Dansey & Dansey (No 7)

Case [2024] FedCFamC1F 455

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dansey & Dansey (No 7) [2024] FedCFamC1F 455

File number(s): SYC 3614 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 10 July 2024
Catchwords: FAMILY LAW – COSTS – Where the Independent Children’s Lawyer brought an application for costs – Where the parties opposed the application on the basis that it would cause financial hardship – Where the Court finds that both parties would suffer from financial hardship if a costs order was made – Where the Independent Children’s Lawyer’s application for costs is dismissed.
Legislation: Family Law Act 1975 (Cth) s 117
Cases cited:

Celan & Celan [2021] FamCA 228

Dansey & Dansey (No 4) [2023] FedCFamC1F 1068

Guild & Stasiuk (2020) 63 Fam LR 322; [2020] FamCA 348

Panwar & Panwar (2020) 63 Fam LR 44; [2020] FamCA 480

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Taggart & Taggart [2020] FamCAFC 66
Division: Division 1 First Instance
Number of paragraphs: 21
Date of last submissions: 4 June 2024
Date of hearing: In Chambers
Place: Sydney
Solicitor for the Applicant: Pearson Emerson Family Lawyers
The Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: G & D Lawyers

ORDERS

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DANSEY

Applicant
AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

10 JULY 2024

THE COURT ORDERS THAT:

1.The application for costs made by the Independent Children’s Lawyer is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. The Independent Children’s Lawyer (“the ICL”) seeks an order for costs on behalf of the New South Wales Legal Aid Commission (“Legal Aid”) in the amount of $45,476.20 to be paid equally between the applicant father (“the father”) and the respondent mother (“the mother”) following the finalisation of the substantive proceedings in relation to their children (“the children”). The ICL made an application for costs at the conclusion of the final hearing. Although the Court was informed at the time that the parties would be able to reach an agreement in relation to…

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AGLC
Dansey & Dansey (No 7) [2024] FedCFamC1F 455
Case
[2024] FedCFamC1F 455
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Dansey & Dansey (No 7) was heard before Judge Altobelli. The Independent Children’s Lawyer (ICL) applied for costs, which both parties opposed on the basis that it would cause financial hardship. The ICL’s application related to the costs accumulated until the final hearing of the parenting matter. The parties were ordered to file written submissions, and the Court considered the evidence and submissions in light of the relevant statutory provisions and case law.

The primary legal issue was whether the Court should exercise its discretion to order the parties to pay the costs of the ICL. Under section 117 of the Family Law Act 1975 (Cth), the Court may order costs if circumstances justify it, but must not order costs if a party would suffer financial hardship. The Court found that both parties were experiencing financial hardship and would suffer further hardship if ordered to pay the ICL’s costs. Judge Altobelli held that the application for costs should be dismissed on the basis that it would cause financial hardship to both parties.

In summary, the Court dismissed the ICL’s application for costs on the basis that both parties would experience financial hardship if ordered to pay the costs. The Court ordered that the application for costs made by the ICL is dismissed. This decision highlights the Court’s careful consideration of the financial circumstances of the parties when exercising its discretion to order costs in family law proceedings.

Orders

Orders of the court

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DANSEY

Applicant

AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

10 JULY 2024

THE COURT ORDERS THAT:

1. The application for costs made by the Independent Children’s Lawyer is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Both the mother and the father oppose the ICL’s application for costs. BRIEF BACKGROUND The Court heard the final hearing of the parenting aspect of this matter for 14 days throughout June and October 2023. On 13 December 2023, the Court delivered judgment and made orders for the father to have sole parental responsibility and for the children to live with him. The children were to spend no time and have no communication with the mother until 2 February 2024 at which point they would live with her for five nights per fortnight and increase to week-about time in 2026. Extensive reasons for judgment were provided, Dansey & Dansey (No 4) [2023] FedCFamC1F 1068 (“my reasons for judgment”). An urgent Application in a Proceeding was filed by the father on 15 February 2024 and the matter was reopened. Another interim hearing was held on 7 March 2024 and the Court suspended time between the children and the mother until 14 August 2024. However, it is noted that the ICL’s application for costs only relates to costs accumulated until the final hearing.PRESENT APPLICATION In support of his application, the ICL relies on his written submissions filed 26 April 2024. In support of her application, the mother relies on her written submissions filed 10 May 2024. In support of his application, the father relies on the following documents:(1)Written submissions filed 4 June 2024;(2)Financial Statement filed 29 September 2023;(3)His affidavit filed 25 January 2024; and(4)Orders made 31 May 2024.LEGAL PRINCIPLES The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Sections 117(3) and 117(4) sets out the matters the Court is to have regard to when determining the costs of the ICL: (3)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.(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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The common theme of the evidence adduced, and the submissions made, by both parties is that for all practical purposes their regular expenditure exceeds their regular income, and their liabilities exceed their assets. The Court accepts this. For present purposes they both experience hardship for the purposes of section 117(4) of the Act and certainly would experience hardship if ordered to pay the costs of the ICL.CONCLUSION In the circumstances of this case, therefore, the application for costs by the ICL is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.