Brythe and Anor and Balston and Anor

[2007] FamCA 990

FAMILY COURT OF AUSTRALIA

BRYTHE AND ANOR & BALSTON AND ANOR [2007] FamCA 990

FAMILY LAW – CHILDREN – Application for costs of court expert

Family Law Rules 2004  Pt 15.5 r 15.57

APPLICANTS: MRS BRYTHE
MR BRYTHE

FIRST RESPONDENT: MS BALSTON

SECOND RESPONDENT: MR BALSTON

FILE NUMBER: (P)NCC 580 of 2007

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE:

30 August 2007

In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Not applicable

SOLICITOR FOR THE FIRST RESPONDENT: Not applicable

SOLICITOR FOR THE SECOND RESPONDENT: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

Orders

1. That in the first instance, the mother shall pay one-half of the costs of the single expert appointed pursuant to order 9 made 7 August 2007.

2. Within 21 days from the date of these orders, the father and the mother shall each deposit an amount into the trust account of the Independent Children’s Lawyer to be applied by him to the payment of the costs of the single expert.

3. The Independent Children’s Lawyer shall notify the father and the mother within 7 days of the total costs of the expert’s report and the amount which each of them is required to deposit.

4. In the event that there remain monies available subsequent to the payment of the single expert’s costs, the remaining monies are to be returned in equal shares to the father and the mother.

5. That the mother and father has liberty to apply at the final hearing for further orders, including reimbursement of the monies she has paid towards the costs of the single expert.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Ryan delivered this day will for all publication and reporting purposes be referred to as Brythe and Anor & Balston and Anor. 

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC580 of 2007

MRS BRYTHE & MR BRYTHE

Applicants

And

MS BALSTON

First Respondent

And

MR BALSTON

Second Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings concerning a four year old girl.  Presently, the child is living with her maternal grandparents and spends time with each of her parents.  The child’s father is content with the existing arrangements.  The child’s mother wants her daughter returned to her fulltime care.

2. Because of the serious issues the parties raise, on 7 August 2007 I made orders for the appointment of a single expert.  The father agrees to pay half the costs of the single expert.  The mother declined.  Because the Court had relatively limited information concerning the mother’s financial circumstances, I directed that she files and serves a financial statement by 21 August 2007.  After that date, I would determine in chambers whether the mother should pay one-half of the cost of the expert’s report.  The mother has not filed a financial statement and the issue is determined upon the basis of the evidence taken on 7 August 2007.

3. The mother says that she is working fulltime.  While the precise nature of her employment is unclear, the mother says that she works in a marketing capacity.  She has a driver and car provided and has an assistant.  The mother earns about $870 per week.  She does not pay child support and says she could not quantify an appropriate level of child support without first discussing this with her financial adviser.  Concerning her expenses, the mother lives in a two bedroom apartment she rents at P.  She shares this apartment with her personal assistant. 

4. Part 15.5 r 15.57 of the Family Law Rules 2004 provides that unless the court orders otherwise, the parties are equally liable to pay a single expert witnesses’ reasonable fees and expenses incurred in preparing a report. 

5. To a considerable extent, the matters upon which the court expert is asked to investigate and express an opinion, relate to the mother.  Although it may not be financially easy for her to contribute, the father’s financial circumstances are not such that I consider it appropriate that he meets the entire costs of the expert’s report.

6. I have previously considered whether the applicant grandparents should contribute.  However, they support the child without any financial contribution from the child’s mother and only recently has the father commenced paying irregular and apparently modest child support.  In these circumstances I am satisfied that the father and mother should equally share the costs of the single expert’s report.  I will reserve to both parents the opportunity to make further application concerning adjustment at trial of the costs incurred in relation to the single expert.

7. So as to ensure the Independent Children’s Lawyer does not find himself in the difficult situation of retaining the single expert without available funds, the parties will be ordered to pay funds before the single expert is retained.  Those funds shall be held by the Independent Children’s Lawyer and paid to the single expert upon receipt of the report and memorandum of fees.

8. For these reasons I make the orders at the beginning of this judgment.

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

Associate: 

Date:  30 August 2007