Bligh and Bligh

[2009] FamCA 1170

FAMILY COURT OF AUSTRALIA

BLIGH & BLIGH [2009] FamCA 1170

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Bligh

RESPONDENT: Ms Bligh

INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

FILE NUMBER: MLC 3569 of 2008

DATE DELIVERED: 25 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Brand Partners

COUNSEL FOR THE RESPONDENT: Ms Williams

SOLICITOR FOR THE RESPONDENT: Peasons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Macgregor Solicitors

Orders

1. That failing agreement as to costs within 28 days, the costs of the independent children’s lawyer of and incidental to these proceedings be assessed as between parties, pursuant to the provisions of Chapter 19 of the Family Law Rules 2004, and, when so assessed, be paid in equal proportions by the husband and the wife.

2. That, notwithstanding paragraph (1) hereof:

   (a)       The wife pay the costs referred to in paragraph (1) in respect of 16 June      2009 and 2 July 2009;  and

   (b)       The husband pay those costs in respect of 8 October 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3569 of 2008

MR BLIGH

Applicant

And

MS BLIGH

Respondent

REASONS FOR JUDGMENT

1. On the morning of the eighth day of this trial the parties have presented minutes of proposed orders by consent and I have just pronounced those orders.  They settle long-running, highly-contentious and aggressively conducted, not by counsel but by the parties, litigation over the children of the parties aged nearly 15 and 12.  Prior to making the orders by consent I made certain comments for the benefit of a future Court which may consider issues arising from these consent orders, which in my view is a very possible scenario.  Having taken that course, counsel for the Independent Children’s Lawyer now seeks legal costs of and related to her involvement in these proceedings. 

2. In considering questions of costs I must have regard to the various matters in section 117 of the Family Law Act 1975.  The default provision is that in proceedings under the Act, which these are, each party to the proceedings:

   “shall bear his or her own costs.”

   However, subsection (2) empowers me to:

   “make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”

3. In considering whether it is just to make an order for costs I must have regard to the various matters in subsection (2)A of the section to which I turn.  I am first required to consider the financial circumstances of each of the parties to the proceedings.  The husband practices a profession in Melbourne.  While there was no specific evidence, the whole context of the evidence suggests that he is successful in his profession and that financial rewards are being had accordingly.  By way of illustration, rather than pay child support he is paying private school fees, which on the last evidence involved $35,000 per annum, and that was after one or both of the children had received partial scholarships.  The wife has not been in paid employment outside the home for at least 10 years.  She has remarried.  She has a 7-year-old child by her marriage and does not earn income.  She is totally financially dependent on her husband who, again, on the basis of the whole of the evidence, would appear to be a successful business person in the area of information technology.

4. The wife has until, I think, reasonably recently been the owner of a residential property and a joint owner with her husband of another property.  The evidence has persuaded me that she has transferred her interests in both properties to her husband.  She did not obtain legal advice and was unable to tell me why she did it.  During the trial her counsel and instructing solicitor sought to withdraw on the basis that appropriate financial arrangements had not been made.  I refused that application at the end of day 5 and permitted it to be raised at the beginning of day 6 on the basis of the wife’s evidence that it involved, what she referred to as, a cash flow problem, which presumably, by virtue of the issue not having been again raised, was cured between Friday and Monday.

5. All of the evidence suggests that the wife lives at least a comfortable lifestyle.  The children go to private schools, the fees of which are in the very high range, and their not attending their private schools has never been an issue before me.  However, there was a very significant issue as to which of the private schools should be attended.  So there’s been an assumption throughout that the husband would continue to pay the fees, although there’s some qualification on that in the minutes.  Neither party is in receipt of assistance by way of legal aid, and no issue is made with regard to the parties’ conduct as described in paragraph (c). 

6. While on one view it may be argued that the proceedings were necessitated by the failure of one or both parties to comply with previous orders of the court, the issues which needed to be tried were of such moment, particularly arising out of the antipathy between the parties, that I cannot find that that is a relevant factor.  Neither party has been wholly unsuccessful in the proceedings and effectively no offer in writing has been submitted to be relevant. 

7. The role of the Independent Children’s Lawyer in this matter has been of fundamental importance.  Without that role the Court would not have been able to appropriately examine the issues to enable it to decide the best interests of the subject children.  This has been one of the those cases in which the trial could not have been conducted by me without the benefit of an Independent Children’s Lawyer, and the parties owe the Independent Children’s Lawyer and her counsel, both extremely experienced in this field, a debt for the role that they have played. 

8. The lack of present financial wherewithal by the wife, in my view, is not decisive of this issue.  There is clearly on both sides a good, if not high, standard of living and the children are enjoying all sorts of benefits which only a small minority of children have the good fortune to enjoy.  Given the important role of the Independent Children’s Lawyer and the underlying financial situation of both parties, subject to a couple of qualifications, it is appropriate that the entirety of the Independent Children’s Lawyer’s costs of and incidental to these proceedings be taxed as between parties, and when so taxed be paid equally by the husband and the wife.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  3 December 2009