Carlyle and Tenn
[2012] FMCAfam 801
•6 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARLYLE & TENN | [2012] FMCAfam 801 |
| FAMILY LAW – Costs of Independent Children’s Lawyer. |
| Family Law Act 1975, ss.68LA, 117(2), 117(2A), 117(2A)(b), 117(2A)(d), 117(2A)(e), 117(2A)(f), 117(2A)(g), 117(3) |
| Applicant: | MR CARLYLE |
| Respondent: | MR TENN |
| File Number: | SYC 2454 of 2008 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 31 July 2012 & 1 August 2012 |
| Date of Last Submission: | 1 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Counsel for the Respondent: | Mr Thomas |
ORDERS
That the parties pay the costs of the Independent Children’s Lawyer in the sum of $4,748 with each party responsible for 50% of such costs.
The parties to have ninety (90) days to pay.
The Independent Children’s Lawyer’s appointment is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Carlyle & Tenn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2454 of 2008
| MR CARLYLE |
Applicant
And
| MR TENN |
Respondent
REASONS FOR JUDGMENT
This matter was listed before me for hearing and proceeded over a period of two days. At the end of the second day the matter was resolved between the parties and I made Orders by consent accordingly.
After I had made the Orders by consent Ms Karagiannis made an application for an Order that the parties in this case the mother and father of the children pay the costs of the Independent Children’s Lawyer. This was opposed by counsel for the Applicant who put a number of propositions to me, in the main relating to the capacity of the parties to pay especially in light of likely significant on-going treatment costs for one of the children. These submissions were subsequently adopted by Mr Thomas on behalf of the respondent. I chose to reserve my decision in relation to the matter of costs for the Independent Children’s Lawyer so that I could consider the evidence before me particularly in relation to likely on-going treatment costs and the financial circumstances of the parties.
I note that the Independent Children’s Lawyer clearly played a constructive role in resolving the matter before the Court however this is not enough of itself to justify a costs order against the parties in favour of the Independent Children’s Lawyer even when the parties clearly have the capacity to pay.
The relevant sections of the Act which I will not set out in detail are s.68LA which deals with the role of the Independent Children’s Lawyer and s.117 which deals with costs. As required by s.117(3) of the Act I will now look at the factors in s.117(2A) in considering the question of costs. I note that s.117(2) of the Act gives the Court discretion in relation to the making of an Order.
Turning first to the financial circumstances of the parties there was evidence to show that both are employed in secure full-time jobs and with a stable employment history. There was evidence that the Applicant Mother earned in excess of $100,000 per annum as a [omitted] and that she received a shift loading because of the irregular hours she worked. There was no evidence as to the Respondent Father’s income. I note that the father has already made some preliminary payment in respect of the Independent Children’s Lawyer’s costs. I note also that the Respondent Father has remarried and that there is a young child of that marriage.
Other relevant evidence included the mother’s intention to take the children on a holiday trip. Also that the mother does not own a home and lives in rented accommodation shared with her parents who also assist her with the children. The father in his affidavit states that he lives in a duplex type home in [omitted] which he says is “comfortably furnished”. There was no evidence as to whether the father owns the home outright but it would appear to be part of a group of dwellings, the others of which are occupied by members of his family.
No further detailed financial information was presented on behalf of either party.
On the basis of the evidence before me I am of the opinion that, on the balance of probabilities both parties are in a position to pay the costs of the Independent Children’s Lawyer.
I note that neither of the parties received Legal Aid funding s.117(2A)(b).
Turning to the conduct of the parties in relation to the proceedings it is clear that the Court considered the appointment of the Independent Children’s Lawyer both appropriate and necessary given the very high level of conflict between the parties and the difficult issues in relation to the children. I have already stated that in my opinion the Independent Children’s Lawyer made a significant contribution to the trial and negotiations to resolve the matter.
There is no evidence that the proceedings were necessitated by the failure of a party to comply with previous Orders s.117(2A)(d).
Given that the matter was resolved by negotiation s.117(2A)(e) is not relevant similarly s.117(2A)(f).
Turning to s.117(2A)(g), such matters as the Court considers relevant Mr Levy for the Applicant Mother submitted that the parties, perhaps more particularly the mother would face significant on-going costs in relation to [X] who was currently being treated by Ms P a psychologist and is also being seen or has been seen by other therapists including play therapy and a behavioural optometrist. It appeared from the evidence that [X]’s treatment was likely to extend over many years. There were also issues in relation to [Y] but there was less evidence as to any likely course of treatment which may be required. There was no evidence before me as to the extent to which treatment costs would be covered by any form of public or private health cover.
I accept that the parties will face on-going costs for [X]’s treatment and that these costs are likely to continue well into his teenage years.
It is also relevant that the amount sought by the Independent Children’s Lawyer is $1,317.50 from the father (who has already made a contribution) and $2,967.50 from the mother. These are not insignificant sums of money but can properly be regarded as manageable particularly if there is time to pay by a party receiving a stable income especially if that income is in excess of $100,000. The parties were aware at the time the Independent Children’s Lawyer was appointed that there would be cost implications for them and did not object at that time.
Conclusion
The Court has considered the relevant provisions and the financial position of the parties especially in light of on-going treatment costs for [X]. Although, no doubt the payment of the Independent Children’s Lawyer’s costs will place an additional financial burden on the parties, this does not in my opinion mean that either of them will suffer financial hardship. Given the father has already paid some of the Independent Children’s Lawyer’s costs and both parties knew that at the beginning of these proceedings that the Independent Children’s Lawyer’s costs would be payable it is clear that these costs do not come as a surprise.
Although as stated above there are circumstances to justify an order for payment of the Independent Children’s Lawyer’s costs, having regard to the difficulties faced by [X] in particular and the need for on-going treatment over a long period. I will reduce the order for costs to $4,748 which represents 80% of the costs claimed by the Independent Children’s Lawyer. The mother is to pay 50% of the ordered costs within 90 days and the father is to pay the balance owed by him within 90 days.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Date: 6 August 2012
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