Driscoll & Driscoll - [2008] FMCAfam 336

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRISCOLL & DRISCOLL

[2008] FMCAfam 336

FAMILY LAW – Costs – circumstances justifying order – financial circumstances of the parties – costs of independent children's lawyer.

COSTS – Costs of independent children's lawyer.

Family Law Act 1975, s.117

Applicant:

MS DRISCOLL

Respondent:

MR DRISCOLL

File Number:

MLC 3792 of 2007

Judgment of:

Riethmuller FM

Hearing date:

29 February 2008

Date of Last Submission:

29 February 2008

Delivered at:

Melbourne

Delivered on:

29 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms M L Mandelert

Solicitors for the Applicant:

Prior & Prior

Counsel for the Respondent:

Ms L Colla

Solicitors for the Respondent:

Berger Kordos Lawyers

ORDERS

There be orders, by consent, in terms of the Minute of Consent Orders signed by the parties personally and dated 29 February 2008 (“the Minute”) and further:
(a)The Minute be placed upon the court file.
(b)The solicitors for the applicant do engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 7 days.
(c)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
The husband pay the costs of the independent children’s lawyer, fixed at $1,000.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars these orders.

IT IS NOTED that publication of this judgment under the pseudonym Driscoll & Driscoll is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 3792 of 2007

