Charles and Hughes

[2018] FamCA 152

FAMILY COURT OF AUSTRALIA

CHARLES & HUGHES [2018] FamCA 152

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks that the father pay for one half of their costs –Where the father makes a further application that the parties jointly share the costs of the expert – Where the parties should share the costs of the expert as they were appointed by consent and jointly required for cross examination – Where the father would suffer financial hardship if required to pay the costs sought by the Independent Children’s Lawyer – Independent Children’s Lawyer’s application is dismissed.

Family Law Act 1975 (Cth) 117(1), 117(2), 117(2A), 117(4).

APPLICANT: Mr Charles

RESPONDENT: Ms Hughes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3333 of 2011

DATE DELIVERED: 15 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Down

SOLICITOR FOR THE RESPONDENT: Ms Cooke-Dolan

Orders

1. Each of the mother and the father will pay to Dr Q an amount equal to one half of the total of her professional fees and disbursements incurred in her capacity as single expert in these proceedings.

2. The application of the Independent Children’s Lawyer that the father pay an amount equal to one half of her costs is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charles & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3333  of 2011

Mr Charles

Applicant

And

Ms Hughes

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings

1. On 20 July 2017 I delivered judgment in contested parenting proceedings, after a four day trial and written submissions received in March and April 2017. On 20 July 2017 I directed the father and the mother to file and serve written submissions in relation to the costs of the Independent Children’s Lawyer (“ICL”) and the single expert, Dr Q, within seven days. Each of the parties filed these submissions on 3 August 2017.

2. By letter dated 23 February 2017 the mother was advised that the Legal Aid Commission would seek no contribution from her to pay the costs of the ICL. This same letter advised the mother that the Legal Aid Commission required her to contribute to payment of the fees of the single expert Dr Q.

3. The father has paid a sum of $5,500 to Dr Q in respect of the preparation of her report. The written submissions on behalf of the father indicated that Dr Q’s fee for her appearance at the trial is unknown but that enquiries have been made of the ICL for the total amount. The father sought an order that the mother pay half of the total costs and disbursements of Dr Q.

4. The father opposed the application of the ICL that he pay half of her costs, that being an amount of $6,522. Inter alia, the father complained of the manner in which the role of ICL had been carried out during the proceedings.  The father referred to the fact that six different solicitors had appeared for the ICL at various times and that her final submissions were filed outside the time limit prescribed by agreed directions.

Consideration

1. Applications for payment of costs are determined by reference to section 117 of the Family Law Act. Section 117(1) provides that each party will bear his or her own costs, subject to certain exceptions.

2. Section 117(2) empowers the court to make such order as to costs as it considers just, if there are circumstances which warrant the making of a costs order. The court is required to have regard to the matters set out in section 117(2A), when considering whether any order for costs should be made pursuant to section 117(2).

3. Section 117(2A) provides as follows:

   (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.”

4. Section 117(4) provides as follows:

   (4)      However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:

   (a)a party to the proceedings has received legal aid in respect of the proceedings; or

   (b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;

   the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.

5. I will now consider the matters set out in section 117(2A). I note that

   
   

   sub-sections 117(2A)(b), (c), (d), (e) and (f) are irrelevant for present purposes.  Neither party was in receipt of a grant of legal aid;  the conduct of the parties is irrelevant to the issue of the costs of the ICL and the fees of Dr Q;  neither party has failed to comply with orders and offers of settlement have no application for present purposes.

Section 117(2A)(a)

1. Each of the parties has funded their litigation privately, with the father and the mother expending $93,877 and approximately $80,000 respectively.  During the trial the mother gave evidence that her commencing salary as a teacher would be $64,000 per annum. That sum is consistent with the contents of a Financial Statement which the mother attached to her written submissions. I am unaware of the current income of the father, but he pays $634 per week by way of child support for the parties’ two daughters.

2. Both of the parties own a home, in the case of the father, as joint tenants with his current wife. There was no evidence of the value of these properties.

Section 117(2A)(e)

1. The written submissions of the mother stated incorrectly that the father was “wholly unsuccessful” in the proceedings.  The mother sought an order that she have sole parental responsibility for the child C, who was born in 2003. The Orders made on 20 July 2017 included a provision that the mother and father have equal shared parental responsibility for C.  This order was supported by the ICL.

Section 117(2A)(g)

1. As noted, the Legal Aid Commission has determined that the mother should not be required to make any contribution to the costs of the ICL.  The reasons for this determination are unknown to both the father and the Court.

2. The written submissions on behalf of the mother canvassed matters of history between the parties and regurgitated adverse comments and findings which I made in relation to the father.  It should be noted that my reasons for judgment included similar adverse comments and findings in relation to the mother.

Conclusion

The costs of the ICL

1. I will not make an order that the father pay one half, or any other proportion, of the costs of the ICL. I am satisfied that such an order would impose hardship upon the father for the purposes of section 117(4).

2. As noted, the father has expended approximately $94,000 in legal costs. I consider that an order that he pay an additional sum of $6,522 on account of the costs of the ICL would impose financial hardship upon him.

3. I accept the submission on behalf of the father, to the effect that this proposed order “would be particularly unjust” to the father in circumstances where the Legal Aid Commission has seen fit to waive any such contribution by the mother.

The fees of Dr Q

1. I can see no reason why the parties should not contribute equally to the professional fees and disbursements of Dr Q.  Both parties consented to her appointment as single expert and they each required her to attend at the trial for cross-examination.  In these circumstances I consider it just that each of the parties bear one half of her total professional fees and disbursements.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 March 2018.

Associate: 

Date:  15 March 2018