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CELAN & CELAN

CELAN & CELAN

Case [2021] FamCA 228 21 April 2021

Costs

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FAMILY COURT OF AUSTRALIA

CELAN & CELAN

[2021] FamCA 228

FAMILY LAW – COSTS – INDEPENDENT CHILDREN’S LAWYER – s 117(3), s 117(5) – review of authorities.

Family Law Act 1975 (Cth), s 117

Family Law Amendment Act 2003 (Cth)

Legal Aid Commission Act 1979 (NSW), s 36(1)(a)

Aider Shipping Co Ltd v Interbulk Ltd (The Vimeira (No 2)) [1986] AC 965
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203
Carr v Western Australia (2007) 232 CLR 138
Cassidy & Murray (1995) 19 Fam LR 492
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commonwealth v Baume (1905) 2 CLR 405
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
De Roma v De Roma (2013) 49 Fam LR 266
Fitzgerald v Fish (2005) 33 Fam LR 123
Gahen & Gahen (No 2) [2013] FamCA 936
Goodridge & Beadle (No 2) [2019] FamCA 786
Greedy & Greedy (1982) 8 Fam LR 669
Guild & Stasiuk [2020] FamCA 348
In re Gardiner; ex parte Orgill (1890) 16 VLR 641
In the Marriage of Jachimowicz (1986) 10 Fam LR 566
In the Marriage of McDonald (1994) 18 Fam LR 265
In the Marriage of Oriolo (1985) 10 Fam LR 665
In the Marriage of Tuck (1979) 7 Fam LR 492
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Knight v F.P. Special Assets Ltd (1992) 174 CLR 178
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
Northern Territory v Collins (2008) 235 CLR 619
Panwar & Panwar [2020] FamCA 480
Penfold v Penfold (1980) 144 CLR 311
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Berchet [1794] 89 ER 480
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
Separate Representative v JHE and GAW (1993) 16 Fam LR 485
Southwest Water Authority v Rumble’s [1985] AC 609
Taylor v Public Service Board (NSW) (1976) 137 CLR 208
Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590
Wentworth v Attorney-General (1984) 154 CLR 518
Yanner v Eaton (1999) 201 CLR 351
Yarmirrv Northern Territory (2001) 208 CLR 1

APPLICANT:

Mr Celan

RESPONDENT:

Ms Celan

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

SYC

3274

2017

DATE DELIVERED:

21 April 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Wilson J

HEARING DATE:

20 & 21 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M. Wong

SOLICITOR FOR THE APPLICANT:

Watts Mccray (NSW) Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms D. Lioumis

SOLICITOR FOR THE RESPONDENT:

Sexton Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M. Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

The applicant father must pay to the Legal Aid Commission of New South Wales (“Legal Aid NSW”) the costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CELAN & CELAN [2021] FamCA 228
Case: [2021] FamCA 228
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application for costs by an Independent Children's Lawyer (ICL) in a matter between Mr Celan (applicant father) and Ms Celan (respondent mother). The dispute involved parenting and property issues, with the parenting matters being resolved by consent on the first day of a scheduled four-day trial. The ICL, Mr Mark Whelan, sought payment for his costs and disbursements incurred in representing the children.

The primary legal issue before the court was the extent of the court's power to order parties to pay the costs of an ICL, particularly in light of the ICL not being a formal party to the proceedings under section 117(1) of the Family Law Act 1975 (Cth). The court was required to consider the application of section 117(2) of the Act, which grants the court discretion to make costs orders where circumstances justify it, and how this applied to an ICL's claim. Additionally, the court had to scrutinise the quantum of the ICL's claim, which initially presented several anomalies and required amendment.

Justice Wilson, applying principles from various authorities including *Penfold v Penfold*, affirmed the court's broad discretion in making costs orders under section 117(2) of the Family Law Act. The court found that an applicant for costs does not bear an onus to demonstrate a "clear case" for such an order. After reviewing an amended invoice and submissions, the court determined that the applicant father should pay the costs of the independent representation for the children.

The applicant father was ordered to pay the Legal Aid Commission of New South Wales $8,692.04 for the costs of the independent representation of the children. This payment was to be made within three calendar months of the order date, subject to any waiver or agreement with Legal Aid NSW. Any prior payments made by the applicant towards the children's representation were to be credited against this liability. The independent children's lawyer was subsequently discharged.

Orders