MS DRISCOLL

Applicant

And

MR DRISCOLL

Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

This is an application by the independent children's lawyer for a costs order with respect to the costs of the independent children's lawyer for preparation for trial and counsel's fees on trial. Those two figures are respectively $930 and $1,760.
The matter involves parties who have one child under 18, F, born in 1993, and an older child. The parties have had litigation on foot since October 2006. It has involved four previous orders made in this court before coming on today for hearing and being resolved. The parties at the hearing needed effectively little or no court time, having largely resolved the matters themselves.
There were two issues that received some debate at the bar table, following which the parties reached consent orders. One of those issues related solely to property and therefore is not relevant to this argument; the other was some discussion about the extent to which parents and the court would have regard to and pay appropriate respect to the view of a child of 15 years of age.
The ICL points to the fact that previous orders of the court required the parties to participate in a roundtable dispute management conference (“RDM”) prior to the matter coming back on for trial. They were in fact orders that I made. It is not my practice to order an RDM in every case but to order them in cases where there seems to be some purpose to a roundtable dispute management conference at an appropriate point. This conference was scheduled at an appropriate point in the preparation towards a hearing in the hope that the children’s matter may be resolved without having to continue to a hearing, and to minimise the amount of time that the children, being old enough to be aware of litigation, must be the subject of litigious proceedings.
It is easy in litigation to fail to bear in mind the impact that it must necessarily have upon the children the subject of the dispute who are, in fact, the focus of the litigation and in the meantime trying to live their own lives, growing up. This is particularly so for teenagers who must grapple with all of the changes that happen in their lives and their growing maturity through what for many are not easy years.
The independent children's lawyer sent a letter to both parties’ solicitors for the parties, requesting that arrangements be put in place for a roundtable dispute management conference. That letter was only three days before the date when the RDM was ordered to have been completed. However, it seems to me that had the parties agree to participate in the RDM, the fact that it may have been held a few days or a week or so later than contemplated in the orders, whilst technically a breach of the orders, would not have undermined the benefits that were sought to be achieved by having the parties attend an RDM conference in the context of this particular case.
Attending such a conference would have resulted in some fees being payable to the ICL by Legal Aid. The amount is not clear. It seems that it would be something less than $500. In the circumstances where there is not clear evidence of the amount, it seems to me to be appropriate to proceed on the basis that it would have been in the vicinity of $500 as, on all parties’ accounts, it would be a little less than that.
The solicitors for the mother came into the matter late, taking over the file from a previous firm. It is said by them that soon after. If not on the day of receiving the letter, they telephoned the ICL to indicate her preparedness to participate in such a conference. Indeed, other aspects of the case indicate that the wife's new solicitors have gone to some efforts to ensure that the case was properly prepared and ready for trial and that she did participate in the processes required so that the matter could be brought to a conclusion.
It also seems that in other respects the solicitors and counsel for the father did likewise. As the change in the wife’s solicitors resulted in late material about other aspects of the case, that was dealt with on the run, so to speak, rather than have people pressing for adjournments and delays in the case. However, the letter from the independent children's lawyer seeking to arrange a roundtable dispute management was not responded to by the solicitors for the father, nor is it said that there was any telephone response to that letter.
I pause here to note that between solicitors, it does not seem to me to be of significance whether the response to such a request were to be by way of letter or by telephone call. Often it is cheaper to have a telephone call, particularly for such matters, and if there is an appropriate file note of such a call, it is unlikely to be challenged. The benefit of a letter is of course that there is then a written document which can be utilised by way of tendering it in evidence if some dispute arises later.
In the circumstances of this case, I accept, as was put from the bar table and not challenged by Mr Arnold, that the solicitors for the wife did telephone and indicate her preparedness to participate in such a conference.
In determining whether or not any costs order should be made under the Family Law Act, I must bear in mind the matters set out in s.117:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) 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) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(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.
(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.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Section 117(3) is in place to avoid any doubt about the proposition that an independent children's lawyer may receive the benefit of an order for costs to the effect that each party to the proceedings bears, in such proportions as the court considers appropriate.
Section 117(4) says that the court must not make an order for costs against a party in relation to an ICL if the party has received legal aid for the proceedings or the court considers that the party would suffer financial hardship if they had to bear the costs of the independent children's lawyer.
In making the decision about costs with respect to an independent children's lawyer, subsection (5) provides that the court must disregard the fact that the ICL is funded under a legal aid scheme or service established under a Commonwealth, state or territory law.
It is not suggested to me that either of the parties has received legal aid in respect of the proceedings. To the extent that there is financial hardship alleged, I shall deal with that in my examination of the matters under s.117(2). I note the injunction in s.117(5) and I do not take into account that the ICL has been provided with funds from the legal aid scheme.
The matters that are relevant are set out in s.117(2A). The first is the financial circumstances of the parties. The husband is unemployed and has been for some time. He has little or no capacity from his recurrent income to meet even the children's needs and relies upon moneys from the state for his own needs. The mother is working in a dental surgery on a low income and has two children that she contributes to and pays some child support to the father. The youngest child attends a Catholic school and the older attends university. Likewise, I do not find that she has any financial capacity from her day‑to‑day income or her recurrent income to meet any costs for the ICL.
However, in this case there is a pool of assets that the parties have made orders dividing that is in excess of $600,000. They therefore have significant capital resources which, as a result of the sale of real property, are available in a liquid form. Further, chattels are to be sold which would also be sold for more than the amounts of costs being spoken of in this case. I have regard to the detail of the financial circumstances of the parties set out in their financial statements. However, it goes largely to the fact that they are barely making ends meet, particularly having regard to the expenses of the children, including school fees. It is not suggested that either party is in receipt of assistance from Legal Aid.
The conduct of the parties in the proceedings that is relied upon is that outlined above; that is, that despite an order of the court to do so, arrangements were not made to attend a roundtable dispute management conference to be held by the ICL. Importantly, the ICL set out the child's views as expressed to the ICL in the letter of request for a conference and the matter ultimately settled substantially in accord with the views set out therein.
It appears to me that it is a significant failure on the part of the husband in not responding to the ICL's letter, nor attempting to properly participate in a roundtable dispute management conference. I do accept that it is not possible for the court in a case such as this to make any finding as to likelihood of the matter actually settling at the RDM or not settling at the roundtable conference, and indeed it would be unhelpful, it seems to me, to make specific inquiries or attempt to make specific findings of that type.
However, it is a factor that I can take into account in my general discretion under s.117: that is, that the husband did not participate in an alternative dispute resolution process requested by the ICL, ordered by the court and set at a time when it would be expected that it had a purpose to be served in preparation for trial and avoiding trial.
It is not said that the proceedings were necessitated by the failure of a party to comply with previous orders. It does not seem to me to be arguable that there was a percentage chance it would settle at the RDM and therefore from then on the proceedings were necessitated by the non-compliance with that order. Rather, it seems to me that this particular consideration is limited to circumstances such as where there is an existing substantive order that somebody has breached, causing direct costs.
It does not appear to me that any party in the proceedings has been wholly unsuccessful in the usual sense, although clearly the outcome in the children's matter is substantially in accord with the position that the ICL promoted to the parties when attempting to arrange a roundtable conference. Had the parties taken on board the propositions of the ICL at that time, then there would not have been costs incurred on the children's matters or at least far less than those that have been incurred today.
It is not said that any parties made any offers in writing to the other.
The final matter is "such other matters as the court considers relevant". In that regard, submissions have been made to me that it has been a high-conflict case and that there have been real benefits of the matter having an actual day for hearing to press the parties to a point where they had to either settle it or commence running their case for an adjudication, in circumstances where counsel have been briefed to review the file and provide detailed advice to their clients and provide high-level skills both with respect to the law and marshalling of the facts to ensure the case was at its full level of preparation and to engage in high-quality negotiations. I take these matters into account.
Having regard to all of the matters set out, I have come to the view that it is appropriate that there be some contribution by the husband to the costs of the ICL. In the circumstances of this case, it appears to me to be appropriate that he contribute $1,000 to the ICL's costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: