BERNE & HUME

In *Berne & Hume*, heard before Cleary J, the dispute concerned the costs of an Independent Children’s Lawyer (ICL) and costs between the parties in family law proceedings. The applicant sought orders regarding a child, and the respondents also sought costs. The proceedings had a history of lengthy litigation in the United Kingdom concerning the child, and the applicant had been unable to enforce those orders in Australia.

The court was required to determine whether to make an order for costs against either party in favour of the ICL, and whether to make an order for costs between the parties. Specifically, the court had to consider the capacity of both parties to contribute to the ICL’s costs, given neither party had Legal Aid. Furthermore, the court had to assess whether it would be just to order costs between the parties, given the complex history and the fact that neither party had been entirely successful in the Australian proceedings.

Cleary J reasoned that as both parties had the capacity to contribute to the ICL’s costs and neither party was entirely unsuccessful, an equal contribution towards the ICL’s costs was appropriate. The court ordered the applicant to pay $2,205.00 and the respondents jointly to pay $2,205.00 to the NSW Legal Aid Commission for the ICL’s costs. Regarding costs between the parties, the court found that due to the inability to hear and determine the matter and the unsuccessful enforcement of prior UK orders, it would be unjust to make a costs order. Consequently, the oral application for costs made by the respondents was dismissed.