CELAN & CELAN

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.