Bowen & Bowen (No 3)
[2022] FedCFamC1F 819
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bowen & Bowen (No 3) [2022] FedCFamC1F 819
File number(s): WOC 1194 of 2019 Judgment of: CHRISTIE J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – COSTS APPLICATION – Where final parenting orders were made – Where the independent children’s lawyer sought costs to be paid equally between the parties – Where the mother opposes the making of a costs order against her. Legislation: Family Law Act 1975 (Cth), s 117 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 25 - 26 August 2022 Place: Sydney Counsel for the Applicant: Mr Harper Solicitor for the Applicant: Meehans Solicitors Counsel for the Respondent: Mr Wong Solicitor for the Respondent: Hansons Lawyers Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers ORDERS
WOC 1194 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOWEN
Applicant
AND: MR BOWEN
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
28 OctobeR 2022
THE COURT ORDERS THAT:
1.The applicant pay the costs of the Independent Children’s Lawyer (unless waived) in the sum of $4,594 within 14 days of receipt of funds by way of property adjustment in proceedings in this Court.
2.The respondent pay the costs of the Independent Children’s Lawyer in the sum of $4,594 within 14 days.
3.The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Bowen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
At the conclusion of the parenting aspect of the matter the Independent Children’s Lawyer (“the ICL”) made an application for her costs. Mr Bowen (“the father”) for his part indicated that he consented to the costs order as sought against him.
Ms Bowen (“the mother”) resisted the making of a costs order against her citing the father’s arrears in child support and her employment as a teacher on a modest salary.
the law
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs the making of orders for costs. Section 117(3) of the Act provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
The matters to be taken into account in the making of a costs order, including a costs order in favour of the ICL, are those set out in subsection 2A of s 117 of the Act.
The mother, in resisting the order for costs, appears to tacitly rely on s 117(4) of the Act. That section provides that:
…in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
consideration
The mother has the care of the parties’ three children aged 13, 12 and nine. The final orders for their care have them live with their mother and spend time with their father. While the mother is currently in receipt of child support there are arrears. The mother does not have any assets in her name and her expenses are close to exhausting her income each week.
I find that if I ordered the mother to pay the costs as sought at this time it would cause hardship. The mother has applied for orders for property adjustment. It may be that as a consequence of those orders she receives an amount of money by way of property adjustment – that will be the subject of the proceedings which are listed for final determination.
Conclusion
Doing the best I can, the order I will make is that the mother will be responsible for one half of the costs of the ICL in the sum of $4,594. If the mother obtains a waiver of the ICL’s costs then she will not be required to pay the costs. In the event that she does not receive a waiver then she will be required to pay those costs within 14 days of receiving any sum by way of property adjustment.
The order for the husband to pay half, being an order to which the husband consented, will be made.
Following the making of these orders the ICL will be discharged.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 28 October 2022
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