Berney and Berney

[2012] FamCA 615

FAMILY COURT OF AUSTRALIA

BERNEY & BERNEY [2012] FamCA 615

FAMILY LAW  – COSTS – Orders that the father pay half of the costs for the family report and the attendance of the report writer for cross examination

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Berney

RESPONDENT: Mr Berney

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales, Sydney Central Family Law

FILE NUMBER: SYC 2998 of 2007

DATE DELIVERED: 13 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE RESPONDENT: Sydney Criminal and Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Harland

Orders

IT IS ORDERED

1. That within 3 months of the date hereof the father pay to the mother the sum of $3300.00.

2. That upon receipt of Dr R’s invoice for the costs of her attendance for cross-examination the father within one month pay one half of the amount of the invoice to Dr R and the mother pay the balance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berney & Berney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2998 of 2007

Ms Berney

Applicant

And

Mr Berney

Respondent

REASONS FOR JUDGMENT

1. An application is made by the mother for an order that the father contribute to the costs of the expert in these proceedings. The mother has paid $6,600 for the preparation of Dr R’s report, and seeks an order that the father reimburse her for half of that sum, being $3,300. In addition, Dr R will charge fees for her attendance for cross-examination, that amount being as yet unknown. The application falls to be determined pursuant to the provisions of section 117(2A) of the Family Law Act 1975 (Cth).

2. Considering firstly the financial circumstances of each of the parties to the proceedings, I take into account that both the mother and her partner are in employment; however, the mother has paid legal fees in excess of $50,000 to date, she being privately represented in these proceedings, and in addition, the mother has paid $6,600 to Dr R and $1,650 to the Legal Aid Commission.  The father gave evidence that he is in receipt of a Centrelink pension, and that he also receives $2000 a month for the rent of his unit.

3. Tendered in the proceedings before me was a loan agreement entered into by the father with his parents dated 30 July 2009 acknowledging a loan of $300,000.  There is no term of the loan which specifies a date for repayment, and there is no evidence before me that any call has been made by the lenders for repayment of the loan.  The father gave evidence that the value of his property is $575,000, which is identical with the purchase price in 2009, and that the amount outstanding in relation to the first mortgage is $270,000.  It is the father’s evidence that he receives $2,000 a month by way of rent, and he is unable to tell the Court what he pays on the mortgage, which is an interest-only mortgage.

4. In relation to subsection (b), it is not in dispute that the father is in receipt of legal aid.  I do not know whether the father has made any application to the Legal Aid Commission for funding for Dr R’s report, but I must assume  that application was open to him.

5. In relation to the conduct of the proceedings, there is nothing in the manner in which the matter was conducted that would attract an order for costs. 

6. Neither party was wholly unsuccessful.

7. In circumstances where the mother has borne the cost of private representation and has herself paid $6,600 to Dr R and a contribution towards Legal Aid, in my view, it is appropriate that the father should bear some portion of the costs of Dr R.  I propose to order that the father should reimburse the mother within three months of this date for the sum of $3,300, being half of the amount paid by her to Dr R, and the father should be responsible for one half of Dr R’s fees for attendance for cross-examination.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 July 2012.

Associate: 

Date:  1 August 2012