Burnham & Mullane
[2021] FedCFamC1F 229
•29 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Burnham & Mullane [2021] FedCFamC1F 229
| File number(s): | SYC 4673 of 2012 |
| Judgment of: | HENDERSON J |
| Date of judgment: | 29 November 2021 |
| Catchwords: | FAMILY LAW – COSTS – order for costs sought by the independent children’s lawyer – No circumstances justifying order under section 117(2) of the Act – application dismissed |
| Legislation: | Family Law Act 1975 (Cth) s117(2) |
| Cases cited: | Penfold v Penfold (1980) 144 CLR 311 |
| Division: | Division 1 First Instance |
| Number of paragraphs: | 15 |
| Date of hearing: | 9 July 2021 |
| Place: | Sydney |
| Counsel for the Applicant: | Mr Jackson |
| Solicitor for the Applicant: | Holmes Donnelly & Co Solicitors |
| Counsel for the Respondent: | Ms Conte-Mills |
| Solicitor for the Respondent: | Fay Rose Legal |
| Counsel for the Intervener: | Mr Ladopoulos |
| Solicitor for the Intervener: | Legal Aid NSW Bankstown Family Law |
ORDERS
| SYC 4673 of 2012 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) | ||
| BETWEEN: | MS BURNHAM Applicant | |
| AND: | MR MULLANE Respondent | |
| INDEPENDENT CHILDREN'S LAWYER Intervener | ||
ORDER MADE BY: | HENDERSON J |
DATE OF ORDER: | 29 NOVEMBER 2021 |
THE COURT ORDERS THAT:
The Application for costs filed on behalf of the Independent Children’s Lawyer is dismissed and the proceedings are removed from the List of Matters awaiting finalisation.
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 Burnham & Mullane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application for costs by the Independent Children’s Lawyer, ICL, for their costs in a matter that largely resolved by consent, thus saving the Court considerable time in hearing the matter and in having judgement delivered.
The Court was required to determine the limited issue of the length of time the child spent with his father for the holidays and father’s day.
I delivered judgement on 9 July 2021 on these issues.
It is correct that in family law proceedings each party bears their own costs, however the Court retains a discretion to order costs be paid by one party pursuant to section 117(2) of the Family Law Act 1975 (Cth) (“the Act”).
The ICL has a statutory duty to seek an order for costs given public funds are expended in the representation of a child and this is particularly appropriate where parties may have significant wealth or assets or have behaved inappropriately in resisting reasonable settlement proposals, or simply abandoning their application or response when the evidence did not go their way.
These are not the facts in this matter. The father was legally aided as he does not work or his income is so low that he fulfilled the stringent criteria to obtain legal aid.
Despite his somewhat superior view of himself and as a superior parent to the mother, shared by his wife, this was not supported on the evidence and the evidence was to the contrary. Thus, the mother had grounds for her resistance to equal time immediately for the child in all school holidays
The mother works and solely financially supports the child and pays taxes which contribute to this important legal aid funding. The father does not.
As the father was legally aided he does not have to pay the ICL costs, yet the mother who is the only parent to properly financially support the child is not so fortunate.
The ICL seeks their costs against the mother of $6,196 and I accept the mother has a capacity to pay this sum although this payment may have a negative impact on her capacity to fund the child’s needs for a time
The Law
Section 117 of the Act deals with costs applications.
The relevant matters under section 117 are as follows:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
I must first determine whether I would exercise my discretion to make an order for costs pursuant to section 117(2) of the Act. If I determine that I should exercise that discretion, I must then determine the costs to be paid.
The power to award costs involves a wide exercise of discretion and the breath of that discretion is not limited as was recognised in a matter of Penfold v Penfold (1980) 144 CLR 311 (“Penfold”). The Court need not be satisfied that all the factors under section 117(2A) of the Act have occurred before making a costs order, rather the Court is required to find a justifying circumstance or circumstances as an essential preliminary step before making any costs Order.
I do not see a justifying circumstance in this matter that would impel me to exercise my discretion to order the mother to pay half the ICLs’ costs given the facts I have outlined above and I dismiss the application for costs.
| I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. |
Associate:
Dated: 29 November 2021
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