Duke and Randall (No 2) - [2014] FamCA 607

FAMILY COURT OF AUSTRALIA

DUKE & RANDALL (NO 2)

[2014] FamCA 607

FAMILY LAW – COSTS – Application by Independent Children’s Lawyer for costs – Where both parties seek that no costs order be made against them because of financial hardship – Where the Independent Children’s Lawyer had a substantial role in the proceedings - Where the parties’ respective financial positions do not satisfy “hardship” in terms of Section 117(4) of the Family Law Act 1975 (Cth) so as to warrant no order for costs being made against each of them – Parties to equally bear costs of the Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 117, 117(2), (2A), (3), (4) & (5)

De Roma & De Roma [2013] FamCA 566
Duke-Randall & Randall [2014] FamCA 126

APPLICANT:

Ms Duke

RESPONDENT:

Mr Randall

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Penrith

FILE NUMBER:

PAC

2327

2011

DATE DELIVERED:

1 August 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 June 2014

REPRESENTATION

THE APPLICANT:

Self-represented Litigant

THE RESPONDENT:

Self-represented Litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Penrith

Orders

That, subject to either or both parties obtaining a waiver of any contribution to the Independent Children’s Lawyers costs from New South Wales Legal Aid within one (1) month from the date of these Orders, within two (2) months from the date of these Orders:
(a)the mother pay to Legal Aid New South Wales the sum of $13,842.56;and
(b)the father pay to Legal Aid New South Wales the sum of $13,842.56.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duke & Randall (No 2)has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2327 of 2011

Ms Duke

Applicant

And

Mr Randall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The present application is an application by the Independent Children’s Lawyer seeking orders that the parties, the mother and the father of the subject children, pay the Independent Children’s Lawyer’s costs.
Parenting proceedings before the Court were protracted and the Independent Children’s Lawyer has been engaged from November 2011 until Final Orders were made by consent on 18 June 2014.
The proceedings involved a splitting of the final hearing to facilitate a determination as to the issue of vaccination of the children (Duke-Randall & Randall [2014] FamCA 126)
The Independent Children’s Lawyer seeks an order for costs in the sum of $27,685.12 with $9,045.12 representing disbursements paid.
The law as to costs is well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duke and Randall (No 2)

Details

AGLC: Duke and Randall (No 2) [2014] FamCA 607
Case: [2014] FamCA 607
Decision Date: 1 August 2014

CaseChat Overview and Summary

In *Duke and Randall (No 2)*, Foster J of the Federal Circuit Court of Australia considered the financial contributions of the mother and father towards the costs of the Independent Children’s Lawyer. The dispute concerned the apportionment of these costs between the parties.

The central legal issue before the court was how to fairly distribute the outstanding costs of the Independent Children’s Lawyer between the mother and the father, subject to a condition regarding Legal Aid New South Wales.

Foster J ordered that, provided either or both parties successfully obtain a waiver of contribution towards the Independent Children’s Lawyer’s costs from Legal Aid New South Wales within one month, then within two months, both the mother and the father are to pay the sum of $13,842.56 to Legal Aid New South Wales.

Orders

Orders of the court

That, subject to either or both parties obtaining a waiver of any contribution to the Independent Children’s Lawyers costs from New South Wales Legal Aid within one (1) month from the date of these Orders, within two (2) months from the date of these Orders:

(a) the mother pay to Legal Aid New South Wales the sum of $13,842.56;and

(b) the father pay to Legal Aid New South Wales the sum of $13,842.56.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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