Chatterjee and Woodby-Chatterjee (No. 3)

[2018] FamCA 1002

FAMILY COURT OF AUSTRALIA

CHATTERJEE & WOODBY-CHATTERJEE (NO. 3) [2018] FamCA 1002

FAMILY LAW – COSTS – where the ICL seeks a contribution to costs from both parties – where the Court finds it is not just for either party to contribute to the ICL’s costs – costs application dismissed.

Family Law Act 1975 (Cth) s117
Chatterjee & Woodby-Chatterjee (No. 2) [2018] FamCA 611
APPLICANT:	Mr Chatterjee

RESPONDENT: Ms Woodby-Chatterjee

FILE NUMBER: SYC 3822 of 2013

DATE DELIVERED: 28 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 2, 3 & 4 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Bricknell Legal Solicitors

SOLICITOR FOR THE RESPONDENT: G & D Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Stolier

INDEPENDENT CHILDREN’S LAWYER Brian Samuel & Associates

Orders

1. That the Independent Children’s Lawyer’s costs application be 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 Chatterjee & Chatterjee-Woodby (No. 3) 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 BRISBANE

FILE NUMBER: SYC 3822 of 2013

Mr Chatterjee

Applicant

And

Ms Woodby-Chatterjee

Respondent

REASONS FOR JUDGMENT

Introduction

1. Arising from a final hearing on competing parenting applications heard by me over three days commencing 2 July 2018, the Independent Children’s Lawyer (“ICL”) seeks an order that the father, Mr Chatterjee and the mother, Ms Woodby-Chatterjee contribute equally to the ICL’s costs estimated to be $33,000 (inclusive of GST).

2. On 9 August 2018 the Court made directions for the filing of written submissions as to costs, and the Court has received and considered:

   a)the ICL’s written submissions filed 19 August 2018; and

   b)the father’s written submissions filed 12 September 2018.

3. The mother has not filed any submissions although she has been given the opportunity to do so.

4. As my published Reasons make clear, (see Chatterjee & Woodby-Chatterjee (No. 2) [2018] FamCA 611), after 9 days of hearing before Stevenson J in April 2018, her Honour decided to bifurcate the matter hiving off the parenting dispute. My understanding is that the financial dispute, in which her Honour was part-heard, proceeded to completion and judgment was reserved.

5. I indicated, when the trial commenced before me, that I was hearing the competing applications fresh and as a result, I am not able to estimate how much of the 9 days of trial before Stevenson J related to financial issues and how much related to parenting issues.  I accept the submission of the ICL, that although proceedings commenced by the father were filed in the Federal Circuit Court of Australia in July 2013, the ICL was not appointed until 2017.  The ICL says his estimate of costs arises from 2 May 2017.  The costs “includes instructing fees and Counsel’s fees for two (2) trials… in addition there were a number of interim hearings between the parties following the appointment of the ICL”.

6. In these circumstances, I do not regard the quantum of fees estimated by the ICL to be unreasonable.  I also accept that the ICL makes the application for costs in accordance with his instructions by Legal Aid New South Wales.

7. Although the standard rule is that each party bears their own costs (s.117(1) of the Family Law Act 1975), costs may be ordered if the Court is satisfied that there are circumstances that justify making a costs order, subject to subsection (2A) and where to avoid doubt s.117(3) prescribes that the Court may make an order for costs in favour of the ICL as the Court considers just.  Relevantly, s.117(4) provides:

   (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.

1. There is no evidence either party had received legal aid.  I have no evidence about the parties’ current financial position, and it was not an issue at the hearing before me of relevance.

2. In summary, the father’s submissions, prepared by his Counsel, make the following contentions of substance:

   a)The father sought orders for equal time and that is what the Court ordered finally;

   b)The father has no capacity to meet the costs application and if he is successful in his property application, such that the binding financial agreement is not set aside, then his share of funds in a controlled monies account will be used to pay his parents who are owed substantial funds;

   c)He has already paid for the two expert reports by Dr W and for him to give evidence, as required by all parties (including it must be said, the ICL);

   d)The mother’s conduct, in failing to abide by an agreement reached on 12 April 2018 to settle the future parenting arrangements, broke down essentially, the father contends, because the mother changed the terms of the agreement and introduced new issues about schooling.  Because the first trial Judge had been appraised of the negotiations and, the father says on the mother’s application, the Judge was asked to recuse herself, although the father and the ICL opposed her disqualification.  Be that as it may, it would not be fair to expect the mother to bear more of the costs because the Judge recused herself in these circumstances;

   e)Although the father agrees with the submission made by the ICL as to the evidence of Dr W being “clear and unequivocal”, the mother did not accept that evidence.  She was not bound to do so.  As the determination makes clear, the final order for equal time from the commencement of the 2019 school year, provides the children ultimately with more time with the father than the “agreement” in April 2018;

   f)The mother’s conduct, the father says, in respect of her application to relocate to Northern New South Wales, only to abandon that position four years later, requires censure.  I am not satisfied, having seen these parents in the witness box, that had the mother withdrawn her relocation application at a much earlier date, the parties could have resolved the parenting matter.  The mother opposed equal time and that was her position to the final trial.  Their ongoing conflict was not abated – and the vaccination dispute is another manifestation of that conflict; and

   g)The father points to offers he made to settle the parenting dispute.  Such offers reveal a willingness to explore resolution, none of which found favour with the mother  The father (at paragraph 56) says that when considering the history of the offers and course of the litigation as a whole, the Court would not order the father to bear any responsibility for payment of the ICL’s costs.

3. In the end analysis, at paragraph 59 of the written submissions, the father contends that:

   59.      The father submits that it was be against the notions of justice and equity for him to be ordered to pay any part of the ICL’s costs.  Not only would it cause him financial hardship, but, also, it is clear that he attempted to bring the matter to finality and prior to the appointment of the ICL. Had the mother exhibited any semblance of reasonableness after the release of the March 2014 Report, the ICL’s appointment would have been unnecessary.”

Discussion

1. The ICL is funded, via Legal Aid, effectively by the public purse.  If orders for costs, properly made, are not pursued then some replenishment of reserves available for other matters does not occur.

2. In many cases involving an ICL, they fund Court experts or usually, particularly in New South Wales, the Court does via a Family Consultant.  In this case, relevantly in my view, the father has paid for the Court expert, at a cost exceeding $10,000.  I accept this submission that it is not likely the mother will contribute to those costs.

3. It is unfortunate, as seems the case, that the ICL and briefed Counsel, were engaged in a nine day trial which, I am prepared to accept was mostly directed to the financial issues.  The fact that, in essence, the recusal of the Judge meant the time spent on parenting issues was of little value for the second trial before me, is not something that either party or the ICL could avoid.

4. In all the circumstances, I have formed the view that the circumstances in this case do not justify the father paying a proportion of the ICL’s costs.

5. In respect of the mother, in the absence of any submissions, and although the mother’s conduct throughout could be considered concerning, my understanding from the hearing was that the father had a superior income to the mother and that she had few assets.

6. On balance, I would not regard it as just for the mother to contribute to the ICL’s costs either.

7. The ICL’s application for costs will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 November 2018

Associate: 

Date:  28 November 2018