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 of 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

1. 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

1. 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.

2. 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.

3. 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)

4. The Independent Children’s Lawyer seeks an order for costs in the sum of $27,685.12 with $9,045.12 representing disbursements paid.

5. 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 considers just. The relevant considerations in relation to an order for costs are set out in section 117(2A).

6. The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s Lawyer, who is not a party.

7. The law is well settled that there is power under the section, subject to other statutory provision referred to below, to make orders for or against the Independent Children's Lawyer and the Court may make such order as to costs of the Independent Children's Lawyer and in such proportions in relation to each of the parties as the Court considers just (De Roma & De Roma [2013] FamCA 566).

8. Section 117(3) provides:

   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.

9. Section117(4) provides:

   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.

10. Section 117(5) provides:

    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.

11. The Independent Children’s Lawyer is to be treated as if unfunded.

12. In De Roma (supra) at [20] – [21] Watts J said:

    20.In considering what order (if any) is just, the legislation mandates that the court have regard to those matters set out in s 117(2A) FLA.

    21.All the matters set out in s 117(2A)(a)-(f) FLA relate to the circumstances and conduct of the parties during the proceedings. Section 117(2A)(a) FLA mandates the court have regard to “the financial circumstances of each of the parties to the proceedings”. As already discussed, the Independent Children's Lawyer is not a party to the proceedings. However, s 117(2A)(g) FLA, namely “such other matters as the court considers relevant”, is wide enough to enable the court to take into account matters relating to the Independent Children's Lawyer’s conduct during the proceedings.

13. Neither party submits that the conduct of the Independent Children’s Lawyer is in any way relevant.

14. Indeed, the Independent Children’s Lawyer played a substantial role in the proceedings where on hearing of the discrete issue as to vaccination both parties were unrepresented and where ultimately the Independent Children’s Lawyer facilitated mediation that resolved the matter on a final basis.

15. The Court is conscious of the restrictions provided for in s 117(4), that the Court must not make an order for costs in favour of the Independent Children's Lawyer against a party who has received legal aid in relation to the proceedings or if the Court considers that a party to the proceedings would suffer financial hardship by reason of such an order.

16. The relevant considerations to the Court’s determination are set out in section 117(2A), in particular s 117(2A)(g) as to “any other relevant matter”.

17. The Court is required to have regard to the financial circumstances of the parties.

18. Both parties contend that the consequence of an order for costs will be that they will suffer hardship. Both parties filed Financial Statements for the purpose of the present application.

19. The father is in full time employment earning about $95,000 per annum plus car allowance. He lives in rented premises. He has funds at bank of about $10,000, a car and a motorbike valued at $15,000. He has about $11,000 in superannuation. He asserts a significant debt to a company that he traded and that has ceased to trade in respect to which he proffers no evidence. He has the primary care of the parties’ two children and receives virtually no financial support from the mother.

20. The mother has been in part time employment since mid-July 2014. Property settlements proceeds were applied by her to her outstanding legal fees. She has over $95,000 in superannuation that she can access in circumstances of hardship. She lives in rented accommodation. She has minimal funds at bank and significant personal debt, mainly relating to the litigation.

21. Neither party is in receipt of a grant of legal aid.

22. The conduct of the proceedings and failure to comply with procedural Orders was set out by the Court in the earlier decision of Duke-Randall & Randall [2014] FamCA 126 in these proceedings. The mother’s conduct unnecessarily protracted the proceedings.

23. The Independent Children’s Lawyer played a significant role in these parenting proceedings, particularly where in the latter part both parties were unrepresented.

24. No submission was made that any of the other matters set out in s 117(2A) are relevant and that is the case.

25. As to “hardship” in the context of s 117(4), the Court is to consider the financial consequences for either or both parties if a costs order is made.

26. The father has funds at bank and a significant lifestyle asset in his motor bike. He is in full time employment. Otherwise, he may seek agreement from Legal Aid as to payment of any costs order on terms or a waiver of his liability under any order for costs in Legal Aid’s discretion as to whether to enforce any order for costs. He has not established hardship.

27. The mother’s financial circumstances are less favourable than that of the father. She has significant personal debt. However, in circumstances of hardship she may make application to access her superannuation. Otherwise, she may seek agreement from Legal Aid as to payment of any costs order on terms or a waiver of her liability under any order for costs in Legal Aid’s discretion as to whether to enforce any order for costs. Overall, she has not established hardship such as to warrant there being no order for the Independent Children’s Lawyer’s costs against her.

28. The Independent Children’s Lawyer’s role in the in the proceedings was crucial to final resolution of all issues.

29. Orders as sought by the Independent Children’s Lawyer as to costs will be made against both parties as set out at the forefront of these reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 August 2014.

Legal Associate:       

Date:    1 August 2014