. Neither of the parties had a grant of Legal Aid.

Conduct OF The Parties

1. This was a complex situation where orders generally favourable to the Applicant had been made in the UK. Those orders were unable to be enforced in Australia, and a fresh application subsequently made by the Applicant, the biological father.

2. The Applicant had his application dismissed as a result of non-attendance, the insufficiency of the medical evidence to justify his stated inability to attend or participate in the proceedings. Further, he was unable to give any indication of when he would be likely to attend a final hearing to prosecute his application.

3. I reject the submission of the Respondents that the Applicant should be responsible for the whole of the costs of the ICL.  His application was dismissed on the basis stated above.  He was not wholly unsuccessful in substantive proceedings and had apparently made offers in terms of time he could spend with the subject child prior to the dates of final hearing which were ultimately vacated.

4. I consider that there should be a contribution by each of the parties and in the equal shares proposed by the ICL.

5. Orders are made accordingly.

The Application For Costs By The Respondents Against The Applicant

1. There has been lengthy litigation in the United Kingdom about the subject child.

2. The Respondents have always resisted the Applicant being involved in the life of the subject child to any extent.  They have also resisted telling the child the truth of her biological identity.

3. The Applicant pursued his case to have a relationship with his biological daughter in the United Kingdom and was unable to enforce the resulting orders in this jurisdiction.  Those proceedings could have been revived in the UK but the Respondents have chosen to make Australia their permanent home.

4. It cannot be said that either of the parties has been entirely unsuccessful.  Each of the parties submits that they have expended significant sums of money on the United Kingdom legislation and I have no reason not to accept that they did.

5. The outcome of the application was unsatisfactory in that the Court was unable to hear and determine the matter.  That is a favourable outcome to the Respondents who have, as stated, always opposed any parenting orders being made in respect of the subject child.

6. The Applicant failed to attend for the final hearing however he had travelled to Australia in November 2014 in order to be interviewed and observed with the subject child which observation did not happen.  The Applicant is 61 and asserts that he has serious ill health.  That may be the case but evidence of it was inadequate.

7. In my view it would be unjust to make an order for costs in the circumstances and I decline to do so.

8. These reasons should be read in conjunction with the ex tempore Reasons for Judgment of 22 December 2015.

9. An Order is made accordingly.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 February 2017.

Associate: 

Date:  8 February 2017